Jessica Kulibert v. Timothy J. Kulibert (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jan 19 2021, 8:50 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Shana D. Paula Philip C. Sheward Danica L. Eyler Silvia B. Miller Jacob C. Salathe Allen Wellman McNew Harvey, LLP Webster and Garino, LLC Greenfield, Indiana Westfield, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jessica Kulibert, January 19, 2021 Appellant/Petitioner, Court of Appeals Case No. 20A-DR-1465 Appeal from the Hancock Circuit v. Court The Hon. R. Scott Sirk, Judge Timothy Kulibert, The Hon. Cody Coombs, Commissioner Appellee/Respondent. Trial Court Cause No. 30C01-1609-DR-1465

Bradford, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 20A-DR-1465 | January 19, 2021 Page 1 of 9

Case Summary [1] Jessica and Timothy Kulibert (“Mother” and “Father”) were married in 2007

and had two children while married (“the Children”). In 2016, Mother

petitioned for dissolution of her marriage to Father, and the trial court issued its

dissolution decree in November of 2018. In its dissolution decree, the trial

court, inter alia, awarded Father primary physical custody of the Children and

ordered Mother to pay $244.00 per week in child support to be reduced later to

$161.00 per week. The reduction was due to a credit Mother was to receive for

overnight visitation with the Children when it resumed. While the credit was

eventually applied, the overnight visitation never actually occurred.

Meanwhile, Mother was not granted a credit against her child-support

obligation for social security disability (“SSD”) benefits received by Father on

behalf of the Children by virtue of his being the custodial parent. [2] In January of 2020, Mother petitioned for a modification of child support to

reflect the SSD credit she had not been receiving and to have it applied

retroactively to the date of the dissolution decree. While Father agreed that

Mother was entitled to receive the SSD credit, he noted that Mother had been

receiving the overnights credit to which she was not entitled and argued that the

two errors effectively cancelled each other out in that correcting both would not

alter Mother’s child-support obligation more than the 20% required to change

her obligation. In July of 2020, the trial court agreed with Father and denied

Mother’s petition to modify child support. Mother argues that the trial court

abused its discretion in denying her petition to have her SSD credit applied

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retroactively against her child-support obligation. Because we disagree, we

affirm.

Facts and Procedural History [3] On September 30, 2016, Mother petitioned for the dissolution of her marriage

to Father, to whom she had been married since July of 2007 and with whom

she had the Children. On September 14, 2018, and October 19, 2018, the trial

court held the final hearing on the dissolution and other pending matters. On

November 26, 2018, the trial court issued its dissolution decree, in which it,

inter alia, (1) took notice of two pending children-in-need-of-services (“CHINS”)

cases involving the Children; (2) awarded primary physical custody to Father;

and (3) set Mother’s weekly child-support payment at $244.00 per week, to be

lowered again to $161.00 per week upon resolution of the CHINS cases. The

lowering of Mother’s obligation was on the basis that overnight visits would

resume when the CHINS cases were resolved, allowing her to receive a weekly

credit of $82.78. Although the credit was eventually applied, overnight

visitation did not resume. [4] On January 23, 2020, Mother moved for modification of child support,

requesting a retroactive modification of support to take into consideration that

Father had been receiving SSD benefits on behalf of the Children but that those

benefits had not been included in the trial court’s calculation of child support on

November 26, 2018. On June 5, 2020, the trial court held a hearing on

Mother’s motion to modify child support. During the June 5, 2020, hearing,

Mother orally withdrew her motion to modify, stating “we don’t think there’s

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been a 20% uh difference making a substantial change in circumstances[.]” Tr.

Vol. II p. 7. Mother nonetheless argued that the SSD benefits received by

Father should be retroactively applied to modify Mother’s child-support

obligation back to July of 2018. Father testified that while Mother had been

receiving credit for overnight visits pursuant to the dissolution decree, no such

visits had actually occurred. While Father conceded that Mother was entitled

to a credit for the SSD payments made to him, he argued that the error was

effectively cancelled out by her erroneous receipt of a credit for overnight visits

that had not actually occurred. [5] On July 9, 2020, the trial court denied Mother’s motion to modify child support

in an order that provides, in part, as follows:

8. The original child support obligation calculated by the Court in its Decree of Dissolution included an incorrect credit for Mother of one hundred four (104) overnights with the children even though Mother was not and has not been exercising any overnight parenting time with the children. If the court corrects the overnight credit error and equitably applies that correction retroactively back to the date of the Decree, Mother’s child support obligation would increase in an amount nearly equal to the amount of SSDI periodic payments received by Father on behalf of the children. A retroactive application of periodic SSDI payments received by Father and a retroactive correction of Mother’s child support obligation would leave Mother’s arrearage nearly identical to what it is now. 9. If the Court were to grant Mother’s motion to Modify Support, Mother’s child support obligation would increase to $333.51 per week and the $156.00 per week that Father receives in SSDI payments would then reduce Mother’s child support obligation to $177.23 per week—an amount less than 20% difference from Mother’s current child support obligation [of $161.00 per week].

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Appellee’s App. pp. 52–53.

Discussion and Decision I. Subject-Matter Jurisdiction and Waiver [6] Father contends that we do not have jurisdiction over Mother’s appeal because

she is actually appealing from the dissolution decree issued in November of

2018, rendering her appeal untimely. Indiana Appellate Rule 9(A)(1) provides,

in part, that “[a] party initiates an appeal by filing a Notice of Appeal with the

Clerk (as defined in Rule 2(D)) within thirty (30) days after the entry of a Final

Judgment is noted in the Chronological Case Summary.” We conclude,

however, that Father’s characterization of the record is not accurate. While it is

true that Mother takes issue with a ruling that appeared first in the dissolution

decree, she is actually appealing from the trial court’s denial of her motion to

modify child support, from which there is no question she timely appealed. [7] Father also contends that Mother has waived her arguments for appellate

review for failing to raise them in the trial court. It is generally true that an

issue raised for the first time on appeal is waived for review. See, e.g., Plank v.

Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013) (“And appellate review

presupposes that a litigant’s arguments have been raised and considered in the

trial court.”). Mother’s core argument, i.e., that she has improperly been denied

a credit against her child-support obligation by virtue of SSD payments made to

Father, was, at the very least, raised and litigated during the trial court’s

evaluation of her motion to modify child support, the denial of which she now

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appeals. Father has failed to establish either that we lack jurisdiction over

Mother’s appeal or that she has waived her arguments for appellate review.

II. Whether the Trial Court Abused its Discretion in Denying Mother’s Motion for Modification of Child Support [8] Where, as apparently happened here, the trial court sua sponte enters specific

findings of fact and conclusions, we review its findings and conclusions to

determine whether the evidence supports the findings, and whether the findings

support the judgment. Fowler v. Perry, 830 N.E.2d 97, 102 (Ind. Ct. App. 2005).

We will set aside the trial court’s findings and conclusions only if they are

clearly erroneous. Id. A judgment is clearly erroneous when a review of the

record leaves us with a firm conviction that a mistake was made. Id. We

neither reweigh the evidence nor assess the witnesses’ credibility, and consider

only the evidence most favorable to the judgment. Id. Moreover,

findings made sua sponte control only as to the issues they cover[,] and a general judgment will control as to the issues upon which there are no findings. A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence. Id. (citation omitted).

[9] Indiana Code section 31-16-8-1 provides, in part, as follows:

(a) Provisions of an order with respect to child support or an order for maintenance […] may be modified or revoked. (b) Except as provided in section 2 of this chapter, and subject to subsection (d), modification may be made only:

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(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. [10] Moreover,

[a] trial court’s calculation of child support is presumptively valid. Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008). We will reverse a trial court’s decision in child support matters only if it is clearly erroneous or contrary to law. Ind. Trial Rule 52(A); Young, 891 N.E.2d at 1047. A decision is clearly erroneous if it is clearly against the logic and effect of the facts and circumstances that were before the trial court. Young, 891 N.E.2d at 1047. When a trial court enters formal findings, we observe the following regimen: [C]ourts reviewing support orders contained in judgments entered under T.R. 52 are not at liberty simply to determine whether the facts and circumstances contained in the record support the judgment. Rather the evidence must support the specific findings made by the court which in turn must support the judgment.... [I]f the findings and conclusions entered by the court, even when construed most favorably toward the judgment, are clearly inconsistent with it, the decision must be set aside regardless of whether there was evidence adduced at trial which would have been sufficient to sustain the decision. Id. (quotation omitted).

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Ashworth v. Ehrgott, 934 N.E.2d 152, 157–58 (Ind. Ct. App. 2010). As we have

noted, the Indiana Supreme Court has “fully endorsed a flexible methodology

that allows a trial court to use its discretion when crediting a non-custodial

parent’s child support obligation.” Barrand v. Martin, 120 N.E.3d 565, 572 (Ind.

Ct. App. 2019) (citing Johnson v. Johnson, 999 N.E.2d 56, 62 (Ind. 2013)), trans.

denied. [11] Here, the trial court’s judgment was based on its findings that (1) Mother had

not been receiving credit for the $156.28 per week in SSD benefits received by

Father but that (2) Mother had been receiving credit for overnight visits that

had not actually occurred. The upshot of this is that, had Mother been given

credit for the SSD payments but denied credit for overnights, her weekly child-

support payment would have been $177.23 ($331.51-$156.28) instead of the

$161.00 she had been paying. There does not seem to be any dispute about any

of this: the parties agree that Mother is entitled to receive a credit for the SSD

payments to Father, and Mother does not even argue that she is—or ever was—

actually entitled to receive the overnight-visitation credit she has been receiving

from some point after November of 2018. [12] The question is whether the trial court’s resolution—concluding that two errors

essentially balanced out—amounts to an abuse of discretion. Mother first

argues that the trial court abused its discretion in sua sponte taking the

overnights credit into account. Father, however, specifically brought the

overnights credit to the trial court’s attention, putting the issue squarely before

the court. Mother also notes that she was not actually arguing for a

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modification of child support below, seeking only that the mandatory SSD

credit be retroactively applied to her previously-calculated obligation. However

Mother characterizes her argument in the trial court, she was seeking to have

her weekly child-support payments reduced and have that reduction

retroactively applied; in other words, a request to modify child support.

Finally, Mother argues that the trial court abused its discretion in concluding

that the two continuing errors more-or-less cancelled each other out. Mother,

however, cites no authority for this proposition, and our research has uncovered

none. [13] To get straight to the point, Mother is asking nothing more or less than for us to

correct the continuing error in Father’s favor while ignoring the continuing

error in her favor. We do not understand how that could be seen as anything

other than a windfall for her, not to mention a detriment to the Children. As

mentioned, the Indiana Supreme Court has emphasized that trial courts may

take a flexible approach to child-support issues, see Johnson, 999 N.E.2d at 62,

and it seems to us that the trial court effectively employed that flexibility here.

While we acknowledge the somewhat unusual circumstances of this case, we

conclude that the trial court’s disposition does not constitute an abuse of

discretion. [14] The judgment of the trial court is affirmed.

Kirsch, J., and May, J., concur.

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