MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                           Feb 17 2017, 8:35 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Mark R. McKinney                                          Ralph E. Dowling
McKinney & Malapit, P.C.                                  Muncie, Indiana
Muncie, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Showalter,                                          February 17, 2017
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A02-1608-JP-1849
        v.                                                Appeal from the Delaware Circuit
                                                          Court
Tanya Ray,                                                The Honorable Linda Ralu Wolf,
Appellee-Petitioner.                                      Judge
                                                          Trial Court Cause No.
                                                          18C03-1601-JP-2



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017     Page 1 of 15
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, James Showalter (Showalter), appeals the trial court’s

      modification of child support and award of attorney fees to Appellee-Petitioner,

      Tanya Ray (Ray).


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                   ISSUES
[3]   Showalter raises three issues which we consolidate and restate as:


          (1) Whether the trial court abused its discretion in calculating the modified

               child support; and

          (2) Whether the trial court abused its discretion in awarding attorney fees.


                      FACTS AND PROCEDURAL HISTORY
[4]   Showalter and Ray were in a brief relationship in late 2009 and early 2010, out

      of which one child, I.S. (Child), was born on October 3, 2010. On March 30,

      2011, an order on paternity was issued, which established Showalter’s child

      support obligation in the amount of $42 per week and awarded him parenting

      time with the Child in accordance with the Indiana Parenting Time Guidelines.

      Because he had not exercised parenting time with the Child for nearly four

      years, Showalter filed a verified petition to establish parenting time on

      December 15, 2015, requesting a modified visitation schedule with phased-in

      visits in an attempt to create a bond with the Child. On May 2, 2016, Ray filed




      Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017   Page 2 of 15
      a petition to modify child support. Four days later, on May 6, 2016, the trial

      court conducted a hearing on all pending petitions.


[5]   During the hearing, Showalter testified that he is employed, making $13 an

      hour for a forty-hour work week, with overtime paid at $19.50 per hour. His

      2015 tax return reflected a gross income of $46,574. He clarified that he did not

      expect to make a similar gross income in 2016 because his income in 2015 was

      due to record snow and a premium which he had been paid for working 24-

      hour shifts in January. He explained that he had already had 37 days off in a

      timespan of four months in 2016, compared to the 21 days off in 2015.

      However, he assured the trial court that he “will make forty-two thousand

      (42,000) this year. I don’t care how many days I have to work.” (Transcript p.

      55). He was “going to give it [his] all but [he didn’t] know if [he’ll] be able to

      get it back up [he’]s pretty far behind[.]” (Tr. p. 55). He also added that “[b]ut

      on the good side of it [he] was promised that here in the next three (3) weeks

      [he] go[es] for [his] CDL on the good side of it [he] should be able to go from

      thirteen (13) to fifteen ($15.00) an hour [] that if [he] passed [his] CDL he’ll

      [get] a raise.” (Tr. p. 56). He also testified that he had a prior born child, who

      lives with the child’s mother and for whom he pays child support of $65 per

      week. He was “current with no arrears.” (Tr. p. 50). He does not carry health

      insurance on either of the children. In addition, Showalter conceded to the trial

      court that he was subject to a court-ordered restitution order in the amount of

      $300 per month as a result of a theft conviction.




      Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017   Page 3 of 15
[6]   In turn, Ray testified that she is “a professional artist” and was currently

      working another job as well. (Tr. p. 78). Because of major back issues, she

      only made $393 in 2015. Ray had started a new position the day before the

      hearing, making $7.25 per hour for 20 to 28 hours per week. She stated that the

      Child was on a scholarship in daycare, which was a “free ride.” (Tr. p. 80).

      However, the scholarship would lapse on June 3, 2016, and then daycare cost

      would be $208 per week. Ray chose to leave the Child in daycare five days per

      week because “[i]f you leave him there three (3) days it’s a different rate but not

      much different.” (Tr. p. 81).


[7]   At the conclusion of her testimony, Ray requested attorney fees in the amount

      of $1,963. When asked to respond to the attorney fees’ request, Showalter

      initially stated, “I’d like to not respond to any of this,” but then requested the

      trial court if he could ask some questions pertaining to “the paperwork here on

      the money side.” (Tr. p. 86). Showalter then addressed the court, “If it brings

      peace in this and I can have some time to do it I’d be glad to pay him nineteen

      sixty-three (1,963) with no argument and no question.” (Tr. p. 87). The court

      then took the matter under advisement.


[8]   On May 31, 2016, the trial court issued its Order, concluding in pertinent part:


              11. Mother and Father both agree that any parenting time for
              Father with [Child] must be phased in at this time due to
              [Child’s] lack of familiarity with his Father.


              ****


      Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017   Page 4 of 15
        13. To effectuate the parenting time in stages, it is appropriate
        and necessary for [Child] to receive counselling and guidance
        through the Suzanne Gresham Center of Meridian Health
        Services in Muncie, Indiana. Court orders that Father and
        Mother participate in the counselling at the direction of the
        counsellor or therapist.


        14. Since Father voluntarily chose to forego his parenting time
        for so many years and since he is gainfully employed on a full-
        time basis, he is ordered to pay the costs associated with the
        counselling to phase in his parenting time. These costs include
        any fees imposed for the participation of [Child], Father, and
        Mother.


        15. The phasing in of parenting time shall be determined by the
        counsellor, keeping in mind what is best for [Child] and with the
        expected cooperation of both Father and Mother.


        ****


        20. There has been a substantial and continuing change of
        circumstances such that the previous order of the [c]ourt is no
        longer reasonable and the same should be modified.


        21. Father’s usual income is approximately $42,000 per year,
        including occasional overtime hours.


        22. Mother is employed part-time and [c]ourt attributes
        minimum wage to her.


        23. Pursuant to [Ray’s] Exhibit L, child care expenses for child
        support worksheet purposes is $139.37 per week paid by Mother.




Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017   Page 5 of 15
                24. Pursuant to the child support worksheet prepared by [c]ourt
                for the time period April 29, 2016 to June 3, 2016 which is
                attached hereto and made a part hereof, the weekly child support
                obligation of the Father is $120.00 since a scholarship offsets the
                cost of child care. Pursuant to the second child support
                worksheet attached hereto and made a part hereof, after June 3,
                2016 the weekly child support obligation of Father shall be $223
                due to the child care expense being reinstated.


                ****


                28. Court orders that Father pay the attorney fees of Mother in
                the sum of $1,963, [] within the next ninety (90) days.


       (Appellant’s App. Vol II, pp. 27, 28, 29).


[9]    Showalter now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION
                                          I. Modification of Child Support 1


[10]   Father contends that the trial court abused its discretion when modifying his

       child support obligation. In reviewing a trial court’s order on a request to

       modify child support, we will reverse for an abuse of discretion. Holtzleiter v.




       1
         Initially, in her appellee’s brief, Ray contends that Showalter waived all issues on appeal by stating, “I’d like
       to not respond to any of this.” (Tr. p. 86). Upon review of the record, we find otherwise. Showalter’s
       statement is a response to the trial court’s question if he had any questions for Ray. After making the
       disputed statement, Showalter nevertheless requested the trial court if he could “ask about some of the
       paperwork here on the money side.” (Tr. p. 86). In light of the issues involved and the vagueness of the
       statement, we conclude that Showalter did not waive his appeal to the trial court’s modification of child
       support.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017              Page 6 of 15
       Holtzleiter, 944 N.E.2d 502, 505 (Ind. Ct. App. 2011). An abuse of discretion

       occurs only when the decision is clearly against the logic and effect of the facts

       and the circumstances before the court, including any reasonable inferences that

       may be drawn therefrom. Id. The court has previously observed that “the

       importance of first-person observation and preventing disruption to the family

       settings justifies deference to the trial court.” Id.


[11]   Here, the trial court entered findings sua sponte. Sua sponte findings control only

       as to the issues they cover and a general judgment will control as to the issues

       upon which there are no findings. Walters v. Walters, 901 N.E.2d 508, 510 (Ind.

       Ct. App. 2009) (citing Gibbs v. Kashak, 883 N.E.2d 825, 827-28 (Ind. Ct. App.

       2008)). A general judgment entered with findings will be affirmed if it can be

       sustained on any legal theory supported by the evidence. Id. When a court has

       made special findings of fact, an appellate court reviews sufficiency of evidence

       using a two-step process. Id. First, it must determine whether the evidence

       supports the trial court’s findings of fact; second, it must determine whether

       those findings of fact support the trial court’s conclusions of law. Id. Findings

       will be set aside if they are clearly erroneous. Id. Findings are clearly erroneous

       only when the record contains no facts to support them either directly or by

       inferences. Id. A judgment is clearly erroneous of it applies the wrong legal

       standard to properly found facts. Id. In order to determine that a finding or

       conclusion is clearly erroneous, an appellate court’s review of the evidence must

       leave it with the firm conviction that a mistake has been made. Id.



       Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017   Page 7 of 15
[12]   While Showalter does not dispute Ray’s request to modify the child support per

       se, he does challenge the trial court’s calculation of his modified child support

       obligation. The Indiana Child Support Guidelines (Guidelines) aid in the

       determination of the amount of child support that should be awarded and

       provide a measure for calculating each parent’s share of the child support. In re

       Paternity of G.R.G., 829 N.E.2d 114, 118 (Ind. Ct. App. 2005). “There is a

       rebuttable presumption that the amount of the award resulting from the

       application of the Indiana Child Support Guidelines is the correct amount to be

       awarded.” Id. (citing Lea v. Lea, 691 N.E.2d 1214, 1217 (Ind. 1998)).


[13]   To determine whether a child support order complies with the child support

       guidelines, we must first know the basis for the amount awarded. Heiligenstein

       v. Matney, 691 N.E.2d 1297, 1303 (Ind. Ct. App.1998). “Such revelation could

       be accomplished either by specific findings or by incorporating a proper

       worksheet.” Id. Accordingly, since 1989, the Guidelines have required, in all

       cases in which the trial court is requested to order support, that both parties

       complete and sign, under penalty of perjury, a child support worksheet to be

       filed with the court verifying the parents’ incomes. See Ind. Child Support

       Guideline 3(B)(1); Payton v. Payton, 847 N.E.2d 251, 253 (Ind. Ct. App. 2006).

       Here, only Ray submitted a completed, but unsigned, child support worksheet.

       While neither party submitted a verified child support worksheet, the trial court

       made its own calculations based on the findings in its Order and “prepared” its

       own child support worksheet. (Appellant’s App. Vol. II, p. 28). As “the

       Guidelines are not meant to be a trap for the unwary but are intended to lead

       Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017   Page 8 of 15
       the way to a fair result in a complicated area of law,” we will review

       Showalter’s contentions based on the calculations made by the trial court.

       Holtzleiter, 944 N.E.2d at 506.


[14]   Showalter presents this court with three challenges to the trial court’s

       calculations. Specifically, he maintains that the trial court abused its discretion

       by (1) including overtime in his income calculation; (2) not including the

       support paid for a prior-born child; and (3) including non-work related child

       care costs. We will discuss each contention in turn.


                                                    1. Overtime


[15]   Showalter contends that the trial court abused its discretion in determining his

       “usual income” as “approximately $42,000 per year, including occasional

       overtime hours.” (Appellant’s App. p. 28). Focusing on the “weekly gross

       income of $808,” he claims that he “would have to work a regular forty (40)

       hour work week plus fifteen (15) hours of overtime every week for the entire

       year.” (Appellant’s Br. p. 14).


[16]   When fashioning a child support order, the trial court’s first task it to determine

       the weekly gross income of each parent. In re G.R.G., 829 N.E.2d at 118.

       “Weekly gross income” is broadly defined to include not only actual income

       from employment but also potential income and imputed income from “in-

       kind” benefits. Id. Guideline 3(A) encompasses in the definition of “gross

       income” “income from salaries, wages, . . . , bonuses, [and] overtime[.]”



       Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017   Page 9 of 15
[17]   During the hearing, Showalter testified that he makes $13 an hour for a forty-

       hour work week, with overtime paid at $19.50 per hour. Showalter also stated

       that in the next three weeks “[he] go[es] for [his] CDL on the good side of it

       [he] should be able to go from thirteen (13) to fifteen ($15.00) an hour.” (Tr. p.

       56). His 2015 tax return, submitted into evidence, reflected a gross income of

       $46,574. He clarified he did not expect to make a similar gross income in 2016

       because his income in 2015 was due to record snow and a premium he had

       been paid for working 24-hour shifts in January. He explained that he had

       already had 37 days off in a timespan of four months in 2016, compared to the

       21 days off in 2015. However, he assured the trial court that he “will make

       forty-two thousand (42,000) this year. I don’t care how many days I have to

       work.” (Tr. p. 55). He was “going to give it [his] all but [he didn’t] know if

       [he’ll] be able to get it back up [he’]s pretty far behind[.]” (Tr. p. 55).

       Therefore, because the evidence supports the trial court’s findings, which in

       turn support its conclusion, we cannot say that the trial court erred in

       calculating Showalter’s child support obligation based on a weekly gross

       income of $808. As always, should Showalter’s income hereafter diminish such

       that the child support order becomes unreasonable, he is free to petition the trial

       court to modify the same.


                                               2. Prior Born Child


[18]   The Guidelines state that to compute the weekly adjusted income, the amount

       paid to support prior born children must be taken into account, regardless

       whether this amount is established by way of a court order or actually paid

       Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017   Page 10 of 15
       without a court order. See Child Supp.G. 3(C)(2) & (3). In this regard,

       Showalter maintains that the trial court erred by not including his child support

       obligation for a prior born child.


[19]   The evidence reflects that during trial, Showalter testified that he has two

       children: Child and an older daughter, born out of a different relationship.

       Showalter told the trial court that he “pa[id] sixty-five dollars ($65.00) per week

       and I’m current with no arrears.” (Tr. p. 50). Later during the hearing, when

       discussing the calculations to be made on the worksheet, Showalter again

       reiterated his support obligation towards the prior born child. The trial court

       responded, “Well, and that is part of the calculation through the child support

       worksheet I would [make] and how much and you did testify earlier about how

       much you’re ordered to pay and I did write it down.” (Tr. p. 87). Despite this

       assurance, the trial court did not include this obligation in the worksheet.


[20]   As the evidence at the hearing indicates the existence of a child support

       obligation for a prior born child, and the trial court did not include this in its

       calculation nor did the trial court enter findings explaining its reason for

       deviating from the Guidelines, we conclude that the trial court erred and we

       remand for clarification of its award or re-calculation of Showalter’s child

       support obligation. See Dye v. Young, 655 N.E.2d 549, 551 (Ind. Ct. App. 1995).

       (“If the court deviated from the guidelines, it should enter findings to provide a

       worksheet demonstrating its calculations, as well as written findings setting

       forth the factual basis for the deviation.”).



       Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017   Page 11 of 15
                                             3. Child Care Expenses


[21]   The trial court issued two worksheets—the first, effective from April 29, 2016,

       until June 3, 2016, and the second, effective after June 3, 2016—to take into

       account Ray’s changed situation with respect to her child care expenses. Both

       worksheets include the same basic numbers, with exception of the child care

       expenses. Showalter now challenges both worksheets’ computations, claiming

       that none of these child-care expenses were work-related.


[22]   Child Support Guideline 3(E) provides that “[c]hild care costs incurred due to

       employment or job search of both parent(s) should be added to the basic

       obligation. It includes the separate cost of a sitter, day care, or like care of a

       child or children while the parent works or actively seeks employment.” The

       commentary to the Guidelines indicates that work-related child care expenses

       are added to the basic support obligation in arriving at the total child support

       obligation. Ind. Child Supp.G. 3(E), Cmt. 1.


[23]   With respect to the worksheet effective until June 3, 2016, the trial court

       determined Showalter’s portion of the child care expenses to amount to $0 per

       week. The record indicates that prior to June 3, 2016, the Child was on a

       scholarship in daycare, which was a “free ride.” (Tr. p. 80). Accordingly, no

       daycare expenses—regardless of whether they were work-related—existed

       before June 3, 2016.


[24]   With respect to the worksheet effective from June 3, 2016, the trial court

       included Ray’s child care expenses of $139.37 per week in its calculation of

       Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017   Page 12 of 15
       Showalter’s child support obligation. Ray testified that she had just started a

       new position the day before the hearing, working 20 to 28 hours per week. She

       explained that after the day care scholarship lapsed on June 3, 2016, she would

       pay $208 per week, or $187 per week if pre-paid. She clarified that these

       numbers represented a fulltime week in daycare because “if you leave him there

       three (3) days it’s a different rate but not much different.” (Tr. p. 87). Ray’s

       unverified worksheet reflects a child care expense of $139.37; however, no

       evidence exists establishing whether this number represents a cost for fulltime

       or part-time child care expense. Similarly, there is no testimony or evidence in

       the record that Ray used the day care because of “employment or job search.”

       Child Supp. G. 3(E). Even if evidence would have been presented for the

       necessity of the child care expense, there is no support that a fulltime expense is

       warranted in light of Ray’s part-time employment, assuming $139.37 represents

       fulltime child care costs. See, e.g., Ashworth v. Ehrgott, 934 N.E.2d 152, 164 (Ind.

       Ct. App. 2010). Accordingly, we reverse the trial court’s calculation of the

       child care expenses with respect to the second worksheet and remand with

       instruction to clarify the calculation or to re-calculate Showalter’s child support

       obligation. See Dye, 655 N.E.2d at 551.


                                                 II. Attorney Fees


[25]   Next, Showalter contends that the trial court abused its discretion in ordering

       him to pay Ray’s attorney fees. Indiana Code section 31-15-10-1(a) grants a

       trial court broad discretion to impose attorney fees on either party in actions for

       child support. Reversal is warranted only when the trial court’s award is clearly

       Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017   Page 13 of 15
       against the logic and effect of the facts and circumstances before the court.

       Schacht v. Schacht, 892 N.E.2d 1271, 1280 (Ind. Ct. App. 2008). In assessing

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

       parties, the relative earning ability, and the ability to engage in gainful

       employment. Id. However, the trial court need not give reasons for its

       determination. Id.


[26]   Here, the trial court ordered Showalter to pay Ray’s attorney fees in the amount

       of $1,963. 2 When asked to respond to the attorney fees request, Showalter

       addressed the court, stating “If it brings peace in this and I can have some time

       to do it I’d be glad to pay him nineteen sixty-three (1,963) with no argument

       and no question.” (Tr. p. 87). Accordingly, as Showalter agreed to pay the

       requested attorney fees, he waived his argument for our review and cannot now

       be heard to complain.


                                                CONCLUSION
[27]   Based on the foregoing, we conclude that the trial court erred in calculating

       Showalter’s child support obligation and we reverse and remand with

       instructions regarding the calculation of the prior born child and the child care




       2
         Showalter asserts that the attorney fees also include $4,440 for pre-appeal attorney fees. However, the pre-
       appeal attorney fees are not before this court as they were awarded by the trial court on August 25, 2016, i.e.,
       ten days after the notice of appeal was filed. Accordingly, the pre-appeal attorney fees are not before this
       court.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017           Page 14 of 15
       expenses. Additionally, we conclude that Showalter waived his attorney fees

       argument for our review.


[28]   Affirmed in part, reversed in part, and remanded with instructions.


[29]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A02-1608-JP-1849 | February 17, 2017   Page 15 of 15
