G.B. v. R.B. (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 28 2018, 10:38 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR ATTORNEY FOR APPELLANT/CROSS-APPELLEE APPELLEE/CROSS-APPELLANT Hayleigh J. Neumann Richard D. Martin The Nice Law Firm, LLP Law Offices of Richard D. Martin Indianapolis, Indiana & Associates Frankfort, Indiana

IN THE COURT OF APPEALS OF INDIANA

G.B., February 28, 2018 Appellant/Cross-Appellee-Petitioner, Court of Appeals Case No. 12A02-1708-DR-1874 v. Appeal from the Clinton Superior Court R.B., The Honorable Justin H. Hunter, Judge Appellee/Cross-Appellant-Respondent, Trial Court Cause No. 12D01-9210-DR-266

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 12A02-1708-DR-1874 | February 28, 2018 Page 1 of 8 [1] G.B. (Father) and R.B. (Mother) have been divorced since 1992. Father has

remained in arrears on his child support obligation for much of the past two

decades. He argues that the trial court erred in calculating his current

arrearage. Finding no error, we affirm. Mother also cross-appeals, arguing that

the trial court seemingly limited her arrearage collection method to a final order

of garnishment through proceedings supplemental. We remand with

instructions to clarify Mother’s collections remedies as explained further herein.

Facts [2] Father and Mother were married and had two children, born in October 1986

and April 1990. The marriage was dissolved on December 4, 1992. The decree

of dissolution awarded physical custody of the children to Mother and ordered

Father to pay child support in the amount of $78 per week. [3] On July 28, 2003, the trial court approved an agreed entry filed by the parties.

The agreed entry provided that Father was in arrears on his child support

obligations in the amount of $21,932; increased Father’s child support

obligation to $120 per week; and ordered Father to pay an additional $50 per

week towards the arrearage. On August 22, 2007, the trial court approved

another agreed entry filed by the parties. This agreed entry stated that Father

had an arrearage of $32,694.88. [4] On November 28, 2007, the trial court approved a third agreed entry filed by

the parties. This agreed entry provided that Father was in arrears in the amount

of $33,865.62 and directed that an Income Withholding Order (IWO) be

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entered for the regular weekly child support obligation of $120 plus a weekly

$50 arrearage payment. That same day, Father filed a motion to modify his

child support obligation. On January 23, 2008, the trial court approved an

agreed entry that left the IWO in effect in the total amount of $170 per week,

but directed that $90 be applied to his regular child support obligation and $80

be applied to his arrearage. [5] On March 30, 2015, Father filed a pro se motion to terminate the IWO.

Mother objected (“Mother’s Objection”), stating that the remaining balance of

his arrearage, including interest, totaled $14,562.82. The trial court denied

Father’s motion. [6] On December 8, 2016, Father filed a second pro se motion to terminate the

IWO. Following a hearing,1 the trial court vacated the IWO and informed

Father that he could petition the court for an order to command Mother to

refund any overpayment he may have made. On January 18, 2017, Father filed

a pro se motion for reimbursement in the amount of $287.22 plus interest. [7] On March 3, 2017, Mother filed a motion to determine child support arrearage,

including an arrearage and interest calculator and Father’s payment history

from November 28, 2007, through March 1, 2017. Father subsequently

1 Mother did not appear at that hearing.

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retained counsel and, on June 20, 2017, Father filed an amended motion for

reimbursement in the amount of $14,980 plus attorney fees. [8] The trial court held a hearing on June 21, 2017. By agreement of the parties,

counsel presented evidence to the trial court in summary fashion. Father’s

attorney stipulated that his payment history provided by Mother was accurate.

Father objected to Mother’s request for statutory interest and to the admission

of her arrearage and interest calculator (“Exhibit One”) “due to a prior

inconsistent statement.” Tr. p. 10. Exhibit One shows that Father had an

arrearage on March 30, 2015, of $20,468.07, whereas Mother’s Objection had

showed an arrearage on that same date of $14,562.82. [9] On June 26, 2017, the trial court found that Father had an arrearage of

$7,872.99, including interest, and ordered that Father should pay $1,100 of

Mother’s attorney fees. The trial court’s order directed that Father “shall make

arrangements to pay the judgment within 30 days. The judgment may be

collected, if not paid by [Father], through the issuance of a Final Order of

Garnishment in Proceedings Supplemental.” Appealed Order p. 2. Father now

appeals and Mother now cross-appeals.

Discussion and Decision

I. Father’s Appeal [10] Father argues, in essence, that the trial court should not have admitted

Mother’s Exhibit One into evidence. The admissibility of evidence is within the

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trial court’s discretion, and we will reverse only upon a showing of error. In re

Paternity of T.M., 953 N.E.2d 96, 99 (Ind. Ct. App. 2011). [11] Initially, we note that Father does not contest the accuracy of the arrearage

amount calculated by Mother or found by the trial court. Instead, he argues

that Mother should be irrevocably bound to the arrearage amount contained in

Mother’s Objection, which did not include statutory interest and was, therefore,

too low. [12] First, he contends that Mother’s Objection should be treated as an affidavit. As

noted by Mother, however, the Objection is clearly a verified pleading and not

an affidavit, as it contains none of the language required by Indiana Trial Rule

11(B). Moreover, even if it were treated as an affidavit, there is no evidence

whatsoever that Mother falsified the calculation of her arrearage therein.

Instead, she inadvertently omitted statutory interest and later recalculated to

include such interest. In any event, whether or not Mother’s Objection should

be treated as an affidavit in no way affects the admissibility of Exhibit One. [13] Second, Father argues that the trial court should have considered Mother’s

Objection to be a “prior inconsistent statement.” Appellant’s Br. p. 10. He

does not explain, however, why this would render Exhibit One inadmissible.

Moreover, it is evident that the trial court did, in fact, consider the discrepancy

between the arrearage amount contained in Mother’s Objection and the

arrearage amount contained in Exhibit One. The trial court acknowledged that

there were “two inconsistent . . . sworn statements and . . . at some point I’ve

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got to decide what’s true.” Tr. Vol. II p. 7-8. The trial court then wondered

whether, if Mother’s original calculation had been too high, Father would have

objected to a later correction, and concluded that he would not have done so.

Id. at 19. In any event, as the trial court considered both the original Objection

and the subsequent Exhibit One and weighed them within its discretion, we

find no merit to this argument. [14] Finally, Father seems to argue that Mother should be estopped from including

the arrearage figure in Exhibit One because of the figure included in her original

Objection. He does not, however, actually cite to the doctrine or elements of

estoppel, nor would we find that the doctrine applies even if he had. [15] It is impossible to ignore the fact that Father does not argue that the arrearage

figure is inaccurate. He stipulated to the accuracy of his payment history and

does not contest the amount of interest owed on the arrearage. Therefore, he

cannot establish that he was harmed by the admission of Exhibit One, which

merely provides a correct calculation of the amount he owes. We decline to

reverse the trial court’s calculation of the amount of Father’s arrearage.

II. Cross-Appeal [16] Mother cross-appeals, arguing that the trial court erred by seemingly limiting

her collection of the child support arrearage to a final order in garnishment

through proceedings supplemental. We agree that the trial court’s order is

somewhat unclear.

Court of Appeals of Indiana | Memorandum Decision 12A02-1708-DR-1874 | February 28, 2018 Page 6 of 8 [17] An order directing a person to pay a child support arrearage may be enforced by

(1) a contempt finding; (2) an IWO; or (3) any other remedies available for the

enforcement of a court order. Ind. Code § 31-16-12-1. In other words, Mother

is not limited to a final order in garnishment through proceedings supplemental;

she has other options—including an IWO—available. [18] Consequently, we remand to the trial court with instructions to clarify that

Mother is not limited to collection of the arrearage through a final order in

garnishment; she is entitled to the issuance of an IWO if she so chooses. 2 She

is, however, limited to collection of the attorney fee award through a final order

in garnishment through proceedings supplemental. [19] Mother also argues that she is entitled to appellate attorney fees because

Father’s appeal is frivolous and made in bad faith. Ind. Appellate Rule 66(E).

We do not find his appeal to be frivolous or in bad faith and do not, ourselves,

award appellate attorney fees. The trial court, however, has discretion to

apportion attorney fees in child support matters, and may act within that

discretion should Mother petition the trial court for attorney fees incurred after

its order was issued.

2 Mother argues that the trial court should also be required to suspend Father’s driving privileges (though such an order may be stayed if an IWO and payment plan are put in place). A trial court is required to do so only “as a result of an intentional violation of an order for support,” and here, the trial court has made no such finding, nor does Mother argue that Father’s arrearage is an intentional violation. I.C. § 31-16-12-17. Consequently, we see no basis on the record before us to direct that Father’s driving privileges be suspended.

Court of Appeals of Indiana | Memorandum Decision 12A02-1708-DR-1874 | February 28, 2018 Page 7 of 8 [20] The judgment of the trial court is affirmed in part and remanded with

instructions to clarify Mother’s collection remedies as stated herein and for

further proceedings.

Riley, J., and Brown, J., concur.

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