MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                           Mar 20 2019, 7:21 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.


APPELLANT PRO SE
Wendy Mabry
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Wendy Mabry,                                             March 20, 2019
Appellant,                                               Court of Appeals Case No.
                                                         18A-JP-711
        v.                                               Appeal from the Marion Circuit
                                                         Court
Anthony Jones,                                           The Honorable Marie Kern,
Appellee.                                                Magistrate
                                                         Trial Court Cause No.
                                                         49C01-0404-JP-1141



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JP-711 | March 20, 2019                    Page 1 of 10
[1]   Wendy Mabry (“Mother”), pro se, appeals the trial court’s order denying her

      motion to modify the child support obligation of Anthony Jones (“Father”).

      Mother raises thirteen issues which we consolidate and restate as whether the

      court’s findings are clearly erroneous. We affirm in part, reverse in part, and

      remand.


                                         Facts and Procedural History

[2]   Mother and Father have one child together. On October 19, 2006, the court

      entered a judgment of paternity and support providing that Mother and Father

      have joint legal custody, that Mother have primary physical custody and Father

      have parenting time, that Father pay child support of $69 per week, and that

      both parties provide medical insurance for the child. A child support obligation

      worksheet (“CSOW”) dated October 19, 2006, showed Father’s weekly gross

      income as $440, Mother’s weekly gross income as $320, a prior born child or

      children credit of $95 for Mother, a parenting time credit of $6 for Father, and a

      recommended support obligation by Father of $69. An entry in the

      chronological case summary (“CCS”) dated March 18, 2013, states the parties

      have no ability to communicate with each other and awarded legal custody to

      Mother. 1 On April 30, 2014, the court entered a minute entry stating that

      Mother had requested a modification of child support, that a twenty percent

      change would have required an order of $83, that the calculation showed $80,




      1
        In her appellant’s brief, Mother states that Father was first ordered to obtain health insurance for the child
      in the order dated March 18, 2013.

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-711 | March 20, 2019                        Page 2 of 10
      and that Mother’s request was denied. The court’s worksheet showed Father’s

      weekly gross income as $610, Mother’s weekly gross income as $290, a

      subsequent child credit of $18.85 for Mother, a prior born child or children

      credit of $43 for Mother, a health insurance premium credit of $34.66 for

      Father, a parenting time credit of $7.19 for Father, and a recommended support

      obligation by Father of $80.


[3]   An entry in the CCS dated January 26, 2016, states that Mother filed a motion

      to modify. On February 15, 2017, the court held a modification hearing. On

      March 8, 2017, the court entered an Order on Modification of Child Support

      which provided:

              1. Father’s current order for child support is $69 per week.

              2. Mother is currently unemployed. She has a prior born child who
              is in college and is 18 years old; Mother is financially responsible
              for that child. Mother argues she should be given a credit for the
              legal duty associated with that child of $75 per week, but has
              provided no evidentiary basis for that number. Mother has a
              subsequent born child who lives with her.

                                                    *****

              4. Father . . . is paid $16.55 per hour and averages 40 hours per
              week, for a weekly gross income of $662. Father receives some
              overtime opportunities; for 2016, he earned $2,255.47 in overtime
              pay.

              5. Father maintains private health insurance on behalf of the minor
              child, but is not certain of the cost for the child’s portion of that
              premium. The Court has reviewed prior calculations on support
              and notes that Father was previously given credit for $34.66 as the
              cost for the child’s portion of the health insurance premiums. Based
              upon the Court’s review of Father’s current withholdings, the Court
      Court of Appeals of Indiana | Memorandum Decision 18A-JP-711 | March 20, 2019   Page 3 of 10
        believes this is an appropriate amount to credit Father for payment
        of that health insurance premium.

                                              *****

        7. In addition to providing child support, Father provides in-kind
        benefits by buying clothes and shoes for the child, providing for
        haircuts and paying expenses associated with extra-curricular
        activities.

        8. The Court is not including Father’s overtime income in the
        determination of weekly gross income; over the course of 52 weeks,
        this overtime pay results in an average of $43 per pay period. Given
        the additional in-kind benefits Father provides, the Court believes it
        is in the child’s best interests not to include that nominal amount in
        Father’s weekly gross income determination, in order to continue to
        allow Father to have the ability to provide those benefits on the
        child’s behalf.

                                              *****

        12. The Court has prepared a CSOW, utilizing the figures as stated
        above. The recommended support obligation is $82 per week.

        13. There must be at least a 20% difference between that child
        support obligation which Father is currently ordered to pay and that
        which is recommended by the CSOW. In order for that 20%
        threshold to be reached, the recommended obligation must be at
        least $83. Therefore, the Court cannot find that there is at least a
        20% deviation between the current order and the recommended
        obligation under the Court’s CSOW.

        14. Mother’s Petition to Modify Child Support is DENIED.


Appellant’s Appendix Volume 2 at 23-24. The court’s CSOW shows Father’s

weekly gross income as $662, Mother’s weekly gross income as $290, a

subsequent child credit of $18.85 for Mother, a prior born child or children

credit of $43 for Mother, a basic child support obligation of $139, a health

Court of Appeals of Indiana | Memorandum Decision 18A-JP-711 | March 20, 2019   Page 4 of 10
      insurance premium credit of $34.66 for Father, a parenting time credit of $12.27

      for Father, and a recommended support obligation by Father of $82. Mother

      filed a motion to correct error. Mother appealed and later filed a motion to

      remand which this court granted. After a hearing, the trial court denied

      Mother’s motion to correct error.


                                                   Discussion

[4]   Mother, pro se, maintains the trial court should have increased Father’s child

      support obligation. A modification order will be set aside if clearly erroneous.

      Bogner v. Bogner, 29 N.E.3d 733, 738 (Ind. 2015). Findings are clearly erroneous

      when the record contains no facts to support them. Quillen v. Quillen, 671

      N.E.2d 98, 102 (Ind. 1996). We first consider whether the evidence supports

      the factual findings, and then we consider whether the findings support the

      judgment. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000),

      reh’g denied. We review a denial of a motion to correct error for abuse of

      discretion. Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind.

      2008), reh’g denied. Pro se litigants are held to the same standard as trained

      counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.


[5]   Ind. Code § 31-16-8-1 provides:

              (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, and subject to
              subsection (d), modification may be made only:



      Court of Appeals of Indiana | Memorandum Decision 18A-JP-711 | March 20, 2019   Page 5 of 10
                       (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.


[6]   Mother makes a number of claims in her fifty-page appellant’s brief. To the

      extent she does not develop cogent argument or cite to the record, her claims

      are waived. See Ind. Appellate Rule 46(A)(8)(a) (argument must be supported

      by cogent reasoning and citations to authorities and the record); Loomis v.

      Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (argument waived for

      failure to provide cogent argument), reh’g denied, trans. denied. We will address

      Mother’s arguments regarding Father’s payment of health insurance premiums

      and the determination of Father’s weekly gross income.


[7]   Father has not filed an appellee’s brief. Thus, we need not undertake the

      burden of developing arguments for him. See Graziani v. D & R Const., 39

      N.E.3d 688, 690 (Ind. Ct. App. 2015). We apply a less stringent standard of

      review and may reverse if Mother establishes prima facie error. See id. Prima

      facie is defined as “at first sight, on first appearance, or on the face of it.” Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-JP-711 | March 20, 2019   Page 6 of 10
[8]   With respect to Father’s payment of premiums to provide health insurance

      coverage for the child, Mother claims that she is able to provide insurance

      through Medicaid at no cost. Ind. Child Support Guideline 7 provides that the

      court shall order one or both parents to provide health insurance when

      accessible to the child at a reasonable cost and, with respect to accessibility,

      states “[t]he court may consider other relevant factors such as provider network,

      comprehensiveness of covered services and likely continuation of coverage.”

      The Commentary provides in part: “Health insurance coverage should

      normally be provided by the parent who can obtain the most comprehensive

      coverage at the least cost. A parent bears the burden of demonstrating to the

      court the cost of health insurance for the child(ren). A parent shall provide the

      court with proof of existing public or private health insurance for the child

      through an employer [or] Medicaid . . . .” Support Guideline 3, E.2. provides

      that “[t]he weekly cost of health insurance premiums for the child(ren) should

      be added to the basic obligation whenever either parent actually incurs the

      premium expense or a portion of such expense.” Father testified that he and

      the child were covered by his health and dental insurance, the earnings

      statements admitted into evidence show that deductions were made from

      Father’s salary for medical and dental insurance premiums, and Father’s

      December 2016 earnings statement shows deductions for a medical insurance

      premium of $75.50 and for a dental insurance premium of $10. Mother does

      not point to the record to show that coverage of the child through Medicaid was

      preferred under the Support Guidelines. We do not disturb the credit in the

      court’s CSOW to adjust the recommended support obligation to account for
      Court of Appeals of Indiana | Memorandum Decision 18A-JP-711 | March 20, 2019   Page 7 of 10
      Father’s payment of premiums to provide health insurance coverage for the

      child.


[9]   As for the determination of Father’s weekly gross income, Mother argues that

      Father’s earnings were $46,869.99 in 2014, $38,583.76 in 2015, and $36,868 in

      2016. She maintains that Father’s purchases for their child do not constitute in-

      kind expenses under Ind. Child Support Guideline 3, A.2. and that the types of

      purchases referenced by the court constitute controlled expenses or other

      extraordinary expenses. Ind. Child Support Guideline 3, A.1. defines “weekly

      gross income” 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” which “includes, but is not limited to,

      income from salaries, wages, . . . bonuses, [and] overtime . . . .” Support

      Guideline 3, A.2. states: “Expense 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. Such payments might include a company car,

      free housing, or reimbursed meals.” The Commentary to Guideline 3A,

      comment b., provides “[t]here are numerous forms of income that are irregular

      or nonguaranteed” “[o]vertime, . . . bonuses, . . . voluntary extra work and

      extra hours worked . . . are all illustrations . . . of such items,” and “[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.” Further,

      Support Guideline 6 provides that a credit should be awarded for the overnights


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-711 | March 20, 2019   Page 8 of 10
       a child spends with the noncustodial parent. The Commentary provides that

       controlled expenses are typically paid by the custodial parent and are not

       transferred or duplicated; such expenses include clothing, school supplies, and

       personal care; and the cost of elective school activities are optional activities

       covered by other extraordinary expenses.


[10]   The trial court declined to include any of Father’s overtime income in his gross

       income and referenced other purchases which Father made for the child.

       Father testified that he made purchases for the child including soccer outfits,

       school clothes, shoes, and haircuts. However, he presented only one receipt

       dated September 6, 2016, for $104.64 from Dick’s Sporting Goods. He did not

       present proof regarding any regularity of payment for such items or the average

       amounts he paid for these or similar items or establish that the payments were

       attributable to expenses or controlled expenses which Mother was required to

       pay or assumed to have paid. Father is not entitled to a regular credit or

       reduction of his gross income for these purchases. Moreover, there has not

       been an increase in Father’s support obligation since 2006 when his income was

       $440 per week. The record reveals that Father’s income exceeded his hourly

       rate for forty hours per week in the years 2014, 2015, and 2016. Father’s

       earnings statement of December 29, 2016, shows that he had a regular pay rate

       of $16.5561 and year-to-date gross pay of $36,868; his December 30, 2015

       earnings statement shows that he had a regular pay rate of $16.05 and year-to-

       date gross pay of $38,583.76; and his December 31, 2014 earnings statement

       shows that he had a regular pay rate of $15.55 and year-to-date gross pay of


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-711 | March 20, 2019   Page 9 of 10
       $46,869.99. 2 The statements reflect income well in excess of Father’s hourly

       rate for forty hours per week, and the entirety of this income should not be

       excluded from Father’s gross income.


[11]   We conclude that Mother has established prima facie error regarding the

       determination of Father’s weekly gross income. We remand with instructions

       to determine Father’s dependable weekly gross income consistent with this

       decision without holding another hearing and to enter an appropriate amended

       child support modification order which makes Father’s modified support

       obligation effective as of the February 2017 modification hearing and

       determines Father’s arrearage and the amount he must pay weekly toward the

       arrearage.


[12]   Affirmed in part, reversed in part, and remanded.


       Bailey, J., and Bradford, J., concur.




       2
        The statements show earnings divided into line items labeled “Regular,” “Holiday,” “O/T Halftime,” “Shft
       Prem,” and “Vacation,” and they show a “Ctrct Sgn Bon” of $2,000 in 2016 and of $1,500 in 2014.

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-711 | March 20, 2019               Page 10 of 10
