MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Oct 26 2016, 9:28 am
regarded as precedent or cited before any
                                                                         CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
Joseph Leon Payne
Joseph L. Payne, P.C.
Austin, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Marriage of:                                   October 26, 2016
Cheryl Smith,                                            Court of Appeals Case No.
Appellant-Petitioner,                                    72A01-1606-DR-1248
                                                         Appeal from the Scott Superior
        v.                                               Court
                                                         The Honorable Marsha Owens
Lawrence Robinson,                                       Howser, Judge
Appellee-Respondent                                      Trial Court Cause No.
                                                         72D01-1009-DR-144



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1248 | October 26, 2016      Page 1 of 4
[1]   Cheryl Smith and Lawrence Robinson were married, but they divorced in 2011.

      On December 17, 2015, Smith filed a petition to modify custody and support,

      seeking physical custody of the parties’ son, Charles, and child support from

      Robinson. After a February 26, 2016, modification hearing, the trial court

      ordered that, as stipulated, Smith would have primary physical custody of

      Charles and that Robinson would have an equal amount of parenting time as

      Smith. At the hearing, the parties disputed several factors used to calculate

      Robinson’s child support obligation—the trial court decided to credit

      Robinson’s testimony and ordered him to pay $70 per week pursuant to his

      child support obligation worksheet calculation. The trial court also ordered

      Robinson to pay 22% of any overtime pay he might receive to Smith. Smith

      now appeals.


[2]   Smith has three arguments on appeal: (1) the trial court erred by finding that

      Charles would spend half of the overnights during the year with Robinson; (2)

      there was no evidence underlying Robinson’s child support worksheet

      calculations; and (3) the trial court erred by finding that a set of requests for

      admissions, sent from Smith to Robinson, were adequately answered.


[3]   When reviewing a child support modification order, we review the evidence

      most favorable to the judgment without reweighing the evidence or reassessing

      the credibility of witnesses. In re Marriage of Kraft, 868 N.E.2d 1181, 1185 (Ind.

      Ct. App. 2007). We will reverse only when the decision is clearly against the

      logic and effect of the facts and circumstances before the court, including any

      reasonable inferences therefrom. Id.

      Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1248 | October 26, 2016   Page 2 of 4
[4]   At the hearing, Robinson testified that, given past experiences, he expected

      Charles to reside with him for half the year. Tr. p. 21. While Smith attempted

      to persuade the trial court that Robinson earned $1021 per week, by multiplying

      his pay rate by forty hours, Robinson presented evidence and testimony that he

      averaged $854 in weekly income. Id. at 19. He explained that he cannot

      always work forty hours in a week due to a medical condition. Id.


[5]   As is apparent, there was evidence in the record to support the trial court’s

      order of $70 in weekly child support, which was premised on Charles spending

      half the year with Robinson and on Robinson earning $854 in weekly income.

      Smith’s argument to the contrary amounts to a request that we reweigh the

      evidence—a request that we deny.


[6]   We turn to Smith’s third argument. On December 23, 2015, she served a set of

      four requests for admission on Robinson, seeking admissions that Robinson

      told Charles to stop going back and forth between Smith’s and Robinson’s

      houses; that Robinson told Charles that he is not welcome to stay the night; that

      Charles has recently been living with Smith; and that Robinson removed all of

      Charles’s personal belongings from his house.


[7]   Robinson responded in early January in a detailed letter. Resp’t Ex. 1. In a

      narrative of recent events, Robinson denied each of the requested admissions

      and instead offered his side of the story.


[8]   Indiana Trial Rule 36 governs requests for admission; it requires the responding

      party to “serve[] upon the party requesting the admission a written answer or

      Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1248 | October 26, 2016   Page 3 of 4
      objection addressed to the matter, signed by the party or by his attorney.” That

      is precisely what Robinson’s letter did: it addressed each of the four requests for

      admission and was signed by Robinson. The trial court did not err by finding

      that Robinson had properly responded to Smith’s requests for admission.


[9]   The judgment of the trial court is affirmed.


      Vaidik, C.J., and Najam, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 72A01-1606-DR-1248 | October 26, 2016   Page 4 of 4
