                                                                  FILED
                                                             Feb 28 2017, 6:42 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Paul R. Sturm                                              Daniel J. Borgmann
Shambaugh Kast Beck & Williams, LLP                        Helmke Beams LLP
Fort Wayne, Indiana                                        Fort Wayne, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Danielle Maple,                                            February 28, 2017
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           02A03-1608-DR-1889
        v.                                                 Appeal from the Allen Circuit
                                                           Court
Travis Maple,                                              The Honorable Thomas J. Felts,
Appellee-Petitioner                                        Judge
                                                           The Honorable John D. Kitch, III,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           02C01-0908-DR-756



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 02A03-1608-DR-1889 | February 28, 2017           Page 1 of 13
                                           Case Summary
[1]   In order to have a child-support order modified, the parent seeking modification

      must prove that either there was a change in circumstances so substantial and

      continuing as to make the prior order unreasonable, or that at least twelve

      months have passed since the issuance of the prior order and that the amount of

      support would change by more than 20% from the prior order. Our Supreme

      Court has held that when a parent relies on a change in income as a basis for

      modification but the change in support would not be more than 20%, that

      parent must prove that one or more other factors “converged” with the change

      in income to establish the requisite “substantial and continuing” change. It is

      an uncommon occurrence for a parent to meet this burden.

[2]   In this case, Father requested that the trial court modify his child-support

      obligation based on changes in his and Mother’s incomes and other factors. He

      argued that these changes “converged” to established a change in circumstances

      so substantial and continuing as to make the prior order unreasonable. The

      trial court recalculated Father’s support obligation, which differed by less than

      20% from the prior order. The court issued the modified child-support order,

      citing changed circumstances as the basis for modification. Mother appeals.

[3]   One of the changed circumstances relied upon by Father and the trial court is

      that Mother’s legal duty of support for her prior-born child was set by the trial

      court at $66 per week instead of $121, as represented on the prior-born child’s

      child-support worksheet. That worksheet was still in effect and was not subject


      Court of Appeals of Indiana | Opinion 02A03-1608-DR-1889 | February 28, 2017   Page 2 of 13
      to review in these proceedings. Concluding that the trial court erred when it set

      Mother’s legal duty of support for her prior-born child at an amount lower than

      what was on her child-support worksheet and that Father has not otherwise

      proven a change in circumstances so substantial and continuing as to make the

      prior order unreasonable, we reverse and remand with instructions.



                             Facts and Procedural History
[4]   Before her relationship with Travis Maple (“Father”), Danielle Maple

      (“Mother”) gave birth to a child, J.W. When her relationship with J.W.’s

      father ended, Mother retained primary physical custody of J.W and sought a

      child-support order. In 2005, the trial court in that matter used a Child Support

      Obligation Worksheet to calculate child support, which, in part, set Mother’s

      legal duty of support for J.W. at $121 per week1 (Line 6 – “PARENT’S CHILD

      SUPPORT OBLIGATION”) and J.W.’s father’s child-support obligation at

      $86 per week (“2005 worksheet”). The court adopted the 2005 worksheet in its

      child-support order, which was still in effect at the time of this proceeding. The

      2005 child-support worksheet reads as follows:




      1
       The Indiana Child Support Guidelines (“Guidelines”) explain that a “legal duty of support” for a prior-born
      child occurs when a custodial parent does not have a support order entered against her but that parent has a
      duty to support the child when in her custody. See Ind. Child Support Guideline 3(C).

      Court of Appeals of Indiana | Opinion 02A03-1608-DR-1889 | February 28, 2017                    Page 3 of 13
      Appellant’s App. p. 48 (emphasis added).

[5]   Sometime after her relationship with J.W.’s father ended, Mother and Father

      were married. During their marriage they had two children, K.M. and A.M.,

      who are both still minors. Mother and Father divorced in 2009. In September

      2012, Mother and Father jointly petitioned the court to modify child support

      and custody. The court granted them joint legal custody and Mother primary

      physical custody (“2012 order”). The 2012 order also granted Father 122

      annual overnights, including every other weekend and one additional weekend

      Court of Appeals of Indiana | Opinion 02A03-1608-DR-1889 | February 28, 2017   Page 4 of 13
      per month, as well as a midweek visit up to four hours. Father’s child-support

      obligation was set at $245 per week. Id. at 37.


[6]   Approximately two years later, Mother petitioned the court for a modification

      of custody and parenting time and requested attorney’s fees. Among other

      things, Mother sought sole legal custody of K.M. and A.M. Father then moved

      to modify child support. At the joint hearing on Mother’s petition and Father’s

      motion, the parents disagreed on the amount of parenting time Father was

      exercising. Mother testified that Father did not exercise his parenting time

      “four summers in a row.” Cons. Tr. p. 118. Father argued that he exercised

      more parenting time than Mother claimed.

[7]   Regarding child support, Mother and Father agreed on all figures except for

      Mother’s legal duty of support for J.W. Mother submitted a copy of the 2005

      worksheet, showing that her legal duty of support for J.W. was $121 per week.

      Father’s counsel questioned Mother about the accuracy of the 2005 worksheet,

      and she admitted that several numbers on the worksheet were no longer

      accurate: her income had increased by $150 per week; J.W.’s father’s income

      had roughly tripled; her work-related child-care expenses were lower; J.W.’s

      father’s overnight parenting time had changed; and both she and J.W.’s father

      had at least one subsequent-born child. Id. at 122-24. Despite these changes,

      Mother argued that the court should set her legal duty of support for J.W. at

      $121 per week because the duty for a prior-born child “is based upon the current

      Court Order.” Id. at 111. Mother also stated that, even with the changes,

      J.W.’s father’s child-support obligation “went up just maybe five dollars ($5).”

      Court of Appeals of Indiana | Opinion 02A03-1608-DR-1889 | February 28, 2017   Page 5 of 13
      Id. at 119. Father, on the other hand, argued that Mother’s legal duty of

      support for J.W. should be set at $66 per week, not $121. When questioned

      about how he came up with that amount, Father stated, “[M]y attorney

      provided me with that information. . . . I do not know how to calculate it.” Id.

      at 103.

[8]   The trial court ordered that Mother and Father would retain joint legal custody

      of K.M. and A.M. and that each parent would be responsible for their own

      individual attorney’s fees. However, the court modified the 2012 parenting-

      time schedule: Father’s annual overnights were reduced from 122 to 104;2 he

      retained overnights every other weekend but lost the additional weekend every

      month. Father does not appeal the reduction of his parenting time.

[9]   Finding that Father “demonstrated a substantial and continuing change in

      circumstances that makes the previously entered child support Order

      unreasonable,” Appellant’s App. Vol. II p. 26, the court recalculated Father’s

      child-support obligation. In its calculation, the court adopted the numbers

      submitted by Mother and Father, including their 2015 W-2s: Father earned or

      was capable of earning $883 per week (a decrease of $98.31 per week from the

      2012 order); Mother earned or was capable of earning $592 per week (an

      increase of $192 per week from the 2012 order); Father paid $20 per week in




      2
        Nothing in the record indicates how the court reached the total of 104 annual overnights. The record
      indicates that Father was given standard parenting time per the Guidelines, which would amount to 96-100
      annual overnights. See Ind. Child Support Guideline 6.

      Court of Appeals of Indiana | Opinion 02A03-1608-DR-1889 | February 28, 2017                  Page 6 of 13
work-related child-care expenses; Mother paid $130 per week in work-related

child-care expenses; and both Mother and Father paid $7 per week in health-

insurance premiums for K.M. and A.M. Id. at 25. The court rejected Mother’s

argument that it must use the value on Line 6 of the 2005 worksheet as the

value on Line 1C (“Child Support Duty for prior born”) of the 2016 worksheet.

Rather, the court agreed with Father that Mother’s legal duty to support J.W.

was only $66 per week, not $121. The 2016 child-support worksheet reads as

follows:




Court of Appeals of Indiana | Opinion 02A03-1608-DR-1889 | February 28, 2017   Page 7 of 13
       Id. at 28 (emphasis added). Father’s child-support obligation was reduced from

       $245 per week to $205 per week, a decrease of 16.33%.

[10]   Mother now appeals.



                                  Discussion and Decision
[11]   Mother argues that Father has failed to satisfy the statutory requirements for

       modification of his child-support obligation. Specifically, she contends that the

       changed circumstances are not so substantial and continuing as to make the

       2012 child-support order unreasonable. Whether there was a substantial and

       continuing change in circumstances to render the prior child-support order

       unreasonable is a mixed question of law and fact. MacLafferty v. MacLafferty,

       829 N.E.2d 938, 941 (Ind. 2005). “To the extent it is a question of law, it is the

       duty of the appellate court to give it de novo review—and doing so promotes

       values of consistency, predictability, and enunciation of standards that curb

       arbitrariness.” Id.


[12]   (b) A child-support order can only be modified:

               (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%)



       Court of Appeals of Indiana | Opinion 02A03-1608-DR-1889 | February 28, 2017   Page 8 of 13
                             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.


       Ind. Code § 31-16-8-1(b). The court found, and Father concedes on appeal, that

       the change in Father’s child-support obligation was only 16.33% and did not

       meet the 20% threshold for modification under subsection (b)(2). Appellant’s

       App. Vol. II p. 26; Appellee’s Br. p. 9. However, the trial court found that

       Father had satisfied subsection (b)(1) and therefore had proven that there was a

       “substantial and continuing change that makes the previously entered child

       support Order unreasonable.” Appellant’s App. Vol. II p. 26.


[13]   When a parent relies upon a change in income as the basis for modification and

       the modification does not differ by more than 20% from the prior order,

       modification under subsection (b)(1) is rarely appropriate. In MacLafferty, the

       father argued that an increase in the mother’s weekly income justified a

       modification of his child-support obligation. Although the father’s child-

       support obligation did not differ by more than 20%, thus failing to satisfy

       Section 31-16-8-1(b)(2), the trial court concluded that the increase in the

       mother’s income was so substantial and continuing as to make the prior order

       unreasonable and granted the father’s modification request. Our Supreme

       Court reversed and explained that when a change in the parent’s income would

       modify the child-support order by less than 20%, that change, by itself, is not


       Court of Appeals of Indiana | Opinion 02A03-1608-DR-1889 | February 28, 2017   Page 9 of 13
       enough to meet the statutory burden of subsection (b)(1), but “[t]here may be

       situations where a variety of factors converge to make such a modification

       permissible under the terms of the statute. While we do not find this case to be

       such a situation, we do not foreclose such a possibility.” MacLafferty, 829

       N.E.2d at 942. In other words, in order to satisfy subsection (b)(1) a parent

       must prove that one or more factors, in addition to any change in income, have

       “converged” to create a change in circumstances so substantial and continuing

       as to make the prior order unreasonable. Although MacLafferty did not

       foreclose the possibility, it will be uncommon for multiple factors to “converge”

       to create a change in circumstances so substantial and continuing as to make

       the prior order unreasonable. This case is not one of those instances. See Patton

       v. Patton, 48 N.E.3d 17 (Ind. Ct. App. 2015) (holding that an emancipated child

       was a “substantial and continuing change” that warranted modification of

       father’s child-support obligation); Borum v. Owens, 852 N.E.2d 966 (Ind. Ct.

       App. 2006) (concluding that a child’s marriage was a “substantial change in

       circumstances” that rendered father’s college expense obligation unreasonable).

[14]   Neither Mother nor Father disputes their changed incomes, and Father does

       not argue that the changed incomes by themselves justify a modification.

       Rather, Father relies on MacLafferty and contends that there were several other

       factors that “converged” to create a change in circumstances so substantial and

       continuing as to make the prior order unreasonable. Appellee’s Br. p. 11.

       Those changed circumstances are: a change in weekly work-related child-care

       expenses; a change in the allocation of payment of the weekly work-related


       Court of Appeals of Indiana | Opinion 02A03-1608-DR-1889 | February 28, 2017   Page 10 of 13
       child-care expenses; a change in the weekly health-insurance premium; a

       change in Father’s parenting time; and a change in Mother’s legal duty of

       support for J.W. Id. at 7. We disagree with Father.


[15]   Three of the changed circumstances that Father relies on are nominal. There

       was an increase of $2 per week in the work-related child-care expenses, from

       $148 to $150 per week. The allocation of payment of the work-related child-

       care expenses also changed: Mother’s payment decreased $18 per week to $130,

       and Father’s payment increased from $0 to $20 per week. Last, the change in

       weekly health-insurance premiums decreased for both Father and Mother by $1

       per week and $0.50 per week, respectively.

[16]   Father also relies on the decrease in his parenting time as justification for a

       reduction in his child-support obligation. The Guidelines state, “A credit

       should be awarded for the number of overnights each year that the child(ren)

       spend with the noncustodial parent.” Ind. Child Support Guideline 6. In other

       words, a reduction in Father’s parenting time would support an increase in his

       child-support obligation, not a decrease.


[17]   Regarding Mother’s legal duty of support for J.W., Father argues that the 2005

       worksheet is no longer accurate and that Mother’s current duty is actually $66

       per week, based on information from his attorney. On the other hand, Mother

       contends that the trial court erred when it set her duty at $66 per week instead

       of $121, as indicated on the 2005 worksheet. We agree with Mother. Mother’s

       legal duty of support for J.W. was set in the 2005 child-support order, which


       Court of Appeals of Indiana | Opinion 02A03-1608-DR-1889 | February 28, 2017   Page 11 of 13
       remains in effect. As a matter of law, when a child-support order is in effect for

       a prior-born child, another court must follow that order when calculating child

       support for subsequent-born children. To permit the subsequent court to do

       otherwise would allow that court to re-litigate child-support orders that are not

       subject to the case before it. This would create a trial within a trial and open

       the door to countless issues, including hauling third parties into court who are

       not subject to the underlying case.

[18]   Furthermore, to allow a trial court to proceed in this manner could very likely

       run afoul of the Guidelines’ objectives and result in inconsistent outcomes. See

       Ind. Child Support Guideline 1 (“The Guidelines have three objectives: . . . (2)

       To make awards more equitable by ensuring more consistent treatment of

       people in similar circumstances . . . .”). For example, in this case, Mother

       would have two different court orders regarding her legal duty of support for

       J.W., one setting her duty at $121 per week and another order setting it at $66

       per week. Expanding beyond this case, trial courts would have the option of

       deciding whether or not to re-litigate a prior child-support order’s legal duty

       amount or to adopt the order as is. Allowing the trial court to have this option

       could result in inconsistent outcomes for similarly situated families, which the

       Guidelines explicitly guard against.

[19]   For the foregoing reasons we conclude that the trial court should not have set

       Mother’s legal duty of support for J.W., her prior-born child, at an amount less

       than what was calculated by the previous court. Furthermore, we conclude

       that, like MacLafferty, the factors relied upon by Father do not “converge” to

       Court of Appeals of Indiana | Opinion 02A03-1608-DR-1889 | February 28, 2017   Page 12 of 13
       create a “change in circumstances so substantial and continuing as to make the

       terms” of the 2012 child-support order “unreasonable.” I.C. § 31-16-8-1(b)(1).

       We reverse the issuance of the 2016 child-support order and reinstate the 2012

       order. We further order the trial court to set this matter for hearing within sixty

       days of the certification of this opinion by the clerk to calculate the amount of

       arrearage Father owes, dating back to the implementation of the erroneous

       2016 order, and to set an appropriate repayment schedule for Father.

[20]   Reversed and remanded with instructions.

       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1608-DR-1889 | February 28, 2017   Page 13 of 13
