Pursuant to Ind.Appellate Rule 65(D),                                              Oct 01 2013, 5:35 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT:                            ATTORNEY FOR APPELLEE:

JAMES R. WILLIAMS                                   HUGH R. HUNT
MATTHEW L. KELSEY                                   Sullivan, Indiana
DeFur Voran LLP
Muncie, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

SAMUEL C. BOWYER,                                   )
                                                    )
       Appellant-Respondent,                        )
                                                    )
               vs.                                  )       No. 18A02-1301-DR-88
                                                    )
KELLEY S. BOWYER,                                   )
                                                    )
       Appellee-Respondent.                         )


                     APPEAL FROM THE DELAWARE CIRCUIT COURT
                         The Honorable Thomas Cannon, Jr., Judge
                              Cause No. 18C05-1103-DR-22




                                          October 1, 2013



                 MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                        Case Summary and Issue

        Samuel C. Bowyer (“Sam”) appeals the trial court’s denial of his petition to modify

child support. Sam presents one issue on appeal: whether the trial court abused its discretion

by failing to modify his child support obligation. Concluding that the trial court did abuse its

discretion, we reverse and remand.

                                     Facts and Procedural History

        Sam and Kelley Bowyer were married in 1991 and have two children: Sarah, who

was 19 years old at the time of the dissolution, and G.B., who was 14 years old at the time of

the dissolution. In March 2011, Kelley filed a pro se petition for dissolution of marriage;

Sam was also pro se in the dissolution matter. In May 2011, the Bowyers filed a joint

petition for dissolution of marriage, a marital settlement agreement (the “Agreement”), and

various worksheets. The child support worksheet listed Sam’s weekly income as $1,885 and

Kelley’s as $885, and the recommended weekly support from Sam to Kelley was calculated

to be $175. The Agreement, however, provided that Sam would pay Kelley $250 weekly in

child support. The record indicates that Kelley was making $75,000 per year at the time of

the dissolution, but that both parties expected her to soon thereafter leave her administrative

position and return to teaching in the classroom and to consequently have a much lower

salary. Because of that expectation, Sam agreed to a higher amount of child support.1 The



        1
           Certain things regarding the parties’ salaries and the calculations used on various worksheets are
unclear. In the first worksheet, calculated at the time of the dissolution, Kelley’s weekly salary is listed as
$885, which corresponds to much less than $75,000 per year. It is unclear whether the parties used a projected
lower salary for Kelley in that worksheet and, if so, how that relates to Sam’s willingness to pay more child
support than calculated in the worksheet based on the assumption that Kelley’s salary would be reduced soon
after dissolution.

                                                      2
Agreement also provided for division of medical and college expenses. Later that same

month, May 2011, the marriage was dissolved and the Agreement was incorporated into the

dissolution. Kelley was awarded joint legal custody and primary physical custody of G.B.,

and Sam was awarded joint legal custody of G.B. and parenting time. Parenting time

amounted to three days per week for Sam and four days per week for Kelley.

       In November 2011, Sam filed a petition to modify custody, parenting time, and child

support. A hearing was held in November 2012, and during the hearing, Sam withdrew his

petition to modify custody. In December 2012, the trial court issued an order denying Sam’s

petition to modify child support and ordering Kelley to reimburse Sam for certain expenses.

The trial court found that modification was unavailable because the petition was filed less

than twelve months after the order establishing support; Sam was estopped from arguing that

support should be modified based on more than twenty percent difference from the guideline

amount because he knowingly and voluntarily entered into the Agreement; and there were no

changed circumstances so substantial and continuing as to make the agreed child support

unreasonable. This appeal followed. Additional facts will be supplied as necessary.

                                 Discussion and Decision

                                  I. Standard of Review

       In reviewing a determination of whether child support should be modified, we will

reverse the decision only for an abuse of discretion. In re Marriage of Kraft, 868 N.E.2d

1181, 1185 (Ind. Ct. App. 2007). We review the evidence most favorable to the judgment

without reweighing the evidence or reassessing the credibility of the witnesses. Id. An abuse



                                             3
of discretion occurs when the decision is clearly against the logic and effect of the facts and

circumstances before the court, including any reasonable inferences therefrom. Id.

       Where a party claims changed circumstances as the basis for a modification, we rely

on the trial court’s determination of the respective incomes of the parties, and, as always,

defer to the trial court’s judgment as to credibility. MacLafferty v. MacLafferty, 829 N.E.2d

938, 941 (Ind. 2005). However, the determination of whether the changed circumstances are

“‘so substantial and continuing’ as to render the prior child support order’s terms

‘unreasonable’ is, at minimum, a mixed question of law and fact.” Id. To the extent it is a

question of law, we review the question de novo. Id.

                           II. Bright-Line Basis for Modification

       Indiana Code section 31-16-8-1 is applicable to a request for modification of child

support, and the statute provides:

       (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
                     (B) the order requested to be modified or revoked was issued at
                     least twelve (12) months before the petition requesting
                     modification was filed.

The statute provides two possible paths for modification: 1) a bright-line basis where the

petitioner needs to show a certain filing timeline as well as a twenty percent difference


                                              4
between the ordered and calculated amount owed, and 2) a more subjective basis under

which the petitioner must show changed circumstances. Sam first argues that the trial court

wrongly concluded he was not entitled to modifications based on the bright-line rules of

subsection (b)(2).

       Subsection (b)(2) has two prongs. The trial court found that Sam had not met the first

prong regarding a twenty percent difference in amount because he knowingly agreed to pay

more than required. Sam argues that the Agreement is not a factor and the twenty percent

rule applies to him regardless of how or why the payment was ordered. We agree. Not only

does the plain language of the statute support Sam’s argument, but we also find the reasoning

in In re Marriage of Kraft, 868 N.E.2d 1181, 1187 (Ind. Ct. App. 2007) persuasive. In Kraft,

we reconsidered dicta in a previous case, Hay v. Hay, 730 N.E.2d 787, 790 (Ind. Ct. App.

2000), in which it was suggested that a father would not have been eligible for modification

due to a twenty percent difference where the father had agreed to pay support in excess of

guidelines. In Kraft, we agreed with the appellant that Hay was contrary to the clear

language of the statute as well as public policy. 868 N.E.2d at 1187. We agreed that the

policy of encouraging parties to agree would have been hampered if we adopted the dicta in

Hay because parties would be less likely to reach agreements if they were more difficult to

change later, and the added burden would only discourage parties from ever agreeing to pay

more than absolutely necessary. Id.; see also Ind. Code § 31-15-2-17 (“To promote the

amicable settlements of disputes that have arisen or may arise between the parties to a




                                             5
marriage attendant upon the dissolution of their marriage, the parties may agree [to certain

things] . . .”).

        A different panel of this court disagreed with the holding in Kraft, reasoning that Kraft

had relied on a case from our supreme court that dealt with an outdated version of the

relevant statute and that Kraft had disregarded a statement in a more recent supreme court

case. Reinhart v. Reinhart, 938 N.E.2d 788, 793 n.2 (Ind. Ct. App. 2010). However, Kraft

quoted the relevant sentence from the more recent case and so was clearly aware of it, and

Kraft’s reliance on the older case concentrated more on that case’s focus on “the language of

the statute as written.” 868 N.E.2d at 1189. We therefore find the policy and statutory

interpretation in Kraft persuasive and agree that “despite an agreement between the parents

regarding child support, the child support order may be subsequently modified.” Id. at 1188;

see also Adams v. Adams, 873 N.E.2d 1094, 1098 (Ind. Ct. App. 2007) (agreeing with Kraft

and holding that the appellant in that case “could show that he was entitled to a modification

of child support by showing either changed circumstances so substantial and continuing as to

make the terms unreasonable or a twenty percent deviation.”). The fact that Sam agreed to

pay more child support than calculated in the worksheet did not, therefore, estop him from

later seeking modification under Indiana Code section 31-16-8-1(b)(2) where the amount he

agreed to varied by more than twenty percent compared to the amount calculated in the child

support worksheet.

        Sam also argues that, although he filed his petition for modification less than twelve

months after the order was issued, he nonetheless meets this prong because the hearing was



                                                6
held more than twelve months after the order was issued. We disagree. Sam points to, and

we find, no case law supporting this interpretation of the statute. Moreover, the plain

language of the statute requires that the petition be filed at least twelve months after the order

was issued and does not reference any date related to the hearing. Sam argues that the intent

of the statute is to “ensure that modification is not being sought every few weeks and at the

instance of every $1.00 hourly pay raise or spike in electric bill, for instance” and that the

intent would be met here because by the time of the hearing nearly eighteen months had

elapsed since the order was issued. Appellant’s Brief at 10. First, we do not see how a late

hearing date would ensure that modification was not being sought too frequently or for minor

changes in a party’s financial situation. Second, because the plain language of the statute is

clear, we do not reach the issue of legislative intent. Town of Plainfield v. Town of Avon,

757 N.E.2d 705, 710 (Ind. Ct. App. 2001) (“It is only when the language of a statute is

ambiguous and unclear that we will engage in statutory construction to determine the intent

of the legislature to give effect and validity to each provision thereof. . . . Because the

applicable statutes are clear and unambiguous, we do not need to look beyond the statutes for

the legislative intent.”), trans. denied. Because both prongs of the statute are required and

Sam has failed to meet this second prong, we conclude that the trial court did not abuse its

discretion in denying his petition on the basis of this subsection.

                                 III. Changed Circumstances

       Sam next argues that, following the dissolution, there were several changes in

circumstances supporting a modification of his child support obligation under subsection



                                                7
(b)(1) of the statute. These circumstances include that G.B. began to stay with Sam

approximately seventy percent of the time; Kelley did end up taking a lower paying job, but

then ultimately returned to an administrative position at a yearly salary of $60,000; certain

medical and educational expenses were not being divided as envisioned in the Agreement;

and Sam had increased expenses and a changed financial situation.

        As for increased parenting time, the record shows that G.B. was staying with Sam

significantly more often than the Agreement contemplated at the time the petition to modify

was filed, but that parenting time began to even out after the petition was filed. By the time

of the hearing, G.B. could not remember the last time that the schedule had strayed from that

in the Agreement, with the exception of vacation time. We agree with Kelley that changes

need to be continuing in order to satisfy the statute, and here, it is clear that any changes in

parenting time were not continuing at the time of the hearing. Barnes v. Barnes, 549 N.E.2d

61, 64 (Ind. Ct. App. 1990) (“Changed circumstances sufficient to warrant modification do

not have to be permanent in nature, but only that the change is a continuing one.”), trans.

denied.

        Sam’s several financial arguments are intertwined. Sam testified to monthly expenses

including $790 for his mortgage, $66 for his property insurance, $74 for his property taxes,

$300 for Sarah’s rent, $115 for Sarah’s utilities, $107 for his and Sarah’s combined car

insurance, and $320 for gasoline, totaling approximately $1,772.2 The record indicates that


        2
          Sam’s brief puts the monthly total for the above expenses at $3,322 and notes that the total does not
include food or incidentals. It is not clear where the extra $1,550 in Sam’s total is coming from. It is possible
that as much as $1,084 of that is the monthly total of the child support for G.B., but even so, nearly $500 is
unaccounted for.

                                                       8
Sam’s monthly take-home pay is $3,942, so the above expenses, in addition to food,

incidentals, and child support payments, support Sam’s testimony that he is living at or below

his means. The record is silent, however, as to Sam’s expenses at the time of the dissolution.

Again, going back to the language of the statute, Sam is required to show changed

circumstances. He argues that these expenses are more than those at the time of the

dissolution but does not indicate what his expenses were at the time of the dissolution, so it is

impossible to say that any changes are substantial. As for medical and educational expenses

for which Sam was not been reimbursed, we find that argument to be moot at this point

because the trial court ordered Kelley to reimburse him for her portion of those expenses and

they are therefore not a continuing changed circumstance warranting modification of child

support.

       Sam also argues that in the past his income was higher because of sales of stock

options, but that those are no longer happening, resulting in a significant decrease in income.

The record indicates that at the time of dissolution, his income was in the neighborhood of

$30,000 above his base salary due to stock options. He testified that those options had not

been available for the last couple of years, and we agree that a loss of income due to lost

bonuses and the like may constitute substantial changed circumstances. Kraft, 868 N.E.2d at

1181. However, Sam also testified that he had received some income from stock options just

that year, although he could not remember how much he had sold the stocks for. He also

testified that he could potentially be eligible for a bonus in the amount of $8,000. While we

might be inclined to agree that a potential bonus of $8,000 is substantially less than the



                                               9
approximately $30,000 in additional income Sam saw in previous years, because the record

does not clearly indicate that stock sales are no longer an option for Sam, we cannot conclude

that this is a significant change from his financial situation at the time of dissolution.

       What does appear to be a substantial and continuing change from the time of

dissolution is the parties’ relative incomes. Even if we assume that Sam’s income has not

greatly changed due to lost stock options, the record is clear that both Sam and Kelley

expected Kelley’s salary to decrease from $75,000 to around $40,000, and that Sam based his

increased child support on that expectation. Kelley’s salary in fact went down even lower

than expected for some period of time, but by the hearing she was again in an administrative

position with a salary of $60,000—less than she was earning at the time of dissolution, but

more than Sam or Kelley had anticipated for her following dissolution. There was no

indication at the hearing that she did not expect this position to continue. The difference in

the parties’ situations is highlighted when we compare Sam’s child support obligations as

calculated in the child support worksheet at the time of dissolution to that calculated around

the time of the hearing. At the time of dissolution, his obligation was calculated to be $175.

By the time of the hearing, his obligation was calculated to be $52. In MacLafferty, our

supreme court indicated that the starting point in determining whether a change in income

was substantial and rendered the original payment unreasonable would be to consider

whether the change resulted in a payment difference of more than twenty percent. 829

N.E.2d at 942. Here, that benchmark has more than been met. While additional factors may

increase the disparity between Sam’s financial situation at the time of dissolution compared



                                              10
to the time of the hearing, the record is too opaque for us to include those in our calculations.

However, we conclude that the difference in salaries is a substantial and continuing change

that warrants modification of Sam’s child support obligation.

                                          Conclusion

       Concluding that Sam presented substantial changed circumstances such that the trial

court abused its discretion in denying his petition for modification of his child support

obligation, we reverse and remand for proceedings consistent with this opinion.

       Reversed and remanded.

RILEY, J., concurs.

KIRSCH, J., concurs in part and dissents in part with separate opinion.




                                               11
                              IN THE
                    COURT OF APPEALS OF INDIANA

SAMUEL C. BOWYER,                                   )
                                                    )
       Appellant-Respondent,                        )
                                                    )
              vs.                                   )       No.    18A02-1301-DR-88
                                                    )
KELLEY S. BOWYER,                                   )
                                                    )
       Appellee-Petitioner.                         )



KIRSCH, Judge, concurring in part and dissenting in part.

       I join my colleagues in holding that this matter should be reversed and remanded for a

modification of support, but I respectfully dissent from their conclusion that the trial court

did not abuse its discretion in denying the petition for modification on the basis that twelve

months had not elapsed between the time the support order was entered and the petition for

modification was filed.

       I acknowledge that the plain language of Indiana Code section 31-16-8-1(2) requires

that the petition be filed at least twelve months after the order. In this case, however, Mother

did not object or file a motion to strike the premature filing. Indeed, she took no action to

raise the issue until the hearing on the modification which was nearly eighteen months after

the prior support order had been entered—well after the expiration of the statutory twelve

month waiting period.

       On the basis of these facts, I believe the trial court should have exercised its discretion

                                               12
and deemed the petition for modification re-filed as of a date subsequent to the expiration of

the twelve month period and, hence, timely. Doing so would not have contravened the rights

of the parties or policies underlying the statutory twelve month waiting period, and it would

have avoided the delay and expense that the parties and the trial court will necessarily incur

in requiring Father to re-file his petition and conducting a subsequent proceeding based upon

the same facts and raising the identical issues.




                                             13
