      MEMORANDUM DECISION
                                                                              Jun 30 2015, 8:49 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Chad D. Wuertz                                            Ryan H. Cassman
      Wuertz Law Office, LLC                                    Cathy M. Brownson
      Indianapolis, Indiana                                     Coots, Henke & Wheeler, P.C.
                                                                Carmel, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Paternity of                         June 30, 2015
      H.J.,                                                     Court of Appeals Case No.
                                                                49A02-1412-JP-825
      Melissa R. Jallow,
                                                                Appeal from the
      Appellant-Petitioner,                                     Marion Superior Court
                                                                The Honorable Michael D. Keele,
              v.                                                Judge
                                                                Cause No. 49D07-0712-JP-55541
      William R. Fat-Anthony,
      Appellee-Respondent.




      Kirsch, Judge.

[1]   Melissa R. Jallow (“Mother”) appeals the trial court’s order modifying the child

      support obligation of William R. Fat-Anthony (“Father”) in this paternity

      action. Mother raises several issues, which we consolidate and restate as:


      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015            Page 1 of 12
      whether the trial court abused its discretion in modifying Father’s child support

      obligation.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Mother and Father were never married, but share a child together, H.J.

      (“Child”), born on November 2, 2007. Father’s paternity was established on

      July 8, 2008, but no child support was ordered at that time. The case was re-

      docketed on February 8, 2011 in order to determine child support. On August

      24, 2011, the trial court established Father’s child support obligation to be

      $283.00 per week and an additional $67.00 per week toward the arrearage,

      which was determined to be $6,424.00.


[4]   At an August 9, 2013 hearing, the trial court found Father in contempt for

      failing to meet his child support obligation and ordered Father to pay Mother’s

      attorney fees as of that date. Father made a few support payments following

      this hearing, but still failed to meet his obligation. At a hearing held on

      December 6, 2013, the trial court again found Father to be in contempt,

      calculated a support arrearage, and issued a bench warrant for Father. On

      January 27, 2014, the trial court ordered Father to serve thirty days in the

      Marion County Jail or pay a purge bond of $5,000.00, which Father paid. The

      trial court had previously entered a judgment against Father in the amount of

      $8,785.89 for Mother’s attorney fees, and Mother’s counsel as judgment



      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015   Page 2 of 12
      creditor filed a motion for proceedings supplemental and levy for personal

      property.


[5]   On March 5, 2014, Father filed a motion for a change of judge and a petition

      for modification of child support. On March 10, 2014, Mother filed a motion

      for prepayment of her attorney fees. On March 24, 2014, a special judge was

      appointed for the case, and he ordered the parties to attend mediation, to which

      Mother objected; the order was rescinded. On May 2, 2014, Mother’s counsel

      filed a renewed motion for proceedings supplemental and levy for personal

      property, and on May 15, 2014, Mother filed a renewed motion for prepayment

      of attorney fees. The pending motions were set for hearing on June 26, 2014,

      but the hearing was rescheduled several times until it was finally set for

      September 5, 2014 for the determination of all issues except Father’s petition for

      modification of child support.


[6]   Because Father lives in Texas, on August 21, 2014, he filed a motion to appear

      telephonically for the September 5 hearing, or in the alternative, to have the

      modification of child support motion heard on the same date. The trial court

      denied Father’s request to appear telephonically, but granted Father’s motion to

      consolidate the child support matter with the other motions at the hearing.

      Mother filed a motion to reconsider this decision, but the trial court denied her

      motion.


[7]   At the September 5 hearing, the trial court informed the parties what issues

      were pending, including the Mother’s counsel’s motion for proceedings


      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015   Page 3 of 12
      supplemental, Mother’s request for prepayment of attorney fees, and Father’s

      petition to modify child support. The trial court asked Mother’s counsel if there

      was anything additional counsel wanted to state regarding Mother’s motions.

      Mother’s counsel declined and stated that Mother would rely on her motion,

      but then went on to discuss the pending proceedings supplemental issue.


[8]   During the hearing, Father testified that he was a pharmacist, who holds a

      doctorate of pharmacy degree and has worked at Health Plus Pharmacy in

      Mission, Texas since 2013, and that he earns $518.00 per week with no other

      sources of income. Father filed a financial declaration, paystubs, and a

      proposed child support obligation worksheet with the trial court. Father

      testified that he and his wife had previously owned a business known as Valley

      Scrubs and Medical Accessory, which was a part owner of Medical Mart and

      DME, which was doing business as Health Plus Pharmacy, Father’s current

      employer. However, Father stated that the business, Valley Scrubs and Medical

      Accessory no longer existed, which “killed [his] ownership in Medical Mart

      and DME.” Tr. at 45. He also testified that his wife works, he is in huge debt,

      and that he has additional children and support obligations. Father additionally

      stated that he and his wife discussed his prior failed business, and that by

      maintaining his current employment, he may “get something out of it” in the

      future. Id. at 63.


[9]   Mother testified that she was employed as a registered nurse, earning $700.00

      per week, and filed a financial declaration reflecting the same. Mother also

      testified that she was a full-time student, and her hours had recently been cut,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015   Page 4 of 12
       which both resulted in her earning less income than what she previously had

       averaged. Mother was going back to school to become an advanced nurse

       practitioner and hoped to improve her income after she graduated in December

       2014 She stated she had voluntarily decided to go back to school to better her

       financial circumstances.


[10]   The trial court issued an order granting Father’s petition to modify child

       support and calculating Father’s arrearage and the payments received. The trial

       court modified Father’s support obligation to $66.00 per week and found his

       remaining arrearage to be $1,880.46. The trial court did not impute any income

       to either party and, while identifying Father’s income as far lower than would

       be expected given his profession, the court found his current earnings as

       indicated on his financial declaration and tax return to be credible. The trial

       court noted that Father testified about his hopes that his current employment

       will pay off in the future and that Mother also chose to decrease her income in

       order to attend school and hopefully earn more in the future. It also discussed

       that both parties were earning less than they were at the time of the original

       support order. The trial court did not award Mother attorney fees.


[11]   Mother filed a motion to correct error on October 14, 2014. In her motion, she

       argued that the trial court erred when it failed to rule on her motion for

       prepayment of attorney fees and when it scheduled Father’s petition to modify

       child support at the same hearing as her request for prepayment of attorney

       fees. The trial court denied the motion to correct error. Mother now appeals.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015   Page 5 of 12
                                      Discussion and Decision
[12]   A trial court’s decision on a motion to correct error comes to us cloaked with a

       presumption of correctness, and the appellant has the burden of showing an

       abuse of discretion. Faulkinbury v. Broshears, 28 N.E.3d 1115, 1122 (Ind. Ct.

       App. 2015) (citing Cox v. Matthews, 901 N.E.2d 14, 21 (Ind. Ct. App. 2009),

       trans. dismissed). An abuse of discretion will be found when the trial court’s

       action is against the logic and effect of the facts and circumstances before it and

       the inferences that may be drawn therefrom. Id.


[13]   Initially, Mother argues that the trial court abused its discretion when it

       continued the hearing on her motion for prepayment of attorney fees and

       consolidated the hearing on her motion with the hearing on Father’s motion to

       modify child support. Mother contends that this was an abuse of discretion

       because the trial court’s actions were in violation of certain local rules for

       Marion County civil courts. She claims that, under the local rules, she should

       have been allowed fifteen days to respond to Father’s motion to consolidate the

       hearings, and because she was not given that opportunity to respond, the trial

       court violated its local rules.


[14]   Mother raises this argument regarding the violation of local rules for the first

       time on appeal. After the trial court issued its order consolidating Father’s

       motion for hearing at the same hearing as Mother’s pending motions, Mother

       filed a motion to reconsider. However, she did not cite to the local rule or raise

       its applicability in her motion. Additionally, on the day of the hearing, when


       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015   Page 6 of 12
       given an opportunity argue her motion, she did not raise the local rule’s

       applicability. Further, Mother filed a motion to correct error after the trial

       court’s ruling and, again, did not raise the local rule in her argument. We,

       therefore, find that Mother’s argument is waived because she failed to raise it at

       trial and only raises it for the first time before this court. See Stainbrook v. Low,

       842 N.E.2d 386, 396 (Ind. Ct. App. 2006) (concluding that when an appellant

       raises an issue for the first time on appeal, the issue is waived for purposes of

       appellate review), trans. denied.


[15]   Mother also asserts that the trial court abused its discretion when it failed to

       rule or to schedule a meaningful hearing on her motion for prepayment of

       attorney fees. Although Mother contends that the trial court did not conduct a

       meaningful hearing on her motion, the record shows that her motion was to be

       heard at the September 5, 2014 hearing along with Mother’s motion for

       proceedings supplemental and Father’s petition to modify child support. At the

       start of the hearing on September 5, the trial court inquired of Mother’s attorney

       as to whether Mother had any argument to add to her motions. Tr. at 5.

       Mother’s counsel declined and indicated that Mother would rely on her filed

       motions and then commenced to discuss the proceedings supplemental issues.

       Id. at 5-7. Therefore, during the September 5, hearing, Mother had an

       opportunity to argue her motion, but failed to do so.


[16]   Mother also argues that the trial court abused its discretion in not ruling on her

       motion for prepayment of attorney fees. Although our review of the record

       does not reveal that the trial court ever issued an order denying Mother’s

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015   Page 7 of 12
       motion, we find the issue moot as the case has now concluded. See Dempsey v.

       Dep’t of Metro. Dev. of City of Indianapolis, 953 N.E.2d 1132, 1136 (Ind. Ct. App.

       2011) (“[W]e have determined that an issue is moot when the principal

       questions in issue have ceased to be matters of real controversy between the

       parties.”). Further, we do not find Mother was prejudiced by not being allowed

       to conduct discovery as she asserts, because the failure to rule on her motion

       did not stop her from conducting discovery. She could have still sought

       discovery from Father and later request that Father be responsible for her

       accrued attorney fees. We do not find any abuse of discretion by the trial court.


[17]   Mother appeals the modification of Father’s child support obligation following

       the denial of a motion to correct error. We review the denial of a motion to

       correct error for an abuse of discretion. Faulkinbury, 28 N.E.3d at 1122. In

       reviewing the trial court’s decision regarding the modification of child support,

       we reverse only for an abuse of discretion. Holtzleiter v. Holtzleiter, 944 N.E.2d

       502, 505 (Ind. Ct. App. 2011). An abuse of discretion occurs when the decision

       is clearly against the logic and effect of the facts and circumstances before the

       court, including any reasonable inferences therefrom. Id.


[18]   Indiana Code section 31-16-8-1 provides in pertinent part that child support

       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:



       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015   Page 8 of 12
                        (A) a party has been ordered to pay an amount in child support
                        that differs by more than twenty percent 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 months before the petition requesting modification
                        was filed.
       Ind. Code § 31-16-8-1(b). Appellate courts give considerable deference to the

       findings of the trial court in family law matters, including findings of “changed

       circumstances” within the meaning of Indiana Code section 31-16-8-1.

       MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). “Trial courts must

       exercise judgment, particularly as to credibility of witnesses, and we defer to

       that judgment because the trial court views the evidence firsthand and we

       review a cold documentary record.” Id. at 941. Therefore, to the extent

       credibility or inferences are drawn, we give the trial court’s determinations

       substantial weight. Id.


[19]   Mother argues that the trial court abused its discretion when it modified

       Father’s child support obligation. She contends that, because Father has a

       doctorate of pharmacy degree, he is voluntarily underemployed and is working

       for a wage far less than he is capable of earning while helping to grow a

       business in which he owns no interest. Mother asserts that the trial court

       should have imputed potential income to him when calculating his child

       support obligation.


[20]   The trial court enjoys wide discretion in imputing income to ensure that the

       child support obligor does not evade his or her support obligation. Sexton v.

       Sedlak, 946 N.E.2d 1177, 1188 (Ind. Ct. App. 2011) (citing Apter v. Ross, 781

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015   Page 9 of 12
       N.E.2d 744, 761 (Ind. Ct. App. 2003), trans. denied), trans. denied. Regarding

       potential income, the Indiana Child Support Guidelines provide in pertinent

       part:

               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).


[21]   In this case, the evidence presented at the hearing showed that Father had been

       employed as a pharmacist at Health Plus Pharmacy in Mission, Texas since

       2013 and that he earned $518.00 per week and had no other sources of income.

       Father filed his financial declaration, paystubs, and proposed child support

       obligation worksheet, which all reflected this income. The trial court heard

       evidence regarding Father’s past business interests, and Father testified that he

       no longer had an interest in the business. Father testified that his wife worked,

       that he had substantial debt, and that he had additional children and support

       obligations. Father also told the court that he and his wife discussed his prior

       failed businesses and concluded that, by staying with his current employment,

       he may “get something out of it” in the future. Id. at 63.


[22]   Mother testified at the hearing that she was employed as a registered nurse and

       earned $700.00 per week and filed a financial declaration, reflecting the same.

       She also stated she was a full time student and studying to become an advance

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015   Page 10 of 12
       nurse practitioner. Because of her student status, Mother was making less at

       the time of the hearing than she had averaged in the past, but she hope that,

       after graduating in December 2014, she would improve her income. She further

       testified that she had voluntarily gone back to work to better her financial

       circumstances.


[23]   In its order modifying child support, the trial court specifically stated that

       Father’s income was “far lower than would be expected given his chosen

       occupation,” but found his current income credible based on his financial

       declaration and his tax return. Appellant’s App. at 283. The trial court further

       referenced Father’s testimony that he was maintaining his current employment

       because he hoped it would pay off in the future, and that Mother had also

       chosen to lower her income to attend school with the hope of earning more

       income. Id. Additionally, the trial court noted the testimony of both parties

       that they were earning less than at the time of the original support order. Id.

       The evidence presented supported the trial court’s determination. Mother’s

       arguments are merely requests for this court to reweigh the evidence, which we

       cannot do. MacLafferty, 829 N.E.2d at 941. The trial court had the opportunity

       to hear the evidence presented at the hearing and to observe the witnesses and

       make a credibility determination based on its observations; we defer to that

       judgment because the trial court viewed the evidence firsthand and we only

       review a cold documentary record. Id. We, therefore, conclude that the trial

       court did not abuse its discretion in not imputing income to Father and in

       modifying Father’s child support obligation.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JP-825 | June 30, 2015   Page 11 of 12
[24]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




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