In Re the Marriage of: Cheryl Smith v. Lawrence Robinson (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 26 2016, 9:28 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Joseph Leon Payne Joseph L. Payne, P.C. Austin, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Marriage of: October 26, 2016 Cheryl Smith, Court of Appeals Case No. Appellant-Petitioner, 72A01-1606-DR-1248 Appeal from the Scott Superior v. Court The Honorable Marsha Owens Lawrence Robinson, Howser, Judge Appellee-Respondent Trial Court Cause No. 72D01-1009-DR-144

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1248 | October 26, 2016 Page 1 of 4 [1] Cheryl Smith and Lawrence Robinson were married, but they divorced in 2011.

On December 17, 2015, Smith filed a petition to modify custody and support,

seeking physical custody of the parties’ son, Charles, and child support from

Robinson. After a February 26, 2016, modification hearing, the trial court

ordered that, as stipulated, Smith would have primary physical custody of

Charles and that Robinson would have an equal amount of parenting time as

Smith. At the hearing, the parties disputed several factors used to calculate

Robinson’s child support obligation—the trial court decided to credit

Robinson’s testimony and ordered him to pay $70 per week pursuant to his

child support obligation worksheet calculation. The trial court also ordered

Robinson to pay 22% of any overtime pay he might receive to Smith. Smith

now appeals. [2] Smith has three arguments on appeal: (1) the trial court erred by finding that

Charles would spend half of the overnights during the year with Robinson; (2)

there was no evidence underlying Robinson’s child support worksheet

calculations; and (3) the trial court erred by finding that a set of requests for

admissions, sent from Smith to Robinson, were adequately answered. [3] When reviewing a child support modification order, we review the evidence

most favorable to the judgment without reweighing the evidence or reassessing

the credibility of witnesses. In re Marriage of Kraft, 868 N.E.2d 1181, 1185 (Ind.

Ct. App. 2007). We will reverse only when the decision is clearly against the

logic and effect of the facts and circumstances before the court, including any

reasonable inferences therefrom. Id.

Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1248 | October 26, 2016 Page 2 of 4 [4] At the hearing, Robinson testified that, given past experiences, he expected

Charles to reside with him for half the year. Tr. p. 21. While Smith attempted

to persuade the trial court that Robinson earned $1021 per week, by multiplying

his pay rate by forty hours, Robinson presented evidence and testimony that he

averaged $854 in weekly income. Id. at 19. He explained that he cannot

always work forty hours in a week due to a medical condition. Id. [5] As is apparent, there was evidence in the record to support the trial court’s

order of $70 in weekly child support, which was premised on Charles spending

half the year with Robinson and on Robinson earning $854 in weekly income.

Smith’s argument to the contrary amounts to a request that we reweigh the

evidence—a request that we deny. [6] We turn to Smith’s third argument. On December 23, 2015, she served a set of

four requests for admission on Robinson, seeking admissions that Robinson

told Charles to stop going back and forth between Smith’s and Robinson’s

houses; that Robinson told Charles that he is not welcome to stay the night; that

Charles has recently been living with Smith; and that Robinson removed all of

Charles’s personal belongings from his house. [7] Robinson responded in early January in a detailed letter. Resp’t Ex. 1. In a

narrative of recent events, Robinson denied each of the requested admissions

and instead offered his side of the story. [8] Indiana Trial Rule 36 governs requests for admission; it requires the responding

party to “serve[] upon the party requesting the admission a written answer or

Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1248 | October 26, 2016 Page 3 of 4

objection addressed to the matter, signed by the party or by his attorney.” That

is precisely what Robinson’s letter did: it addressed each of the four requests for

admission and was signed by Robinson. The trial court did not err by finding

that Robinson had properly responded to Smith’s requests for admission. [9] The judgment of the trial court is affirmed.

Vaidik, C.J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1248 | October 26, 2016 Page 4 of 4