Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                  Apr 09 2013, 8:47 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                     ATTORNEYS FOR APPELLEE:

NORMAN L. BURGGRAF, JR.                                     MARK D. BOVERI
Burggraf Law Office, P.C.                                   CHARLES P. RICE
Elkhart, Indiana                                            Boveri Murphy Rice, LLP
                                                            South Bend, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

TORI R. DRIVER,                                      )
                                                     )
       Appellant,                                    )
                                                     )
               vs.                                   )     No. 20A04-1208-DR-437
                                                     )
TODD W.A. DRIVER,                                    )
                                                     )
       Appellee.                                     )


                     APPEAL FROM THE ELKHART SUPERIOR COURT
                          The Honorable Stephen R. Bowers, Judge
                              Cause No. 20D02-0707-DR-139


                                           April 9, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                       Case Summary

       Tori Driver (“Mother”) appeals the trial court’s modification of child support, raising

for our review the sole issue of whether the trial court abused its discretion by omitting from

Todd Driver’s (“Father”) weekly gross income certain of his bonus income.

       We reverse and remand.

                               Facts and Procedural History

       Mother and Father divorced on September 17, 2008, and the divorce decree ratified a

settlement agreement between them. Pursuant to the divorce decree, Mother and Father share

custody of their three minor children equally, and starting May 9, 2008, Father’s child

support payments were to be $421 per month. (App. at 12-13, 15.) Father also was to be

“solely responsible for paying all of the children’s ‘controlled’ expenses, defined as expenses

for clothing, education, school books and supplies, out-of-pocket health care according to the

6% rule as stated [earlier in the decree], personal care items, and reading materials.” (App. at

15.) Father’s income for purposes of calculating his child support obligation was to include,

in relevant part: “(1) his salary in the year [in] which child support is being calculated; [and]

(2) all bonus[es] for the year previous to the year for which child support is being calculated,

which are received in the year for which child support is being calculated[.]” (App. at 15.)

       On October 31, 2011, Mother filed a verified petition to modify child support, alleging

“that the income of the parties has changed significantly since the Decree of Dissolution was

entered and that the application of the Indiana Child Support Guidelines to the party’s current

incomes would result in an increase in . . . [Father’s] support obligation of more than twenty


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[percent] (20%)[.]” (App. at 41-42.) On November 30, 2011, Father filed a motion for rule

to show cause alleging denial of parenting time, and a verified petition to modify parenting

time. (App. at 44-47.) On January 19, 2012, the trial court held an evidentiary hearing. At

the request of the court, both parties submitted corrected Child Support Obligation

Worksheets the next day.

       On July 30, 2012, the trial court entered its order modifying child support and denying

both of Father’s motions, stating in relevant part:

       The Decree of Dissolution[] . . . does not contemplate a departure from the
       Guidelines. But it does require that [Father]’s income be calculated in a
       particular manner. Additionally, the Decree requires [Father] to pay all
       controlled expenses. . . . The task for the Court is to calculate child support in a
       manner consistent with the Guidelines, while complying with the terms of the
       Decree.

       The Court finds . . . [Father]’s gross income is $6,452.31 per week. The Court
       finds . . . [Mother]’s gross income is $283.00 per week.

       ...

       Based upon the foregoing findings and analysis, the Court [m]odifies . . .
       [Father]’s child support obligation to $483.00 per week[.]

(App. at 54-55.)

       Mother now appeals the amount of the trial court’s child support modification,

contending that the trial court erred by omitting from the child support calculation certain of

Father’s bonus income.

                                  Discussion and Decision

                                      Standard of Review

       A trial court’s modification of child support will be reversed only for an abuse of


                                                3
discretion, that is, when the trial court’s decision is clearly against the logic and effect of the

facts and circumstances. Burke v. Burke, 809 N.E.2d 896, 898 (Ind. Ct. App. 2004). Where,

as here, the trial court entered findings of fact and conclusions thereon sua sponte, our

standard of review is well settled:

       When the trial court enters findings sua sponte, the specific findings control
       only as to the issues they cover, while a general judgment standard applies to
       any issue upon which the court has not found. Brinkmann v. Brinkmann, 772
       N.E.2d 441, 444 (Ind. Ct. App. 2002). The specific findings will not be set
       aside unless they are clearly erroneous, and we will affirm the general
       judgment on any legal theory supported by the evidence. Hanson v. Spolnik,
       685 N.E.2d 71, 76 (Ind. Ct. App. 1997), trans. denied. A finding is clearly
       erroneous when there are no facts or inferences drawn therefrom that support
       it. Id. at 76–77. In reviewing the trial court's findings, we neither reweigh the
       evidence nor judge the credibility of the witnesses. Id. at 77. Rather, we
       consider only the evidence and reasonable inferences drawn therefrom that
       support the findings. Id.

Julie C. v. Andrew C., 924 N.E.2d 1249, 1255–56 (Ind. Ct. App. 2010). We review the trial

court's legal conclusions de novo. Mansfield v. McShurley, 911 N.E.2d 581, 589 (Ind. Ct.

App. 2009).

                                            Analysis

       Mother argues that the trial court abused its discretion when it failed to include in

Father’s 2011 weekly gross income two bonuses totaling $310,000, which he earned and

received in 2011. Father argues that the divorce decree provided for the exclusion of bonuses

earned and paid in the same year and, thus, that the trial court correctly excluded the two

bonuses from his weekly gross income.

       The Indiana Child Support Guidelines define the “weekly gross income” of each

parent, in relevant part, as “income of from any source, . . . [including] income from salaries,

                                                4
wages, commissions, [and] bonuses[.]” Ind. Child Support Guideline 3(A)(1). The trial

court may exclude bonus income from a child support calculation, but it must articulate its

reasons for doing so. Thompson v. Thompson, 696 N.E.2d 80, 84 (Ind. Ct. App. 1998). For

example, a trial court may exclude bonus income from a child support calculation upon

determining that the income is not dependable, or would place a hardship on the parent to

maintain. Id.

       However, the exclusion of bonus pay from a parent’s “weekly gross income is not

justified by the mere fact that the parties previously agreed to such an arrangement.” Id. at

83. “[T]he right to child support lies exclusively with the child, and a parent merely holds

child support payments in trust for the benefit of the child.” Fields v. Fields, 749 N.E.2d 100,

105 (Ind. Ct. App. 2001), trans. denied. Thus, the parent who is to receive child support has

no right to contract away the child’s support by agreement. Straub v. B.M.T. by Father, 645

N.E.2d 597, 599-600 (Ind. 1994).

       Here, the trial court found that the divorce decree, while not contemplating a departure

from the Child Support Guidelines, “does expressly require that [Father’s] income be

calculated in a particular manner.” (App. at 54.) The court then concluded that Father’s

weekly gross income for 2011 equaled $6,452.31. (App. at 55.) However, the record

indicates that Father’s weekly gross income for 2011—including his salary, one bonus earned

in 2010 but paid in 2011, two bonuses earned and paid in 2011, a car allowance, and a health

insurance allowance—equaled $16,613. (Tr. at 6-7, 11-12, 19; Wife’s Ex. 1.) Having made

no determination as to whether Father’s bonus income is dependable, or whether maintaining


                                               5
it would place a hardship on Father, the trial court abused its discretion when it deviated from

the Child Support Guidelines with respect to the manner in which Father’s income is

calculated.

                                         Conclusion

       The trial court’s exclusion of two bonuses from Father’s weekly gross income was an

abuse of discretion.

       We reverse and remand for proceedings not inconsistent with this Opinion.

NAJAM, J., and BARNES, J., concur.




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