                                                                         Jun 03 2015, 7:13 am




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Deborah Farmer Smith                                       R. Lee Money
Campbell Kyle Proffitt LLP                                 Greenwood, Indiana
Carmel, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Francis M. Laux,                                          June 3, 2015

Appellant-Respondent,                                     Court of Appeals Case No.
                                                          29A02-1410-DR-719
        v.                                                Appeal from the Hamilton Superior
                                                          Court.
                                                          The Honorable Jerry M. Barr, Senior
Pauletta Leann (Laux) Ferry,                              Judge.
Appellee-Petitioner                                       Cause No. 29D02-9804-DR-192




Baker, Judge.




Court of Appeals of Indiana | Opinion 29A02-1410-DR-719 | June 3, 2015                          Page 1 of 11
[1]   Francis Laux (Father) appeals the trial court’s order on Pauletta (Laux) Ferry’s

      (Mother’s) petition to modify Father’s child support obligation. Father raises

      the following arguments on appeal: (1) the trial court erroneously determined

      Father’s child support obligation; (2) the trial court erroneously calculated

      Father’s accrued child support underpayment. We find that the trial court

      erroneously credited Mother for Child’s health insurance payments given that

      her husband (Stepfather) makes those payments and the trial court elected to

      treat Mother and Stepfather as separate financial entities. We find no other

      error. We affirm in part, reverse in part, and remand with instructions.


                                                      Facts
[2]   Mother and Father were married at some point in the past. One child, Child,

      was born of the marriage on August 28, 1996. Mother and Father were

      divorced in March 1999, when the trial court entered a decree of dissolution

      incorporating their settlement agreement.


[3]   The parties’ settlement agreement provided that Father would pay child support

      in the amount of $1,000 per month. At that time, Father’s income totaled

      $1,615.38 per week.


[4]   On August 20, 2013, Mother filed a petition to modify Father’s child support

      obligation. The trial court held an evidentiary hearing on the petition on May 7

      and May 28, 2014. At the hearing, the following evidence was offered:


           During the four-year period preceding the hearing, Father’s income
            averaged $6,136 per week. At the time of the hearing, he was a self-

      Court of Appeals of Indiana | Opinion 29A02-1410-DR-719 | June 3, 2015     Page 2 of 11
        employed chiropractor with multiple offices in Marion County, and his
        weekly income during the year prior to the hearing totaled $4,943.50.
        Father testified that his income was “volatile” and “fluctuating.”
        Appellant’s App. p. 14.
       During that same four-year period, Mother’s income declined from
        $2,884.61 to $462 per week, and her average weekly income totaled
        $249.66. At the time of the hearing, she was employed as a real estate
        agent.
       Father and Mother have both remarried and have spouses with whom
        they share household expenses.
       Stepfather pays for Child’s health insurance. That cost is deducted from
        Stepfather’s paycheck in an amount of $110.52 per week.
       Father speculated that his wife could provide insurance for Child through
        his employer at an amount of “somewhere about $50 to $60 a week.
        Maybe a little more, maybe a little less.” Tr. p. 269-70.

The trial court found that Father’s weekly income, for child support purposes, is

$4,943.50, and that Mother’s weekly income, for child support purposes, is

$462. Additionally, the trial court observed that “[b]oth households enjoy

significant economic advantages for the minor child . . . from the parents’ and

step-parents’ contribution. The Court declines to impute income of either

stepparent to Mother or Father.” Appellant’s App. p. 15. In relevant part, the

trial court ordered that (1) Father’s child support obligation was increased to a

weekly amount of $443, (2) Father owed an increased amount of child support

retroactive to the date of the filing of the petition to modify in the amount of

$8,904, and (3) Mother was to continue to provide health insurance for Child.

Father now appeals.




Court of Appeals of Indiana | Opinion 29A02-1410-DR-719 | June 3, 2015    Page 3 of 11
              I. Amount of Father’s Child Support Obligation
[5]   Father argues that the trial court erroneously calculated the amount of his child

      support obligation. He contends that the trial court erred in calculating

      Mother’s income and Father’s income and in ordering that Mother continue to

      provide Child’s health insurance.


[6]   On review, a trial court’s calculation of child support is presumptively valid.

      Bogner v. Bogner, --- N.E.3d ---, 2015 WL 1944252, at *4 (Ind. 2015). When

      reviewing an order modifying a party’s child support obligation, we will

      consider only the evidence and reasonable inferences favorable to the judgment.

      Id. We will set aside the trial court’s judgment only if it was clearly erroneous.

      Id.


[7]   Modification of a child support order is governed by Indiana Code section 31-

      16-8-1(b), which provides as follows:

              (b)      Except as provided in section 2 of this chapter, modification
                       may be made 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 | Opinion 29A02-1410-DR-719 | June 3, 2015             Page 4 of 11
      In this case, Father does not contend that the modification itself was erroneous;

      instead, he argues that the trial court erred in its calculations.


                          A. Calculation of Mother’s Income
[8]   Father contends that the trial court erred in calculating Mother’s income.

      Weekly gross income is the sum of actual income, potential income if a parent

      is under employed, and imputed income based on “in kind” benefits. Indiana

      Child Support Guideline 3A(1).


                                    1. Imputation of Income
[9]   First, Father argues that the trial court should have imputed Stepfather’s

      income to Mother. The Commentary to the Child Support Guidelines

      addresses this issue:

              Whether or not income should be imputed to a parent whose living
              expenses have been substantially reduced due to financial resources
              other than the parent’s own earning capabilities is also a fact-sensitive
              situation requiring careful consideration of the evidence in each case. It may
              be inappropriate to include as gross income occasional gifts
              received. However, regular and continuing payments made by a
              family member, subsequent spouse, roommate or live-in friend that
              reduce the parent's costs for rent, utilities, or groceries, may be the
              basis for imputing income. The marriage of a parent to a spouse with
              sufficient affluence to obviate the necessity for the parent to work may
              give rise to a situation where either potential income or imputed
              income or both should be considered in arriving at gross income.
      Ind. Child Support Guideline 3A Commentary (d) (emphasis added). Our

      Supreme Court has held that a trial court may, indeed, choose to impute a

      spouse’s income to a parent in calculating that parent’s weekly gross income for


      Court of Appeals of Indiana | Opinion 29A02-1410-DR-719 | June 3, 2015               Page 5 of 11
       the purpose of child support. Glass v. Oeder, 716 N.E.2d 413, 417-18 (Ind.

       1999).


[10]   While there is ample authority standing for the proposition that a trial court

       may impute the income of a parent’s spouse, we have found none—and Father

       directs us to none—that requires it. And indeed, as noted above, the

       commentary to the Child Support Guidelines explicitly notes that this decision

       is “fact-sensitive” and requires “careful consideration of the evidence in each

       case.” Child Supp. G. 3A Cmt. (d). In this case, the trial court noted, and

       considered, the income provided by both Mother’s and Father’s spouses, and

       determined, under the facts of this case, that no imputation was warranted. We

       see no basis in the record before us to conclude that the trial court abused its

       discretion in this regard. Therefore, this argument is unavailing.


                              2. Evidence of In-Kind Benefits
[11]   Next, Father argues that the trial court erred by excluding evidence related to

       Stepfather’s income and whether that income should be imputed to Mother as

       an in-kind benefit. Initially, we note that we have already concluded that the

       trial court did not abuse its discretion in declining to impute Stepfather’s

       income to Mother.


[12]   In preparation for the hearing, Father prepared a document identified as

       Respondent’s Exhibit S, which related to his calculation of Mother’s weekly

       gross income. He prepared this document himself, and it admittedly contained

       his own estimates of various figures based upon interrogatories, testimony, and

       Court of Appeals of Indiana | Opinion 29A02-1410-DR-719 | June 3, 2015    Page 6 of 11
       matters outside of the evidence. Tr. p. 273-74. Mother objected to the

       admission of this document based upon hearsay and speculation, and the trial

       court sustained her objection.


[13]   Father attempts to reframe the issue on appeal as one of relevance. It is readily

       apparent, however, that the basis of the objection was hearsay and speculation

       rather than relevance. Furthermore, the documents on which Father based his

       calculations had already been admitted into evidence and were available for the

       trial court’s review. In the end, although Exhibit S was not admitted into

       evidence, Father was able to testify regarding the way in which he had

       calculated Mother’s income. Therefore, we find no error on this basis, and

       even if there had been error, it was harmless.


               3. Credit for Child’s Health Insurance Premium
[14]   Next, Father argues that the trial court erred by crediting Mother the amount of

       Child’s health insurance premium. Father contends that because it is

       Stepfather, rather than Mother, who actually pays this expense, it should not be

       credited to Mother.


[15]   The weekly cost of Child’s health insurance is undisputed. It is also undisputed

       that Stepfather, rather than Mother, pays this cost when it is deducted from his

       paycheck. We have already found above that it was not erroneous for the trial

       court to decline to impute Stepfather’s income to Mother. In other words, it

       was not erroneous for the trial court to treat Stepfather and Mother as separate

       financial entities. But the trial court then changed course and elected to treat

       Court of Appeals of Indiana | Opinion 29A02-1410-DR-719 | June 3, 2015    Page 7 of 11
       Stepfather and Mother as the same, or coexistent, financial entities for the

       purpose of the cost of Child’s health insurance. We do not believe that this

       inconsistency can stand.


[16]   Had the trial court elected to impute Stepfather’s income to Mother, it would

       have also made logical sense for it to credit Mother for Stepfather’s payment of

       the health insurance premium, and there would have been no error. But having

       decided not to impute that income to Mother, the trial court erred by changing

       tack and crediting her for payments he had made. Under these circumstances,

       we believe the trial court abused its discretion by crediting Mother for the cost

       of Child’s healthcare premium. We reverse and remand with instructions to

       recalculate the parties’ respective child support obligations with no credit to

       Mother for the cost of Child’s healthcare premium. 1


                             B. Calculation of Father’s Income
[17]   Next, Father argues that the trial court erroneously calculated his income for

       the purpose of child support. Specifically, Father contends that the trial court

       should have subtracted one-half of Father’s self-employment tax from his

       income.




       1
         Father also argues that the trial court erred by ordering that Mother continue to provide Child’s health
       insurance. Given our ruling on the issue of credit for the health insurance payments, we need not address
       this argument. We note briefly, however, that Father did not file a petition to modify the parties’ existing
       child support order, nor did he present evidence of “changed circumstances so substantial and continuing as
       to make the terms [of the existing child support order] unreasonable[.]” Ind. Code § 31-16-8-1(b)(1).
       Therefore, we find no error in the trial court’s ruling on this issue.

       Court of Appeals of Indiana | Opinion 29A02-1410-DR-719 | June 3, 2015                           Page 8 of 11
[18]   The Child Support Guidelines directly addresses this issue: “The self-employed

       shall be permitted to deduct that portion of their FICA tax payment that

       exceeds the FICA tax that would be paid by an employee earning the same

       Weekly Gross Income.” Ind. Child Support Guideline 3A(2). The

       Commentary elaborates:

               The self-employed pay FICA tax at twice the rate that is paid by
               employees. At present rates, the self-employed pay fifteen and thirty
               one-hundredths percent (15.30%) of their gross income to a designated
               maximum, while employees pay seven and sixty-five one-hundredths
               percent (7.65%) to the same maximum. The self-employed are
               therefore permitted to deduct one-half of their FICA payment when
               calculating Weekly Gross Income.
       Ch. Supp. G. 3A Cmt. (2)(a).


[19]   In this case, the trial court did not deduct one-half of Father’s FICA payment

       from his income. In arriving at its income calculation, however, the trial court

       relied on Father’s own child support worksheet. Indeed, the trial court used

       precisely the same calculations, and arrived at precisely the same result, as

       Father did.


[20]   If there was an error, therefore, it was an invited error. See Trabucco v. Trabucco,

       944 N.E.2d 544, 551 (Ind. Ct. App. 2011) (holding, where husband argued that

       the trial court erred in calculating his income for child support, that “Husband

       invited the error by failing to present sufficient evidence of his actual income”).

       But we find no error at all, inasmuch as the final income figure arrived at by the

       trial court was well within the scope of the evidence before it. See, e.g., Eppler v.

       Eppler, 837 N.E.2d 167, 173 (Ind. Ct. App. 2005) (holding that if the trial

       Court of Appeals of Indiana | Opinion 29A02-1410-DR-719 | June 3, 2015      Page 9 of 11
       court’s child support income figure includes the income required by the Child

       Support guidelines and falls within the scope of the evidence presented at the

       hearing, the trial court’s determination is not clearly erroneous). Consequently,

       we find no error on this basis.


                        II. Retroactive Child Support Amount
[21]   Finally, Father argues that the trial court erred in determining the amount he

       owes in retroactive child support. It is well established that “the trial court has

       the discretionary power to make a modification for child support relate back to

       the date the petition to modify is filed or any date thereafter chosen by the trial

       court.” Hatmaker v. Hatmaker, 998 N.E.2d 758, 763 (Ind. Ct. App. 2013), trans.

       denied.


[22]   In this case, Mother filed her petition to modify the child support arrangement

       on August 20, 2013. Before that date, Father’s child support obligation totaled

       $1,000 per month, or approximately $231 per week. The trial court granted

       Mother’s petition to modify, however, increasing Father’s child support

       obligation to $443 per week. The issue, therefore, is the amount of additional

       child support owed by Father dating back to August 20, 2013.


[23]   Father claims that he presented evidence that at some point, he began

       voluntarily paying an extra $100 per month in child support. Tr. p. 234-35.

       Father offered no evidence of the date on which he began overpaying, nor did

       he offer any documents to support his assertion. Moreover, Father



       Court of Appeals of Indiana | Opinion 29A02-1410-DR-719 | June 3, 2015    Page 10 of 11
       acknowledges that he was required to—and did—pay for half of Child’s

       extracurricular expenses, the cost of which has increased over the years.


[24]   The trial court would have been within its discretion either to discount Father’s

       unsupported testimony regarding an alleged overpayment or to determine that

       the overpayment was intended to cover Father’s share of Child’s extracurricular

       expenses. We see no basis to conclude that the trial court abused its discretion

       in declining to credit Father for a child support overpayment of $100 per

       month, and find no error in its calculation of the amount of retroactive child

       support owed by Father.


[25]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions to recalculate (1) Mother’s income with no credit

       for Child’s health insurance payment, (2) Father’s child support obligation

       given the adjustment to Mother’s income, and (3) Father’s retroactive child

       support owed given the adjustment to Father’s child support obligation.


       Friedlander, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 29A02-1410-DR-719 | June 3, 2015   Page 11 of 11
