ATTORNEY FOR APPELLANT                                       ATTORNEY FOR APPELLEE
Derick W. Steele                                             Jacob D. Winkler
Kokomo, Indiana                                              Kokomo, Indiana

______________________________________________________________________________



                                In the
                        Indiana Supreme Court                               Oct 01 2014, 9:25 am

                            _________________________________

                                     No. 34S04-1410-JP-607

IN RE THE PATERNITY OF D.M.Y., ET AL.,

M.R.,

                                                             Appellant (Respondent below),

                                              v.

B.Y.,

                                                             Appellee (Petitioner below).

                            _________________________________

                            Appeal from the Howard Circuit Court
                                   No. 34C01-9904-JP-59
                              The Honorable Lynn Murray, Judge
                          The Honorable Erik J. May, Juvenile Referee
                           _________________________________

        On Petition to Transfer from the Indiana Court of Appeals, No. 34A04-1310-JP-504
                             _________________________________

                                         October 1, 2014

Per Curiam.

        We grant transfer and reverse because the record shows that the party obligated to pay
child support has not received credit for a substantial sum of money, $7,025.84, seized from his
bank account and later paid to the other party as child support.
                                           Background


        In 1999, the trial court found M.R. (“Father”) to be the father of B.Y.’s (“Mother’s”) two
children and ordered that Mother retain custody of the children and that Father pay $146 weekly
as child support. On November 16, 2010, the court found Father in arrears in the amount of
$21,337, and it ordered that $15,000 in funds attached from Father’s bank be released to Mother
for child support. The $15,000 was distributed to Mother on November 19, 2010.


       Father later filed several motions, including a motion to determine his arrearage. The
court held an evidentiary hearing on June 20, 2012. The evidence showed that on June 30, 2011,
the State intercepted an additional $7,025.84 from Father’s bank account. It showed that sum had
been distributed to Mother in early January 2012, and Mother acknowledged having received a
deposit of that amount in her bank account.


       Also at the hearing, the trial court admitted Petitioner’s Exhibit 1, a summary of Father’s
arrearage as of December 31, 2011. Petitioner’s Exhibit 1 first calculated the total arrears as
$6,483 and then listed the amount in the clerk’s “undistributed account” as $7,025.84. Father
objected to the admission of Petitioner’s Exhibit 1 on the ground that it did not accurately reflect
that, as of the time of that hearing, the $7,025.84 had already been distributed to Mother. When
the court asked whether Father believed that exhibit was accurate as of December 31, 2011,
Father’s counsel responded, “Yes, and as long as the court puts that note down that as of that
date [sic].” (Tr. at 43.) The court then noted it would accept the exhibit “in that context” and
admit it with that “caveat for what it is.” (Id.) On September 18, 2012, the court issued an order
finding Father to be in arrears in the amount of $6,483 (the same amount alleged in Petitioner’s
Exhibit 1) as of December 31, 2011.


       Later, Mother moved to have Father held in contempt for failure to pay child support. On
July 31, 2013, the court held an evidentiary hearing on Mother’s request. At that hearing, Mother
introduced an exhibit summarizing her calculation of Father’s arrearage to be $13,055 (the
$6,483 arrearage through December 31, 2011, plus the additional arrearage of $6,572 that Father

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had allegedly accumulated by failing to pay child support as ordered from January 1, 2012,
through July 29, 2013). That exhibit gave Father credit for having paid child support in the
amount of $5,400 from January 1, 2012, through July 29, 2013, but did not include a credit for
the $7,025.84. On September 4, 2013, the court issued an order finding Father in indirect
contempt for his willful failure to pay child support as ordered, finding him to be in arrears in the
amount of $13,055 as of July 29, 2013, and authorizing a wage withholding order.


       Father appealed, claiming that the trial court erred when determining his arrearage to be
$13,055 as of July 29, 2013. Specifically, he argued that the trial court failed to credit him for the
January 2012 distribution of $7,025.84 to Mother. In a memorandum decision, the Court of
Appeals rejected Father’s argument and affirmed the trial court, over Judge Robb’s dissent. In re
Paternity of D.M.Y., No. 34A04-1310-JP-504 (Ind. Ct. App. May 15, 2014), vacated. We grant
transfer to address Father’s argument.


                                           Discussion


       As a preliminary matter, Mother argues Father’s appeal should be dismissed or, in the
alternative, the trial court’s order should be affirmed because Father failed to appeal the
September 18, 2012 order. Mother suggests Father could have raised the $7,025.84 credit issue
in an appeal of the September 18, 2012 order and his failure to do so waived the issue. We
disagree. The September 18, 2012 order found Father’s arrearage to be $6,483 as of December
31, 2011, a date that preceded distribution of the $7,025.84 to Mother and that preceded the date
of the September 18, 2012 order by nearly nine months. In other words, the September 18, 2012
order did not include a finding of the amount of Father’s current arrearage as of that date and did
not address whether Father was receiving credit for the $7,025.84 distribution to Mother.


       For an issue covered by the findings of fact, this Court applies a two-tiered standard of
review, asking whether the evidence supports the findings and whether the findings support the
judgment. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). Here, the trial court found
Father to be in arrears in the amount of $13,055 as of July 29, 2013, but its order does not
include any subsidiary findings showing how the court reached that figure, and the court’s orders

                                                  3
do not mention the amount of $7,025.84. It seems the trial court adopted the figure of $13,055
set out in Mother’s exhibit at the July 31, 2013 hearing.


       Our analysis of the evidence is very similar to the analysis in Judge Robb’s dissenting
opinion and the calculations provided by Father. Starting with the November 16, 2010 order,
Father’s arrearage was set at $21,337. From that date until July 29, 2013, Father owed an
additional $20,440 ($146 times 140 weeks) in child support. Thus, his total support obligation
was $41,777. Amounts of $15,000 and $7,025.84 seized from his bank account were paid as
child support, Father himself paid an additional $8,625 to the clerk’s office during that period,
and the court awarded Father tax credits of $5,389. Therefore, Father’s payments and tax credits
for the period totaled $36,039.84. Subtracting $36,039.84 from $41,777 leaves $5,737.16. And
the difference between $13,055 and $5,737.16 ($7,317.84, which equals $7,025.84 plus two
weekly payments of $146) shows the trial court’s determination of Father’s arrearage as $13,055
failed to credit him for the $7,025.84.


       Mother has not provided a comprehensive alternative calculation of the arrearage since
the November 16, 2010 order. Instead, she argues we should presume the September 18, 2012
order credited Father for the $7,025.84 because that money was seized from his bank account
before December 31, 2011. Assuming without deciding that such a presumption could serve as
an analytical starting point, the evidence overcomes it. Petitioner’s Exhibit 1, on which the trial
court apparently relied in determining Father’s arrearage to be $6,483 as of December 31, 2011,
included the $15,000 intercepted from Father’s bank account and paid to Mother as an “amount
paid” and as part of the “arrears calculation,” but it did not similarly include the later-intercepted
$7,025.84 as an “amount paid” or part of the “arrears calculation” or list it alongside the tax
credits given to Father; instead, the exhibit listed the $7,025.84 separately, after the “total
arrearage” was calculated and under the separate heading entitled “amount in clerk of court’s
undistributed account.” (Volume of Exhibits, Tab 1 for June 20, 2012 Hr. (capitalization
omitted).) Moreover, as set out in the preceding paragraph, the numbers themselves show the
trial court’s arrearage calculations have not given Father credit for the $7,025.84.




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                                           Conclusion


       We reverse the trial court’s order and remand for further proceedings, consistent with this
opinion, to recalculate Father’s arrearage to provide him credit for the $7,025.84 payment.




Rush, C.J., and Dickson, Rucker, David, and Massa, JJ., concur.




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