      MEMORANDUM DECISION
                                                                                        FILED
      Pursuant to Ind. Appellate Rule 65(D),
                                                                                   08/31/2017, 9:33 am
      this Memorandum Decision shall not be
                                                                                        CLERK
      regarded as precedent or cited before any                                     Indiana Supreme Court
                                                                                       Court of Appeals
      court except for the purpose of establishing                                       and Tax Court

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Richard A. Mann                                          Eric Sommers
      Lisa M. Joachim                                          Indianapolis, Indiana
      Mann Law, P.C.
      Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Robert Paul Harris, III,                                 August 31, 2017
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               32A01-1702-DR-302
               v.                                              Appeal from the Hendricks
                                                               Superior Court
      Melanie Harris,
                                                               The Honorable Mark A. Smith,
      Appellee-Respondent.                                     Judge
                                                               Trial Court Cause No.
                                                               32D04-0710-DR-118



      Barnes, Judge.


                                             Case Summary
[1]   Robert Paul Harris, III, (“Father”) appeals the trial court’s denial of his request

      for modification of a child support order. We reverse and remand.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1702-DR-302 | August 31, 2017           Page 1 of 11
                                                     Issue
[2]   Father raises one issue, which we restate as whether the trial court properly

      imputed income to him and denied his request for modification of child

      support.


                                                     Facts
[3]   Father and Melanie Harris (“Mother”) were married in 2000 and had three

      children. When they divorced in 2009, Father was ordered to pay $362.00 per

      week in child support. At that time, Father was working as an airline pilot.


[4]   On October 2, 2016, Father was arrested for operating a vehicle while

      intoxicated, and he was fired from his job. Father learned that, to resume flying

      as an airline pilot, he would have to pass a medical evaluation, see a

      psychiatrist, and provide the FAA with his police reports and court records.

      Father found temporary employment at a Wal-Mart warehouse making $361.00

      a week, and he began working on December 9, 2016.


[5]   On December 21, 2016, Father filed a petition to modify his child support

      obligation as a result of his lower income. On January 4, 2017, Father pled

      guilty to Class A misdemeanor operating a vehicle while intoxicated, and he

      was sentenced to 361 days of probation. The trial court held an evidentiary

      hearing on the child support modification petition on January 13, 2017. The

      trial court entered findings of fact and conclusions thereon as follows:




      Court of Appeals of Indiana | Memorandum Decision 32A01-1702-DR-302 | August 31, 2017   Page 2 of 11
        6.      The evidence established that [Father] was earning weekly
                gross income of $1,712.00, or approximately $89,000/yr at
                the time of the Decree.


        7.      [Father] is now earning $361.00 per week as a result of
                losing his job. The evidence established that [Father] was
                employed full time as a pilot with Republic Airways but
                was terminated on October 2, 2016 by his employer as a
                result of an operating while intoxicated charge. [Father]
                subsequently pled guilty on January 4, 2017 under case
                number 32D02-1610-CM-1510.


        8.      [Mother] was earning $460.00 per week at the time of the
                Decree, or approximately $23,920/yr. Currently, [Mother]
                works full-time and earns approximately $38,000/yr or
                $73l/week.


        9.      [Mother] provides health insurance for the minor children
                at a weekly cost of $22.00. This is another substantial
                change since the Decree in that [Father] was previously
                providing health insurance.


        10.     The evidence established that [Father] does not spend
                more than 76 overnights per year with the minor children.


        11.     Based upon the foregoing, the Court finds and orders:


                     a. [Father’s] request to modify his support based upon
                        a weekly gross income of $361.00 is denied.
                        [Father’s] reduction in income was as a result of a
                        personal choice on his part to drink and drive.
                        [Father] failed to demonstrate what reductions in
                        personal expenses he has undertaken. Specifically,
                        the evidence established that he continues to pay a

Court of Appeals of Indiana | Memorandum Decision 32A01-1702-DR-302 | August 31, 2017   Page 3 of 11
                         monthly mortgage of $1,300.00 despite a reduction
                         in income. Moreover, [Father] testified that it
                         remains possible for him to work as a pilot again in
                         the future after he completes several requirements
                         which he has not fulfilled at this time;


                     b. While [Father’s] support should not be reduced
                        based upon his personal choice to drink and drive,
                        there have been other circumstances that have
                        changed and that the Court considered for purposes
                        of a modification. For example, [Mother’s] income
                        has increased; she has been paying the cost of health
                        insurance; and, [Father’s] overnight parenting time
                        credit has decreased. Considering these changed
                        circumstances, the new recommended weekly child
                        support obligation is $343.00 per week. (Exhibit A).
                        However, this is a change of only $19.00 per week
                        and less than the 20% reduction threshold set forth
                        in Ind. Code 31-16-8-1(b)(2);


                     c. Even calculating support based upon an increase in
                        [Father’s] annual income to $100,000.00, taking
                        into account all the other changes, the
                        recommended support obligation only changes to
                        $366.00 (Exhibit B), an increase of $4.00 per week
                        which is also less than 20%;


                     d. Based upon the foregoing, the Court finds that the
                        current support order is not an unreasonable order.
                        [Father’s] request to modify child support is
                        denied[.]


Appellant’s App. Vol. II pp. 33-34. Father now appeals.




Court of Appeals of Indiana | Memorandum Decision 32A01-1702-DR-302 | August 31, 2017   Page 4 of 11
                                                  Analysis
[6]   Father challenges the trial court’s denial of his motion for a modification of

      child support. The trial court entered findings of fact and conclusions thereon

      sua sponte. Sua sponte findings only control issues that they cover, while a

      general judgment standard applies to issues upon which there are no findings.

      In re Paternity of Pickett, 44 N.E.3d 756, 762 (Ind. Ct. App. 2015). We may

      affirm a general judgment with findings on any legal theory supported by the

      evidence. Id. As for any findings that have been made, they will be set aside

      only if they are clearly erroneous. Id. A finding is clearly erroneous if there are

      no facts in the record to support it, either directly or by inference. Id.


[7]   Under Indiana Code Section 31-16-8-1, a child support order may be modified

      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 32A01-1702-DR-302 | August 31, 2017   Page 5 of 11
[8]   The trial court here found no showing of changed circumstances so substantial

      and continuing as to make the terms unreasonable or a showing of a twenty-

      percent difference. Father argues that the trial court erred in calculating his

      weekly gross income because the trial court imputed income to him rather than

      using his actual income. The Indiana Child Support Guidelines provide:


              If a court finds a parent is voluntarily unemployed or
              underemployed without just cause, child support shall be
              calculated based on a determination of potential income. A
              determination of potential income shall be made by determining
              employment potential and probable earnings level based on the
              obligor’s work history, occupational qualifications, prevailing job
              opportunities, and earnings levels in the community.


      Ind. Child Support Guideline 3(A)(3). A trial court has wide discretion to

      impute income to ensure the child support obligor does not evade his or her

      support obligation. Pickett, 44 N.E.3d at 766.


[9]   Father argues that the trial court’s imputation of income to him is clearly

      erroneous based on Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007), and In re

      Paternity of E.C., 896 N.E.2d 923 (Ind. Ct. App. 2008). In Lambert, our supreme

      court held that “incarceration does not relieve parents of their child support

      obligations.” Lambert, 861 N.E.2d at 1177. “On the other hand, in determining

      support orders, courts should not impute potential income to an imprisoned

      parent based on pre-incarceration wages or other employment-related income,

      but should rather calculate support based on the actual income and assets

      available to the parent.” Id.; see also Clark v. Clark, 902 N.E.2d 813 (Ind. 2009)


      Court of Appeals of Indiana | Memorandum Decision 32A01-1702-DR-302 | August 31, 2017   Page 6 of 11
       (holding that incarceration can be a substantial change in circumstances that

       would warrant a modification of child support). Similarly, in E.C., the trial

       court imputed income to an incarcerated parent, and we reversed for the trial

       court to determine whether the parent had other income or assets available to

       satisfy his child support obligation during his incarceration. E.C., 896 N.E.2d at

       927. However, we find these cases inapplicable because they involve

       incarcerated parents, and Father here is not incarcerated.


[10]   Father also relies on Miller v. Sugden, 849 N.E.2d 758 (Ind. Ct. App. 2006),

       trans. denied. There, the father lost his employment as a chemist for Eli Lilly for

       the unauthorized removal of “chemistry material” from the lab. Miller, 849

       N.E.2d at 759. The father filed a petition to modify his child support, and the

       trial court imputed the gross weekly income that the father had earned at Eli

       Lilly. On appeal, we distinguished the case from Carmichael v. Siegel, 754

       N.E.2d 619, 633 (Ind. Ct. App. 2001), where we held:


               if a parent’s intentional misconduct directly results in a reduction
               of his or her income, no corresponding decrease in his or her
               child support obligation should follow, because such misconduct
               results in ‘voluntary underemployment’ according to the Child
               Support Guideline 3(A)(3), and the income the parent was
               earning before that misconduct should be imputed to that parent.


       Miller, 849 N.E.2d at 761. We noted that “Carmichael involved a parent who

       petitioned for a modification of child support after his license to practice law

       was suspended because he intentionally deceived a bankruptcy court.” Id. We

       concluded that Carmichael was distinguishable because there was “no indication

       Court of Appeals of Indiana | Memorandum Decision 32A01-1702-DR-302 | August 31, 2017   Page 7 of 11
       that criminal charges were ever filed against Father with regard to the

       disappearance of chemicals from his lab.” Id. Although the evidence supported

       “the trial court’s finding that Father’s termination from Lilly was the result of

       his own misconduct,” we could not conclude that the father’s conduct

       amounted to the level of “intentional deceit present in Carmichael.” Id.

       Although we concluded that the father’s income should not be imputed to his

       prior income from Eli Lilly, we did conclude that he was capable of working as

       a chemist, although at a lesser salary. Consequently, we imputed income to

       him in the amount of $900 per week.


[11]   This case is more like Miller than Carmichael. Father’s misconduct, while

       disturbing and criminal, do not seem to rise to the level of “intentional deceit

       present in Carmichael.” Id. It is undisputed that Father has lost his job as an

       airline pilot and, although he still has the chance of regaining similar

       employment if he complies with the FAA requirements, it is unclear when or if

       an increase in his income will occur. Under these circumstances, we conclude

       that the trial court’s imputation of income to Father is clearly erroneous.


                                                 Conclusion
[12]   The trial court’s denial of Father’s petition to modify child support is clearly

       erroneous. We reverse and remand for a recalculation of child support.


[13]   Reversed and remanded.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1702-DR-302 | August 31, 2017   Page 8 of 11
Baker, J., concurs.


Crone, J., concurs in result with separate opinion.




Court of Appeals of Indiana | Memorandum Decision 32A01-1702-DR-302 | August 31, 2017   Page 9 of 11
                                                     IN THE
            COURT OF APPEALS OF INDIANA

       Robert Paul Harris, III,                                      Court of Appeals Case No.
                                                                     32A01-1702-DR-302
       Appellant-Petitioner,

                 v.

       Melanie Harris,
       Appellee-Respondent




       Crone, Judge, concurring in result.


[14]   I agree with the majority’s decision to reverse the denial of Father’s petition to

       modify child support, but I would do so on different grounds. I believe that the

       facts of this case are more analogous to those involving incarcerated parents, in

       that Father lost his pilot’s job as a result of an act for which he was criminally

       charged and convicted. There is no evidence that he committed the act to

       evade his support obligation or that he could earn his previous income of

       $89,000 per year until he fulfills the aforementioned FAA requirements. 1

       Although Father is not incarcerated, based on our supreme court’s reasoning in

       Lambert, I believe that the trial court should not impute potential income based




       1
         There is no evidence that Father has dragged his feet in fulfilling those requirements or that he could have
       fulfilled them by the time of the hearing on his petition.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1702-DR-302 | August 31, 2017             Page 10 of 11
on his previous income “but should rather calculate support based on [his]

actual income and assets[.]” 861 N.E.2d at 1177.




Court of Appeals of Indiana | Memorandum Decision 32A01-1702-DR-302 | August 31, 2017   Page 11 of 11
