In Re The Marriage Of: Mark Steven Brown v. Julie Brown (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 29 2016, 9:08 am

regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Matthew J. McGovern Robin R. Craig Anderson, Indiana Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re The Marriage Of: January 29, 2016

Mark Steven Brown, Court of Appeals Case No. 65A01-1502-DR-70 Appellant-Respondent, Appeal from the Posey Circuit v. Court The Honorable Maurice Julie Brown, O’Connor, Special Judge Trial Court Cause No. Appellee-Petitioner. 65C01-1004-DR-104

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016 Page 1 of 21 [1] Mark Steven Brown (“Father”) appeals from the trial court’s order modifying

his weekly child support payment. Father raises two issues which we revise and

restate as:

I. Whether the court’s findings regarding his weekly gross income are clearly erroneous; and

II. Whether the court abused its discretion in ordering him to pay attorney fees.

We reverse and remand.

Facts and Procedural History [2] Father and Julie Brown (“Mother”) were married in 1993 and have three

children. The trial court entered a final decree in August 2010 dissolving the

parties’ marriage which provided in part that the parties would have joint

physical and legal custody of the children with each parent having custody

approximately one-half of the time. The decree further provided that the parties

agreed to equally provide the children’s living and extracurricular expenses,

Father would maintain health insurance on the children as long as he is able to

do so at a reasonable rate, the parties would equally divide any uninsured

medical expenses, and that if Father is not able to obtain health insurance at a

reasonable rate then the parties would split the costs of insurance premiums

equally. The decree also provided that neither Mother nor Father would pay

child support and that “[t]his is based on the fact that both parties make

substantially the same income, that the parties are sharing equally parenting

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time and that the parties are also sharing equally any and all expenses

associated with the minor children.” Appellant’s Appendix at 15. [3] On October 20, 2011, Mother filed a petition to modify child custody, parenting

time, and support alleging there had been a substantial and continuing change

in circumstances and requesting attorney fees. On November 14, 2011, Father

filed a petition to modify requesting a hearing. In August 2012, Mother’s

counsel sent Father a subpoena to produce “a copy of all of his taxes including

all attachments for the years of 2009, 2010, and 2011, any exhibits that he plans

to use in trial, his three most current pay stubs, any visitation log that he keeps,

any bank loan applications, and the last 6 months bank statements.” Id. at 46.

Father produced the first page of his bank statements for four months, including

statements with the statement dates of April 12, May 13, June 13, and July 15,

2012. [4] The court held modification hearings on October 11, 2012, and March 8 and

13, 2013. The parties presented testimony and numerous exhibits related to a

number of issues including the children’s activities and medical needs and the

income and employment of Mother and Father. The evidence related to

Father’s weekly gross income included certain tax records and bank statements

and the testimony of Father, his business partner, and a union representative. [5] Jason Farmer testified that he and Father are the sole shareholders and sole

employees of Precision Glass and Glazing Inc., that the business was started in

2008, and that the business does commercial glass and glazing work. When

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asked his typical work schedule, Farmer replied “[u]sually 6:00 to 3:30” and

stated “that’s our set schedule, Monday through Friday, that we actually work”

and that “if there’s somethin’ goin’ on you don’t have to be there since we’re

owners. But that’s our normal set schedule.” Transcript at 275. He stated that

Father typically arrives later on Wednesday and Friday mornings due to having

his children, that Father has had to leave early sometimes for different things,

and when asked how many times a month Father rearranges his work schedule,

Farmer stated “there’s definitely a good handful of times a month that he has to

. . . maneuver different things for things that he’s got going on. Maybe a half

dozen a month, just guessing.” Id. at 276. When asked if “you guys take off a

little earlier on Friday afternoon,” Farmer testified “our attempt is to Fridays

are half days. And it just really depends. It works out good sometimes, other

times if we’re busy we work all day. So it’s really up and down. But it’s usually

pretty flexible where we can get off early on Fridays.” Id. at 276-277. When

asked “[i]n a typical month how often are you off on Friday afternoon,” Farmer

replied “Oh, I would say usually probably three out of the four.” Id. at 277.

When asked “[h]ow do you keep track of who worked how many hours,” he

stated “[t]here’s really no reason to. It’s just the two of us.” Id. at 282. [6] Farmer further indicated that he and Father are members of a union, that their

business adheres to the collective bargaining agreement of the union, and that

there was a union pay scale. When asked the current union scale per hour for

employees, Farmer answered “I believe it’s $28.00 somethin’.” Id. at 284.

When asked “if [Father] sent an email to [Mother] saying that he normally has

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forty hours of work in before Friday ever roles [sic] around, would you agree

with that or disagree,” Farmer replied “[k]inda depends, I mean, some days we

work later than others, so . . . ,” and when asked “[w]ell if he said he usually

has forty hours in before Friday . . .,” Farmer said “[i]f he said it, then I would

say yes.” Id. at 284-285. When asked “[w]hen you do take off early on Friday

if it’s not so busy, what time of the day do you leave,” Farmer replied “[w]e try

to leave by noon,” and when asked “on the fourth Friday how long do you

work,” he said “[i]t depends. It can be till 2:00, till 3:00 or 4:00. It really just

depends.” Id. at 285. When asked “[i]s there ever weekend work,” Farmer

replied “[s]ometimes, not very often.” Id. at 286. [7] Father testified that he and Mother filed a joint tax return in 2009 and his wages

for that year were $6,000. He further testified that his income in 2010 was

$40,257, his income in 2011 was $33,514,1 and that the average of those

amounts is a pretty good representation of his annual income. The court

admitted several of Father’s tax records, including the 2009 joint tax return with

attachments and tax statements for 2010 and 2011. Father’s W-2 wage and tax

statement for 2009 from Precision Glass and Glazing Inc. shows his wages were

$6,000, the 2009 joint tax return shows income from a partnership of $16,704,

and the attached Schedule E shows total income from Precision Glass and

1 The record does not contain Father’s 2011 tax return, but it does include his W-2 wage and tax statement for 2011 showing he received wages from his business of $1,500, and a completed State of Indiana estimated tax worksheet stating his total estimated income for 2011 as $39,691.

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Glazing Inc. of $16,704.2 Thus, according to the 2009 tax return, Father’s

income in 2009 was $22,704. Father’s W-2 wage and tax statement for 2010

shows that he received wages from Precision Glass and Glazing Inc. of $3,000

in 2010, and his Schedule K-1 shows that he owned fifty percent of the business

and that his ordinary business income for that year was $37,257. Thus,

according to these tax statements, Father’s income in 2010 was $40,257.3 [8] The court also admitted an affidavit of Eric Tasa, a business agent for Glaziers

Local 1165, which stated that Father participates in the union as an owner, that

Father pays dues of $33.50 per month and four percent of gross reported

income from field work, and that income associated with office work or

estimating work does not require payment of the four percent dues. [9] Father testified that the union requires that he and Farmer submit a minimum

of twenty hours whether or not they “actually worked twenty hours on job

sites” and that they “pay four percent of whatever [they] turn in,” which varies

from month to month. Id. at 335. When asked if they typically submit just

twenty hours, Father testified “[w]ell we weren’t so much in the beginning, but

that’s what we’ve been basing it on now, unless we do actually work a lot of

hours in the field” and that “[w]e weren’t real clear on what we had to do and

2 Schedule E shows nonpassive income of $21,158 and a Section 179 expense deduction of $4,454 from Form 4562 which relates to depreciation and amortization. 3 When recalled at a later hearing held on May 1, 2014, and asked if he reported $31,818 as his income in 2011 and $2,161 as his income in 2010, Father answered affirmatively. It is unclear why these amounts differ from his original testimony and the tax statements discussed above. Also at this hearing, when asked how much he reported as his income in 2013, Father answered “roughly $26,000.” Transcript at 591.

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how we had to report it, just being new.” Id. at 336. When asked his practice

now, he answered: “Twenty hours unless we do work a lot of . . . I mean, most

of the time it’s twenty hours.” Id. [10] Later, when asked the last time he made $71,000 a year as indicated in one of

Mother’s worksheets,4 Father testified that he never made that much in a year.

When asked his typical wage when he worked full-time for someone else,

Father testified that he worked a lot of overtime one year and made $55,000

and that the average was in the range of $40,000 to $45,000. Father agreed that

the bank statement dated April 12, 2012, showed he had made four deposits

which totaled approximately $5,277; the statement dated May 13, 2012 showed

he had made four deposits which totaled $5,300; the statement dated June 13,

2012 showed he had made four deposits which totaled $4,600; the statement

dated July 15, 2012 showed he had made five deposits which totaled $5,066;

and that all of the deposits came from his ownership of his business or his

payroll.5 Father further agreed that the total of the deposits for the four-month

period was $20,243, that four months covers about one-third of a year which is

about seventeen weeks, and that this would correspond to an average weekly

deposit of $1,190.

4 Mother’s Exhibits 1 and 2 contain child support worksheets which used figures for Father’s weekly gross income of $1,560 and $1,071, respectively. 5 The four bank statements together covered the period of March 13 through July 15, 2012.

Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016 Page 7 of 21 [11] When asked “do you remember sending . . . an email acknowledging to

[Mother] that you usually have your forty hours in before Friday,” Father

replied “[y]es.” Id. at 480. When later asked “[w]hen you say you have your

forty hours in, are those all hours that you can bill clients for,” Father

responded “[a]bsolutely not” and testified: “If we’re not physically on a job

doing a job, it’s not a billable job. So if I’m in the office, as this week I’ve been

in the office all week, no billable work. But I’ve been there all week.” Id. at

509. He indicated that there are months which are busier than others, and

when asked “[a]nd these three months, April, May, would you consider those

to be busy months,” Father answered “[s]ince we’ve been in business, that time

of year has been about the busiest time of year.” Id. When asked if there are

other months where his income is dramatically reduced, he answered

affirmatively and stated that, since he started the business, he has had weeks

where he had no paycheck and that the four months were not representative of

a typical month. Father further indicated that his income tax returns were the

most reflective of his income “overall throughout the year.” Id. at 510. When

asked what he would earn working for another employer, Father said he did not

know an exact amount but “would say it would probably be in the range of

high $40,000.00, $50,000.00, somewhere in that range.” Id. Father also

testified that his business did not provide him with a car or lodging or reimburse

any of his meals. [12] The court also heard testimony from Eric Tasa that a collective bargaining

agreement governs pay rates and that the wage for union workers is $26.78 per

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hour, and time-and-a-half for any hours over forty hours a week. Tasa

indicated that an owner/operator is not required to report all hours to the

union. When asked if there were any rules with the union regarding how many

hours must be reported, he stated: “Not that I can recall right now. There may

be a guideline somewhere. I think at one timei [sic] was told it might be twenty

hours. But I’m not exactly sure on that.” Id. at 560. When asked “[s]o if I’m

an owner/operator I could work sixty hours and pay myself for twenty-five,”

Tasa answered “[c]orrect.” Id. When asked “[s]o I could voluntarily choose to

treat myself worse than I treat my employees,” Tasa replied affirmatively, and

when asked “if I’m running a profitable business I’m gonna make it up in

dividends or other ways,” he answered “I suppose. I don’t know how our

business partners pay themselves.” Id. at 561. [13] Tasa also indicated that union glaziers are not guaranteed forty hours a week

for fifty-two weeks a year, that work had been very slow for the last two or three

years and consequently the union lost quite a bit of membership, and that he

noticed work had started to pick up around the beginning of 2014. When asked

“$26.78 [] sounds like a pretty good wage, but you’re not guaranteed forty

hours a week,” Tasa testified “[c]orrect. And that’s one of the reasons why we

try to negotiate [a] good wage,” and when asked “[y]ou’re not workin’ year

round,” he said “[r]ight. At least some of the people aren’t.” Id. at 563. Tasa

stated he was not sure of the current average pay for a union glazier but that it

could be between $40,000 and $50,000 depending on how much work is out

there.

Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016 Page 9 of 21 [14] On May 1, 2013, Mother filed a submission of attorney fees which included an

attached detailed billing statement showing a total billable amount of

$12,635.64, and the court held additional hearings on August 26, 2013, and

May 1, 2014. The parties introduced or filed several proposed child support

worksheets. Father submitted three child support worksheets which used a

figure of $680.48 as his weekly gross income to calculate his weekly support

obligation. Mother submitted one worksheet which used $1,560 as Father’s

weekly gross income and a second worksheet which used $1,071. Her counsel

stated that the figure in the first worksheet showed Father’s income based on

the hours he is actually working and that the amount coincides with Father’s

bank statement deposits, and that the figure in the second worksheet was

Father’s union rate for forty hours a week. Following the hearings, the parties

filed proposed orders. [15] On January 23, 2015, the trial court entered an order that Mother have primary

physical custody of the three children, that Father have certain parenting time,

and that Father pay child support in the weekly amount of $313.09 based on a

weekly income of $693 per week for Mother and $1,560 per week for Father.

The court found that Mother had voluntarily given up a position with a former

employer and $693 per week represented the higher of her 2010 and 2011

average earnings. [16] With respect to Father’s weekly income, the court found that Father’s current

hourly rate is “twenty-eight something,” an hour, that “$28.00 an hour at 40

hours a week would be $1,120.00 earned income,” and that “[a]n additional 10

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hours a week overtime would be an additional $420.00 per week of earned

income. . . .” Appellant’s Appendix at 158. The court also found that, doing

the same work Father is doing now, working for any other employer in the

union, he would be earning $1,560, but he earns substantially less because he

chooses to continue working for himself and only pays himself for part of the

work he performs. The court noted that Father received dividends throughout

the year, that his bank statements indicate he “deposited a total of $20,243.56 of

payroll or dividends into his personal account” during a four-month time

period, and that this amount “represents a monthly average of $5,060.00, which

is the amount [Father] would be earning doing the same union work for the

same number of hours, if he worked for any other union employer.” Id. at 159.

The court also ordered Father to pay $300 per month to Mother for twelve

months to be applied toward her attorney fees.

Discussion

I. [17] The first issue is whether the trial court’s determination of Father’s weekly gross

income for purposes of calculating his weekly child support obligation is clearly

erroneous. “We place a ‘strong emphasis on trial court discretion in

determining child support obligations’ and regularly acknowledge ‘the principle

that child support modifications will not be set aside unless they are clearly

erroneous.’” Lea v. Lea, 691 N.E.2d 1214, 1217 (Ind. 1998) (quoting Stultz v.

Stultz, 659 N.E.2d 125, 128 (Ind. 1995)). “Findings are clearly erroneous only

when the record contains no facts to support them either directly or by Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016 Page 11 of 21

inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is

clearly erroneous if it relies on an incorrect legal standard. Menard, Inc. v. Dage-

MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000), reh’g denied. We give due regard

to the trial court’s ability to assess the credibility of witnesses. Id. While we

defer substantially to findings of fact, we do not do so to conclusions of law. Id.

We do not reweigh the evidence; rather we consider the evidence most

favorable to the judgment with all reasonable inferences drawn in favor of the

judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999). [18] Ind. Code § 31-16-8-1 governs modification of child support orders and

provides in part:

(a) Provisions of an order with respect to child support . . . may be modified or revoked. (b) Except as provided in section 2 of this chapter, modification may be made only: (1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or (2) upon a showing that: (A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and (B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016 Page 12 of 21 [19] Father contests the trial court’s determination of his weekly gross income for

purposes of calculating his child support obligation. He argues that he never

earned over $40,257 per year and yet the trial court found his income was

$81,120 annually, that the court had no authority to impute income to him, that

he pays himself for all work he performs, and that it is not the trial court’s role

to force him to change his job and give up his business in order to maximize his

income. He maintains that the trial court’s finding and Mother’s assertion that

he “works more than 40 billable hours per week have no foundation in evidence

whatsoever and are clearly erroneous.” Appellant’s Brief at 18-19. He notes

that the court found he pays himself forty hours per week through the union

although there is no evidence of this and that he generally reports only twenty

hours per week through the union. [20] Father further contends that he receives income from both payroll and

dividends from his ownership in his business, that his tax returns and quarterly

estimated taxes reflect this, and that “[t]here is absolutely no evidence that [his]

dividends and hourly income do not match all available income to him.” Id. at

19. He states there is no evidence that all of his hours are billable and in fact

there is evidence to the contrary, that much of his time is consumed with

administrative and non-billable time, and he has had weeks where all of his

hours were administrative and non-billable. He also notes the testimony of the

union representative that glaziers are not guaranteed forty hours per week.

Finally, Father argues that his bank statements do not support the court’s

determination of his weekly income and that the bank deposits averaged

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approximately $1,125 per week, far below the $1,560 per week figure set by the

court. [21] Mother maintains that the record contains sufficient evidence to support the

court’s finding. She argues that Father’s standard work hours are 6:00 a.m. to

3:30 p.m., Monday through Thursday with a half day on Friday, that Father

admits he usually has worked forty hours before Friday, and that he sometimes

works a full day on Friday and sometimes on weekends. Mother further argues

that the deposits into Father’s personal bank account “demonstrate annual

earnings of over $60,000 per year, when he deposited at least $20,243 in a 4

month time period.” Appellee’s Brief at 18. She also argues that Father could

have produced a full year’s worth of bank statements to support his claim that

the four-month time period was not indicative of his annual earnings. [22] Indiana Child Support Guideline 3A(1) provides in part that “weekly gross

income” is defined “as actual weekly gross income of the parent if employed to

full capacity, potential income if unemployed or underemployed, and imputed

income based upon ‘in-kind’ benefits” and that “[w]eekly gross income of each

parent includes income from any source, except as excluded below, and

includes, but is not limited to, income from salaries, wages, commissions,

bonuses, overtime, partnership distributions, [and] dividends, . . . .” [23] Indiana Child Support Guideline 3A(2) provides in part that weekly gross

income “from self-employment, operation of a business, rent, and royalties is

defined as gross receipts minus ordinary and necessary expenses,” that weekly

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gross income “from self-employment may differ from a determination of

business income for tax purposes,” and that “[e]xpense reimbursements or

in-kind payments received by a parent in the course of employment,

self-employment, or operation of a business should be counted as income if they

are significant and reduce personal living expenses” and “[s]uch payments

might include a company car, free housing, or reimbursed meals.” [24] The Commentary to Guideline 3A provides, with respect to self-employment,

that calculating weekly gross income for the self-employed presents unique

problems and calls for careful review of expenses, and that “[t]he principle

involved is that actual expenses are deducted, and benefits that reduce living

expenses (i.e. company cars, free lodging, reimbursed meals, etc.) should be

included in whole or in part.” Subsection 2(a) to Commentary to Guideline

3A. [25] With respect to overtime and irregular income, the Commentary further

provides that “[t]here are numerous forms of income that are irregular or

nonguaranteed, which cause difficulty in accurately determining the gross

income of a party” and that examples include “[o]vertime, commissions,

bonuses, periodic partnership distributions, [and] voluntary extra work and

extra hours.” Subsection 2(b) to Commentary to Guideline 3A. It also

provides that “[e]ach of the above items is sensitive to downturns in the

economy,” “[t]he fact that overtime, for example, has been consistent for three

(3) years does not guarantee that it will continue in a poor economy,” “it is not

the intent of the Guidelines to require a party who has worked sixty (60) hour

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weeks to continue doing so indefinitely just to meet a support obligation that is

based on that higher level of earnings,” and that “[c]are should be taken to set

support based on dependable income, while at the same time providing children

with the support to which they are entitled.” Id. [26] The trial court did not find, and the evidence to which the parties point does not

show, that Father is voluntarily unemployed or underemployed.6 See Support

Guideline 3A(1) (stating in part that weekly gross income is defined as actual

weekly gross income of the parent if employed to full capacity and potential

income if unemployed or underemployed). In fact, Mother’s position is that

Father receives his union hourly rate for forty hours and time-and-a-half for an

additional ten hours each week. Thus, we turn to the evidence of Father’s

actual earnings. [27] The basis for the trial court’s calculation of Father’s weekly gross income was

its Finding 14 that Father “testified that he typically works 50+ hours per week,

however he only pays himself for 40 hours a week through the union.”

Appellant’s Appendix at 158. Finding 14 is a verbatim recitation of a proposed

finding contained in Mother’s proposed findings of fact and conclusions of law.

In Finding 15, the court found: “$28.00 an hour at 40 hours a week would be

$1,120.00 earned income. An additional 10 hours a week overtime . . . would

6 Under the Support Guidelines, if a court finds a parent is voluntarily unemployed or underemployed without just cause, it may calculate support based on the parent’s potential income. See Ind. Child Support Guideline 3A(3); Commentary to Guideline 3A(2)(c).

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be an additional $420.00 per week of earned income, so a weekly earned

income of $1,560.00.” Id. Finding 15 is also a verbatim recitation of Mother’s

proposed findings. The addition of $1,120 and $420 is $1,540, not $1,560. This

mistake was copied in the court’s findings from Mother’s proposed findings.

Further Mother does not direct us to evidence that Father works a weekly

average of fifty or more hours at his union pay rate for fifty-two weeks per year

and that all of those hours are billable. [28] We turn to the evidence of the bank statements, tax records, and testimony

admitted at the hearings. The record establishes that Father receives income

from his business in two forms, namely, in the form of wages as an employee

and in the form of distributions from the business by virtue of his ownership

interest. [29] Father’s personal bank account statements dated April 12, May 13, June 13,

and July 15, 2012, cover 124 days and show that Father received a total of

$20,243.56, which equates to approximately $1,142.78 per week. Father agreed

that the deposits constituted wage income and distributions from his business.

This average weekly deposit is substantially less than the $1,560.7 While the

trial court acknowledges that the deposits represent a monthly average of

$5,060, consistent with the bank statements admitted into evidence, it

7 Mother argues in her brief that the bank deposits demonstrate Father had annual earnings of over $60,000 per year. We observe that annual earnings of $60,000 corresponds to weekly income which is substantially less than $1,560 per week.

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nevertheless calculated Father’s weekly income to be $1,560 which corresponds

to an average monthly income of approximately $6,760.8 [30] The tax records show that Father’s income was $22,704 in 20099 and $40,257 in

2010,10 and Father testified that his income in 2011 was $33,514. While

income for tax purposes may differ from income for purposes of determining

child support, we observe that Schedule E attached to the 2009 joint tax return

shows that Father’s income from his business of $16,704 accounted for an

expense deduction of $4,454, that Mother does not argue that this expense was

not a business expense or that Father received benefits from the business that

reduced his living expenses, and that Father testified the business did not

provide him with a vehicle, lodging, or meals. Father’s tax records do not

support the court’s finding that Father’s weekly gross income is $1,560. [31] We next turn to the testimony related to Father’s work schedule and billable

hours. Mother cites to various portions of the transcript for the proposition that

Father works, and is paid for, over fifty hours of work each week; however, our

review of the cited portions does not support this. Farmer’s testimony, cited by

Mother, is that the business’s standard hours are 6:00 a.m. to 3:30 p.m. on

Monday through Friday, Father typically arrives later on Wednesday and

8 A weekly income of $1,560 per week amounts to $81,120 annually, which corresponds to $6,760 per month. 9 The 2009 joint tax return shows Father had wages of $6,000 and distributions from his business of $16,704. 10 Father’s 2010 W-2 statement shows he had wages of $3,000 and his 2010 Schedule K-1 shows he had business income of $37,257.

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Friday mornings he and Father leave by noon on Fridays and do so at least

three Fridays a month, and that there was not often work on the weekends.

Father testified that if he and Farmer were not physically on a job the hours

were not billable, and that if he is in the office, the hours are not billable, and he

has had weeks where he had no paycheck. [32] Care should be taken to set support based on dependable income. See

Subsection 2(b) to Commentary to Guideline 3A. The testimony was that not

all of Father’s work is billable, and the tax and bank records support this

testimony. Further, there is no finding Father is voluntarily underemployed or

that his income for support calculation purposes should include any potential

income he could earn by working additional billable hours. See Sandlin v.

Sandlin, 972 N.E.2d 371, 375 (Ind. Ct. App. 2012) (noting “the Guidelines do

not require or encourage parents to make career decisions based strictly upon

the size of potential paychecks, nor do the Guidelines require that parents work

to their full economic potential” and that “[i]t is not our function . . . to approve

or disapprove of the lifestyle of [parents] or their career choices and the means

by which they choose to discharge their obligations in general”) (citations

omitted). [33] Based upon the evidence set forth above and in the record, we conclude that the

court’s finding of Father’s weekly gross income for purposes of calculating his

child support obligation is clearly erroneous. We remand with instructions to

recalculate Father’s weekly gross income and to determine the amount of any

credit to which Father may be entitled for any overpayment of support. See

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Sandlin, 972 N.E.2d at 377 (noting there was no evidence suggesting the

mother’s income was $1,067 per week and that the only portion of the record

where this number appeared was the mother’s child support worksheet, and

remanding with instructions to evaluate the evidence presented and determine

the mother’s income).

II. [34] The next issue is whether the trial court abused its discretion in ordering Father

to pay attorney fees. Father argues that the attorney fee award was based upon

a completely false evidentiary basis, and that the respective earning capacities of

the parties are in relative parity. Mother argues the court did not abuse its

discretion in ordering a modest award of attorney fees, that she incurred in

excess of $12,500 in attorney fees prior to May 1, 2013 plus fees for work after

that date, and it does not appear Father objected or responded to her

submission on attorney fees in any manner. [35] Pursuant to Ind. Code § 31-16-11-1, a trial court may periodically order a party

to a child support proceeding to pay a reasonable amount for attorney fees. See

also Ind. Code § 31-17-7-1 (same for proceedings for modification of custody

and parenting time). The award of attorney fees is discretionary. Whited v.

Whited, 859 N.E.2d 657, 665 (Ind. 2007). In assessing attorney fees, the trial

court may consider such factors as the resources of the parties, the relative

earning ability of the parties, and other factors that bear on the reasonableness

of the award. McGuire v. McGuire, 880 N.E.2d 297, 303 (Ind. Ct. App. 2008).

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Mother submitted a detailed billing statement showing she had incurred

$12,635.64 in attorney fees prior to May 1, 2013. [36] Because we reverse for a determination of Father’s weekly gross income and

weekly child support obligation based upon the evidence, the trial court should

consider on remand whether Mother should be awarded attorney fees of $300

per month for twelve months or a lesser amount in light of the relative earning

abilities of the parties and other factors that bear on the reasonableness of an

award.

Conclusion [37] For the foregoing reasons, we reverse and remand for a determination of

Father’s weekly gross income and weekly child support obligation based upon

the evidence and for consideration of Mother’s request for attorney fees

consistent with this opinion. [38] Reversed and remanded.

Kirsch, J., and Mathias, J., concur.

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