      MEMORANDUM DECISION
                                                                                 Mar 17 2015, 10:06 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.



      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Amy O. Carson                                             Kathleen M. Meek
      Ashley L. Balicki                                         Justin T. Bowen
      Mitchell Law Group                                        Bowen & Associates, LLC
      Indianapolis, Indiana                                     Carmel, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Paternity of                        March 17, 2015
      C.N.W.:                                                  Court of Appeals Case No.
                                                               29A04-1407-JP-300
      Christa E. Phelps,
                                                               Appeal from the
      Appellant-Respondent,                                    Hamilton Circuit Court
                                                               The Honorable Judith S. Proffitt,
              v.                                               Senior Judge
                                                               Cause No. 29C01-1210-JP-1535
      Mark L. Wishart,
      Appellee-Petitioner.




      Kirsch, Judge.

[1]   Christa E. Phelps (“Mother”) appeals the trial court’s order determining child

      support obligations pursuant to Mark L. Wishart’s (“Father”) petition to

      establish paternity. Mother raises several issues regarding the calculation of


      Court of Appeals of Indiana | Memorandum Decision 29A04-1407-JP-300 | March 17, 2015          Page 1 of 4
      child support. Because we find insufficient competent evidence in the record to

      determine if the child support obligations were properly calculated, we vacate

      the trial court’s judgment and remand for a new hearing.


[2]   Mother and Father are the parents of one child, C.N.W. At the time of

      C.N.W.’s birth, the parents were in a relationship, and began living together

      around June 2012. They separated and began living separately in September

      2012. On October 15, 2012, Father filed a petition to establish child support.

      Father is a full-time realtor and is paid on a commission basis for his services.

      In addition to being a realtor, Father owns and manages approximately

      nineteen rental properties. Father characterizes these properties as his

      retirement plan and asserts that they will not make a profit until the mortgages

      on them are paid in full.


[3]   At the April 7, 2014 hearing on Father’s petition, he presented evidence that in

      2013 the costs associated with the rental properties exceeded the gross rental

      receipts, resulting in a net loss of $3,134.17. The business expenses that Father

      deducted from the gross rental receipts included, but were not limited to,

      maintenance, repairs, mortgage interest, mortgage principal, property taxes,

      and insurance. Father testified that he did approximately 75% of the repairs to

      the properties himself, but that some needed to be outsourced to outside

      contractors. In determining repair and maintenance costs, Father testified he

      did not place a value on the work he performed, but only included the actual

      costs incurred. At the time of the hearing, several of the mortgages on the



      Court of Appeals of Indiana | Memorandum Decision 29A04-1407-JP-300 | March 17, 2015   Page 2 of 4
      rental properties had been paid off, and Father testified he was accelerating the

      payment on one of the properties. Tr. at 55-56.


[4]   On April 14, 2014, the trial court issued its order on child support. It found that

      Father’s expenses exceeded the gross rental receipts from his rental properties

      and that the rental properties generated no income for Father. The trial court

      found Father’s gross weekly income to be $580 per week, which was consistent

      with the income on Father’s 2013 Form 1099 reflecting his commissions as a

      realtor. The trial court imputed a minimum wage of $290 per week to Mother

      as, at the time, she was a full-time student, working only on a part-time basis.

      The trial court did not deviate from the Indiana Child Support Guidelines.


[5]   On appeal, Mother argues, in part, that the trial court erred in its calculation of

      Father’s gross income for child support purposes, specifically that the trial court

      erred in reducing Father’s gross income by failing to take into account his rental

      income and deducting the mortgage payments and in deducting repairs and

      maintenance for the properties. In our review of the record, we conclude that

      Father failed to provide sufficient competent evidence with which to determine

      how his rental income and expenses should have been calculated. We were

      unable to find mortgage documents in the record for each of Father’s rental

      properties that reflected the actual monthly mortgage amounts owed on each

      property. We were also unable to find documentation detailing the repairs and

      maintenance performed on the properties. With such evidence lacking from the

      record, the trial court was left to make its determination on conclusory evidence

      presented by Father. Because such evidence was not presented to the trial

      Court of Appeals of Indiana | Memorandum Decision 29A04-1407-JP-300 | March 17, 2015   Page 3 of 4
      court, we conclude that the trial court abused its discretion in its calculation of

      child support and in basing its determination on conclusory evidence. We

      vacate the trial court’s judgment and remand for a new hearing so that adequate

      evidence can be presented to determine whether Father is paying the correct

      amount on his mortgage payments for the rental properties such that the

      payments may properly be deducted and to show an itemization of the repairs

      and maintenance performed on the rental properties to determine if such

      amounts can properly be deducted.


[6]   Vacated and remanded with instructions.


      Friedlander, J., concurs.


      Crone, J., concurs in result.




      Court of Appeals of Indiana | Memorandum Decision 29A04-1407-JP-300 | March 17, 2015   Page 4 of 4
