                                                                              FILED
                                                                        Jan 18 2018, 8:45 am

                                                                              CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Mark C. Guenin                                            R.P. Fisher
Guenin Law Office, P.C.                                   Fisher & Ireland
Wabash, Indiana                                           Wabash, Indiana

ATTORNEY FOR AMICUS CURIAE
NEIGHBORHOOD CHRISTIAN LEGAL
CLINIC
Amy C. Cornell
Wabash, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Dayne J. Marshall,                                        January 18, 2018
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          85A02-1706-DR-1503
        v.                                                Appeal from the Wabash Superior
                                                          Court
Angela M. Marshall,                                       The Honorable Patrick R. Miller,
Appellee-Petitioner.                                      Special Judge
                                                          Trial Court Cause No.
                                                          85D01-0811-DR-424




Brown, Judge.



Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018                     Page 1 of 20
[1]   Dayne J. Marshall (“Father”) appeals from the trial court’s order modifying

      child support and raises the issue of whether the trial court erred in entering the

      weekly gross income of Angela M. Marshall (“Mother”) on its child support

      obligation worksheet. Mother cross-appeals and raises a number of issues

      including whether the court erred in determining that she was voluntarily

      underemployed, in determining Father’s weekly gross income, in finding her in

      contempt, and in denying her request for attorney fees. We affirm in part,

      reverse in part, and remand.


                                        Facts and Procedural History

[2]   Father and Mother were married in January of 2005 and had a child in March

      of 2008. In June of 2009, the trial court entered a final decree dissolving the

      parties’ marriage, and the decree incorporated a settlement agreement related to

      custody, parenting time, and the division of property. The settlement

      agreement provided that Father and Mother would have joint legal custody,

      Father would have physical custody, and no child support would be due at that

      time. On August 30, 2010, the court entered an order which stated in part that

      Father had filed a motion for modification of child support and ordered that

      Mother begin making child support payments of fifty-two dollars per week.1




      1
       The court also stated in part that Father had filed a motion for modification of parenting time, that it was
      concerned that Mother tested .074 on a breathalyzer test at 9:00 a.m. on a Tuesday morning when she knew
      she was responsible for the care of the child, and that, rather than curtail her parenting time, Mother was
      ordered to submit to a portable breath test thirty minutes before parenting time begins.

      Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018                       Page 2 of 20
[3]   On April 12, 2016, Mother filed a motion for modification of child support

      alleging there had been a substantial and continuing change in circumstances

      and that application of the guidelines would result in a decrease of support of

      more than twenty percent. On August 5, 2016, Father filed an affidavit for

      citation for contempt of court stating that child support of fifty-two dollars per

      week was payable by Mother beginning on August 27, 2010, that Mother had

      willfully disobeyed the order in that she refused to pay child support, that

      through July 31, 2016, Mother was in arrears in the sum of $4,157, and that

      Mother should be required to pay all expenses incurred as a result of the

      violation. On April 28, 2017, the court held a hearing on the parties’ motions at

      which they presented evidence regarding, among other matters, their work and

      incomes. Both parties requested attorney fees.


[4]   On June 5, 2017, the court issued an order which provided in part:


              1.       The Court adopts the Child Support Obligation Worksheet
                       attached hereto as Exhibit A. The CSOW imputes
                       [Mother’s] income on a full time, rather than a part time,
                       basis.

              2.       The Court determines that [Mother] met her burden in
                       demonstrating a modification of child support is
                       warranted.

              3.       Therefore, the Court orders that [Father] shall pay to
                       [Mother] child support in the amount of $58.00 per week
                       commencing Friday April 15, 2016. [Mother]’s prior
                       weekly child support obligation is terminated effective
                       April 14, 2016.

                                                    *****

      Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018   Page 3 of 20
        5.       [Mother]’s child support arrearage as of April 14, 2016 is
                 $4,151.00.

        6.       From April 15, 2016 through April 28, 2017, [Mother]
                 paid weekly child support, not due as a result of this
                 modification in the sum of $2,130.00 which shall reduce
                 her child support arrearage to $2,021.00.

        7.       [Father]’s child support arrearage as of and including April
                 28, 2017 (date of court hearing) is $3,190.00.

        8.       The Court offsets the parties’ child support arrearages and
                 finds that [Father] now owes a net child support arrearage
                 as of and including April 28, 2017 of $1,169.00.

        9.       In addition to his regular weekly child support obligation,
                 [Father] shall pay the sum of $25.00 per week until the
                 child support arrears are paid in full.

                                              *****

        12.      For child support calculations, the Court has specifically
                 found that:

                 a.       [Mother] is voluntarily underemployed and
                          therefore her income is imputed at $450.79 per
                          week;

                 b.       [Father] works large amounts of overtime but
                          should not be required to do so just to pay child
                          support and therefore his income is set at $1,608.40
                          per week.

        13.      [Mother] is hereby found in contempt of Court prior to
                 April 14, 2016. The Court notes that as of that date
                 [Mother] was in arrears $3,571.00 and not paying child
                 support when due regularly and consistently.

        14.      [Mother] provided no reason as to why she was not paying
                 child support consistently and regularly during said time
                 period.


Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018      Page 4 of 20
                                                    *****

              16.      Both parties have incurred substantial attorney’s fees to
                       pursue this action. Due to [Mother]’s contempt of Court
                       she should be ordered to pay her own attorney’s fees; due
                       to the huge disparity of income between the parties,
                       [Father] should likewise be ordered to pay his own
                       attorney’s fees.

      Appellant’s Appendix Volume II at 27-28. The child support obligation

      worksheet attached to the court’s order provided that Father’s weekly gross

      income was $1,608.40, that Mother’s weekly gross income was $450.79, and

      that the recommended child support obligation was for Father to pay support of

      fifty-eight dollars per week.


                                                   Discussion

[5]   The issue is whether the trial court’s modification and findings are clearly

      erroneous. The parties present arguments regarding their weekly gross

      incomes, and Mother challenges the finding of contempt and denial of her

      request for attorney fees.


      A.      The Parties’ Weekly Gross Incomes


[6]   We first address the parties’ arguments regarding their weekly gross incomes for

      purposes of calculating child support. “We place a strong emphasis on trial

      court discretion in determining child support obligations and regularly

      acknowledge the principle that child support modifications will not be set aside

      unless they are clearly erroneous.” Lea v. Lea, 691 N.E.2d 1214, 1217 (Ind.

      1998) (citation and internal quotation marks omitted). Findings are clearly

      Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018   Page 5 of 20
      erroneous only when the record contains no facts to support them either

      directly or by inference. Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). We

      give due regard to the trial court’s ability to assess the credibility of witnesses.

      Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000), reh’g denied.

      In our review, we first consider whether the evidence supports the factual

      findings, and then we consider whether the findings support the judgment. Id.

      While we defer substantially to findings of fact, we do not do so to conclusions

      of law. Id. We do not reweigh the evidence; rather we consider the evidence

      most favorable to the judgment with all reasonable inferences drawn in favor of

      the judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999).


[7]   Ind. Code § 31-16-8-1 governs modification of child support orders and

      provides in part:


              (a)      Provisions of an order with respect to child support . . .
                       may be modified or revoked.

              (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



      Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018    Page 6 of 20
                                (B)     the order requested to be modified or revoked
                                        was issued at least twelve (12) months before
                                        the petition requesting modification was filed.

[8]   Indiana Child Support Guideline 3A(1) provides in part that “weekly gross

      income” is defined “as actual weekly gross income of the parent if employed to

      full capacity, potential income if unemployed or underemployed, and imputed

      income based upon ‘in-kind’ benefits” and that “[w]eekly gross income of each

      parent includes income from any source, except as excluded below, and

      includes, but is not limited to, income from salaries, wages, commissions,

      bonuses, overtime, partnership distributions, [and] dividends . . . .” Indiana

      Child Support Guideline 3A(2) provides that weekly gross income “from

      self-employment, operation of a business, rent, and royalties is defined as gross

      receipts minus ordinary and necessary expenses,” that “[i]n general, these types

      of income and expenses from self-employment or operation of a business

      should be carefully reviewed to restrict the deductions to reasonable

      out-of-pocket expenditures necessary to produce income,” and that weekly

      gross income “from self-employment may differ from a determination of

      business income for tax purposes.”


[9]   Father maintains the trial court erred in failing to include Mother’s potential

      income in its determination of her weekly gross income and in its child support

      obligation worksheet, and Mother maintains the court erred in finding that she

      was voluntarily underemployed and in failing to include Father’s overtime

      income in his weekly gross income. Also, the Neighborhood Christian Legal

      Clinic, as amicus curiae, points to the language of the Commentary to Guideline
      Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018    Page 7 of 20
       3F2 and argues that in this case it would be terribly unjust to award child

       support payments and alter arrearages to the non-custodial, underemployed

       parent, that it should be presumed that the custodial parent is meeting his child

       support obligation by paying the direct expenditures on behalf of the child, that

       no child support order should be entered against Father, and that, if the

       mathematical computation of Mother’s potential income is corrected as

       requested by Father, this issue will be resolved in this case.


                1.       Mother’s Weekly Gross Income


[10]   Father argues that the trial court made a computational error when it entered

       Mother’s income onto its child support obligation worksheet. In particular,

       Father argues the court found that Mother’s income should be imputed on a

       full-time basis but then erroneously entered Mother’s actual part-time weekly

       income on its worksheet. He states that, “[t]o determine what [Mother’s]

       income would be if she was not voluntarily underemployed, one needs to

       determine her hourly rate by dividing $450.79 by 19.1 hours which equals

       $23.60 an hour,” Mother’s “hourly rate of $23.60 is then multiplied by 40

       hours,” and Mother’s “imputed full time income is $944.00 a week.”

       Appellant’s Brief at 7-8.




       2
        Subsection (1) of the Commentary to Guideline 3F states in part that “[c]ustodial parents are presumed to
       be meeting their obligations by direct expenditures on behalf of the child, so a support order is not entered
       against the custodial parent.”

       Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018                        Page 8 of 20
[11]   Mother responds that, “[w]ithout conceding that [she] is underemployed, the

       court did make a computational error when entering what it intended to be

       [her] imputed full time potential income onto the child support obligation

       worksheet.” Appellee’s Brief at 11. Mother argues on cross-appeal, however,

       that the court erroneously found that she was voluntarily underemployed. In

       support of her position, Mother argues that there are times when she has “dead

       space” during her workday as a self-employed cosmetologist, that her work

       schedule has changed because she had a baby, that her business has never been

       such that she would be at work forty hours a week and had business for all forty

       hours, and that, although she does not report the cash money she receives, she

       is paid less than one thousand dollars per year in cash. Id. at 12. In response to

       Mother’s argument that she is not voluntarily underemployed, Father maintains

       that Mother has falsely claimed she works fewer hours in order to care for her

       newborn child as that child was not born until August 2016 and she voluntarily

       worked very few hours before the child was born. He also argues that Mother

       admits to under-reporting her income.


[12]   Indiana Child Support Guideline 3A(1) states that a parent’s weekly gross

       income includes potential income if the parent is underemployed and that

       weekly gross income includes income from wages, commissions, and bonuses,

       and Indiana Child Support Guideline 3A(2) states that weekly gross income

       from self-employment or operation of a business is defined as gross receipts

       minus ordinary and necessary expenses.




       Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018   Page 9 of 20
[13]   With respect to potential income, Indiana Child Support Guideline 3A(3)

       provides that, if a court finds a parent is voluntarily unemployed or

       underemployed without just cause, it may calculate support based on the

       parent’s potential income and that 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. The Commentary to

       Guideline 3A states that “[o]bviously, a great deal of discretion will have to be

       used in this determination,” that one purpose of potential income is to

       discourage a parent from taking a lower paying job to avoid the payment of

       significant support, and that another purpose is to fairly allocate the support

       obligation when one parent remarries and, because of the income of the new

       spouse, chooses not to be employed. Subsection 2(c) of Commentary to

       Guideline 3A.


[14]   We observe that the trial court specifically found that Mother is voluntarily

       underemployed and that it would determine her income on a full-time rather

       than a part-time basis. Nevertheless, the court found that Mother’s weekly

       gross income was $450.79 per week and adopted a child support obligation

       worksheet in which it entered that amount for Mother’s weekly gross income,

       and it appears that the figure of $450.79 per week represents Mother’s actual




       Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018   Page 10 of 20
       weekly gross income based upon her earnings from her cosmetology business in

       2016 and does not include an amount attributable to her potential income. 3


[15]   The record further reveals that Mother testified at the April 28, 2017 hearing

       that she is a self-employed cosmetologist, has remarried, and had a child during

       the previous August. She indicated that her current husband is a barber, she

       has been a cosmetologist for twelve years, she worked at Uptown Style for ten

       years, and that her income fluctuates quite a bit. Mother testified that she

       currently works on Mondays, Wednesdays, and Fridays, that her hours vary

       from day to day but she normally works at least eight hours on those three days,

       and that, before August of 2016 when she had another child, her regular

       schedule was Monday through Friday with varying hours. 4 She indicated she is

       able to work on two people at a time and those appointments may overlap and

       that there are also times when she was “going to have dead space” in the day as

       well. Transcript Volume II at 37. She further indicated that her business has

       never been such that she would be at work for forty hours a week and had

       business as a result of all forty hours. When asked why she was not working

       more now, Mother indicated that it is more cost beneficial for her to stay home



       3
         Schedule C of Mother’s 2016 federal tax return indicates that her business had a net profit of $23,441, and
       that figure divided by fifty-two weeks equals $450.79 per week.
       4
         Father states that Mother works 19.1 hours, and Mother states there are times she works as little as 19.1
       hours per week and there are times she works 23 or 24 hours a week. When asked, in reference to one of the
       documents of her business, “when we look at those schedules and the dates that you held appointments, . . .
       there are a lot of which you’re only working about 19.1 hours a week,” Mother replied “[i]t’s actually a little
       more than that,” and when asked how much more, she answered “well, Monday, Wednesday, Friday,
       currently. Um, eight hours Monday, eight hours Wednesday, that’s sixteen hours. And then another seven,
       eight hours maybe on Friday. So, that would put me over nineteen.” Transcript Volume II at 37.

       Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018                       Page 11 of 20
       two days a week for childcare expenses. Mother also indicated that in her best

       judgment she was paid less than one thousand dollars a year in cash for services

       or tips, that she did not report or did not always report the cash as income and

       did not keep very good track of the cash she received, and that she reports the

       tips she receives when customers pay using credit cards.


[16]   The trial court admitted into evidence certain financial and appointment

       records from the office of Uptown Style, including several schedules showing

       Mother’s receipts by service for 2015, the first nine months of 2016, and the

       period of October 1, 2016, through January 17, 2017. The documents in the

       record also include appointment summary reports for Mother, one covering

       2015, one covering the first nine months of 2016, and one covering the period

       of October 1, 2016 through January 17, 2017, each of which included a

       schedule of her appointments by customer name, date, time, and service

       provided. The documents also include a schedule of transactions for Mother

       showing the transaction amounts by date for the periods of 2015 and the first

       nine months of 2016. The court also admitted Mother’s 2015 and 2016 federal

       tax returns. Schedule C of Mother’s 2015 federal tax return indicates that her

       business had gross receipts or sales and gross income of $36,873, total expenses

       of $18,146, and a net profit of $18,727. Schedule C of Mother’s 2016 federal

       tax return indicates that her business had gross receipts or sales of $36,577,

       gross income of $32,115, total expenses of $8,674, and a net profit of $23,441.


[17]   Based upon the record, including Mother’s testimony and business records, we

       cannot say that the record contains no facts to support the trial court’s finding

       Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018   Page 12 of 20
       that Mother is voluntarily underemployed either directly or by inference and

       thus do not disturb that finding. However, we decline to make a factual

       determination regarding the extent to which Mother is voluntarily

       underemployed and the potential income which should be attributed to her

       weekly gross income for purposes of calculating support. The trial court, on

       remand, should enter an amount for Mother’s weekly gross income which

       includes an amount attributable to her potential income based upon the

       testimony and documentary evidence.


               2.       Father’s Weekly Gross Income


[18]   Mother argues on cross-appeal that the court erred in reducing Father’s weekly

       gross income because Father earned overtime income. She argues that Father

       was on call every three weeks but would soon be on call every four weeks, that

       he is required to work a minimum of twenty percent call-outs for overtime, and

       that about half of Father’s overtime compensation is mandatory. She also

       argues that the decision to exclude overtime income centers around the

       dependability of such income. In response, Father points to his testimony that

       his overtime would be reduced because a new lineman for his employer would

       start in June of 2017 which would reduce the amount of his available overtime.

       He also argues that any overtime worked is used to pay family financial

       obligations and bills.


[19]   Indiana Child Support Guideline 3A(1) states that weekly gross income

       includes salaries, wages, bonuses, and overtime. With respect to overtime and


       Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018   Page 13 of 20
       irregular income, the Commentary to Guideline 3A provides that “[t]here are

       numerous forms of income that are irregular or nonguaranteed, which cause

       difficulty in accurately determining the gross income of a party” and that

       examples include “[o]vertime, commissions, bonuses, periodic partnership

       distributions, [and] voluntary extra work and extra hours.” Subsection 2(b) to

       Commentary to Guideline 3A. It further provides that “[e]ach of the above

       items is sensitive to downturns in the economy,” that “[t]he fact that overtime,

       for example, has been consistent for three (3) years does not guarantee that it

       will continue in a poor economy,” that “it is not the intent of the Guidelines to

       require a party who has worked sixty (60) hour weeks to continue doing so

       indefinitely just to meet a support obligation that is based on that higher level of

       earnings,” and that “[c]are should be taken to set support based on dependable

       income, while at the same time providing children with the support to which

       they are entitled.” Id. The Commentary also provides that, “[w]hen the court

       determines that it is appropriate to include irregular income, an equitable

       method of treating such income may be to require the obligor to pay a fixed

       percentage of overtime, bonuses, etc., in child support on a periodic but

       predetermined basis (weekly, bi-weekly, monthly, quarterly) rather than by the

       process of determining the average of the irregular income by past history and

       including it in the obligor’s gross income calculation.”


[20]   The trial court found that Father works large amounts of overtime. Indiana

       Child Support Guideline 3A is clear that weekly gross income includes income

       from overtime. The Commentary “indicates the underlying philosophy with


       Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018   Page 14 of 20
       respect to this type of income when it states, ‘[c]are should be taken to set

       support based upon dependable income, while at the same time providing

       children with the support to which they are entitled.’” Thompson v. Thompson,

       696 N.E.2d 80, 83 (Ind. Ct. App. 1998) (citing Subsection 2(b) to Commentary

       to Guideline 3A). From the discussion in the Commentary, “it is clear that the

       decision to exclude overtime or bonus income centers around the dependability

       of such income” and “[i]t is also clear that if the income is dependable, it should

       not be excluded without proper consideration.” Id. “The thrust of the

       commentary and related cases is that the trial court’s discretion in excluding

       overtime . . . income is grounded in a determination that the income is not

       dependable or would place a hardship on a parent to maintain.” Id. at 84. In

       addition to articulating its reasons for excluding this type of income, the trial

       court’s reasoning must indicate that its determination was made in light of these

       principles. Id.


[21]   The record reveals that Father’s statement of earnings for the pay period ending

       December 17, 2016, indicates that he had year-to-date overtime of 328 hours

       and year-to-date overtime pay of $19,633.07. It further indicates that Father

       received additional earnings of $6,856.85 for “Inclement Weather” and

       $4,743.87 for “Doubletime Pay.” Petitioner’s Exhibit 2. Father’s federal

       income tax return for 2015 indicated his wages for that year were $98,302.

       Father testified at the April 28, 2017 hearing that he had worked as a lineman

       for his employer for fifteen years. With respect to overtime, he testified “we are

       to carry a twenty percent call out, um, minimum for every time and then, uh,


       Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018   Page 15 of 20
       we go on on call every, uh, right now, every three weeks soon to be every four

       weeks.” Transcript Volume II at 12-13. He testified: “I’m on call every three

       weeks soon to be every four weeks starting in June.” Id. at 13. When asked “is

       this mandatory, that twenty percent,” Father answered affirmatively. Id. He

       testified that only journeymen can take on call, in June an apprentice would

       become a journeyman and be placed on the on call rotation, and that would

       reduce his overtime. He indicated that he had not been working all of the

       overtime he could work. When asked to estimate how much of his overtime

       was mandatory in 2015, Father indicated “I’d say maybe close to half.” Id. at

       16. Father also indicated that he believed he would receive a two percent raise

       in May.


[22]   The trial court’s decision in this case does not show that it considered the

       dependability of Father’s overtime and other additional income. Based upon

       the record, including Father’s previous overtime earnings and his testimony that

       at least a portion of his overtime is and will continue to be mandatory, we

       conclude that the trial court’s finding that all of the overtime and additional

       income which Father may earn should be excluded from his weekly gross

       income is clearly erroneous. We reverse the trial court’s exclusion of all of

       Father’s overtime and additional income and remand with instructions to

       include Father’s overtime and additional income, and only to the extent the

       trial court determines the income is dependable based upon the evidence, in his

       weekly gross income. See Thompson, 696 N.E.2d at 84 (holding that the trial

       court’s decision did not indicate that it considered the dependability of the


       Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018   Page 16 of 20
       husband’s overtime and bonus income, reversing the exclusion of the additional

       income, and remanding for reconsideration of whether the overtime and bonus

       income should be excluded from his weekly gross income).


[23]   In summary, we remand with instructions for the trial court to evaluate the

       evidence presented, without the necessity of holding another hearing, to

       calculate Mother’s weekly gross income including her potential income, to

       calculate Father’s weekly gross income including his dependable overtime and

       additional income, to accordingly recalculate the parties’ child support

       obligations including their obligations for uninsured health care expenses and

       enter a modification of support if warranted pursuant to Ind. Code § 31-16-8-1.

       The court is also to determine the amount of any credit for any overpayment

       and the current amount that Mother or Father, as the case may be, owes the

       other party, all consistent with this opinion.


       B.      Contempt Finding


[24]   Mother asserts that the trial court erred in finding her in contempt. She argues

       that, although she was in arrears in her support payments by $4,151 as of April

       12, 2016, the trial court offset her arrearage and that thus finding her in

       contempt for nonpayment would be punitive. Father responds that Mother’s

       arrearage reflects non-payment of court-ordered support for 79.82 weeks.


[25]   Ind. Code § 34-47-3-1 provides in part that “[a] person who is guilty of any

       willful disobedience of any process, or any order lawfully issued: (1) by any

       court of record . . . is guilty of an indirect contempt of the court that issued the

       Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018   Page 17 of 20
       process or order.” Contempt is a remedy available for failure to pay support

       only upon a finding that a delinquency in support was the result of a willful

       failure by the parent to comply with the support order and that the parent had

       the financial ability to comply. Moore v. Liggins, 685 N.E.2d 57, 64 (Ind. Ct.

       App. 1997). Once the person seeking contempt establishes a support obligation

       and a delinquency in the obligation, then the burden shifts to the person

       charged with contempt to prove that the failure to meet the support obligation

       was not willful or otherwise excused. Id. at 64-65.


[26]   The trial court entered an order on August 30, 2010, which ordered Mother to

       pay child support of fifty-two dollars per week. In its June 5, 2017 order, the

       court stated that Mother’s arrearage as of April 14, 2016, was either $4,151 or

       $3,571.5 The court further found that Mother was not paying child support

       when due regularly and consistently and that she did not provide a reason.

       Mother testified at the April 28, 2017 hearing that she had not paid child

       support on a regular basis, and she states in her appellee’s brief that, when she

       filed her motion to modify support on April 12, 2016, her arrearage was $4,151.

       Father presented a payment history produced by the Wabash Circuit/Superior

       Court Clerk showing Mother’s support payments from 2010 through 2017, and

       he presented a summary worksheet of an arrearage calculation over time from



       5
        We note that, in its June 5, 2017 order, the trial court stated in paragraph 5 that Mother’s arrearage as of
       April 14, 2016 was $4,151 and in paragraph 13 that as of April 14, 2016, she was $3,571 in arrears. The trial
       court should clarify on remand the amount of Mother’s arrearage and amount of any credit against Mother’s
       arrearage after entering findings regarding the parties’ incomes and determining any credit for support
       payments made.

       Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018                     Page 18 of 20
       2011 until 2017 which was prepared with his counsel’s assistance. The

       evidence also reveals that Mother has been a cosmetologist for twelve years, has

       worked at Uptown Style for ten years, and prior to August of 2016, worked five

       days a week. Mother did not pay her weekly child support obligation as

       ordered by the court, accumulated a significant arrearage, and did not argue or

       establish that she did not have the financial ability to comply with the court’s

       support order.6 We do not disturb the trial court’s contempt finding.


       C.       Attorney Fees


[27]   Mother also asserts the trial court erred in denying her request for attorney fees.

       A trial court may periodically order a party to a child support proceeding to pay

       a reasonable amount for attorney fees. See Ind. Code § 31-16-11-1. In assessing

       attorney fees, the court may consider such factors as the resources of the parties,

       the relative earning ability of the parties, and other factors that bear on the

       reasonableness of the award. McGuire v. McGuire, 880 N.E.2d 297, 303 (Ind. Ct.

       App. 2008). Under Ind. Code § 31-16-11-1, a trial court has broad discretion to

       impose attorney’s fees on either parent. Thompson v. Thompson, 868 N.E.2d



       6
         Mother also argues she can do nothing to purge herself of any contempt. The Indiana Supreme Court has
       stated that the requirement that a party have the opportunity to purge itself of contempt has typically only
       applied to cases where the trial court has ordered jail time to coerce action by the contemnor. Reynolds v.
       Reynolds, 64 N.E.3d 829, 835 (Ind. 2016). In Reynolds, the trial court found the father in contempt for failing
       to provide tax documentation to the mother as ordered. Id. at 831. On appeal, observed that the father was
       not ordered to serve any jail time, did not make any showing as to why he should be allowed to purge the
       contempt, and could have produced or permitted inspection of the tax documentation prior to the parties
       appearing in court and failed to do so, and the Court held that it was not necessary for the trial court to
       outline ways in which the father may be purged of contempt. Id. at 836. The trial court here was not
       required, under the circumstances, to outline ways in which Mother may be purged of contempt for failure to
       pay a significant amount of child support as ordered over a lengthy period of time.

       Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018                      Page 19 of 20
       862, 870 (Ind. Ct. App. 2007). We may reverse an order for the payment of

       attorney’s fees only when the award is clearly against the logic and effect of the

       facts and circumstances before the court. Id. The court may also consider any

       misconduct on the part of either of the parties that creates additional legal

       expenses not otherwise anticipated. Id.


[28]   The trial court here found that the parties should pay their own attorney fees

       and pointed to Mother’s contempt of court and the disparity of the parties’

       incomes. Based upon the record, including the fact Mother did not pay court-

       ordered support for many weeks and accumulated a significant arrearage, we

       cannot conclude that the trial court’s decision not to award attorney fees to

       Mother was clearly against the logic and effect of the facts and circumstances

       before it.


                                                    Conclusion

[29]   For the foregoing reasons, we affirm the trial court’s contempt finding and

       denial of Mother’s request for attorney fees, and we reverse and remand for a

       determination of the weekly gross incomes of Father and Mother and for entry

       of an amended weekly child support obligation and determination of the

       amount owed by either party based upon the evidence consistent with this

       decision.


[30]   Affirmed in part, reversed in part, and remanded.


[31]   Baker, J., and Riley, J., concur.



       Court of Appeals of Indiana | Opinion 85A02-1706-DR-1503 | January 18, 2018   Page 20 of 20
