      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                            Nov 19 2019, 6:52 am
      court except for the purpose of establishing                              CLERK
      the defense of res judicata, collateral                               Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT
      Heather M. Schuh-Ogle
      Columbus, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Samuel Jason Hofelich,                                  November 19, 2019
      Appellant-Petitioner,                                   Court of Appeals Case No.
                                                              19A-DR-1351
              v.                                              Appeal from the Bartholomew
                                                              Superior Court
      Kimberly Leann Hofelich,                                The Honorable James D. Worton,
      Appellee-Respondent                                     Judge
                                                              Trial Court Cause No.
                                                              03D01-1305-DR-2873



      Altice, Judge.


                                               Case Summary


[1]   Samuel J. Hofelich (Father) appeals from the modification of his child support

      obligation. He contends that the trial court abused its discretion by imputing an



      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1351 | November 19, 2019             Page 1 of 8
      inappropriately low wage to Kimberly L. Hofelich (Mother) in calculating his

      modified support obligation.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Mother and Father have two children together, one of whom is still a minor

      born in July 2004 (Child). Pursuant to a dissolution decree entered on January

      25, 2016, Father was ordered to pay weekly child support in the amount of

      $116.48.


[4]   About two and a half years later, on August 8, 2018, Mother filed a petition for

      modification of child support. She alleged a substantial and continuing change

      in circumstances due to “ongoing health issues” for herself and Child and her

      termination from full-time employment in February 2018. Appendix at 31.


[5]   The trial court held a brief, informal hearing regarding the petition on

      December 3, 2018, at which Mother and Father both proceeded pro se. Mother

      testified that she had lost her full-time job in February 2018 because her

      employer felt that she could not work full-time while also managing Child’s

      medical condition. Mother explained, “when [Child] is ill or when she has

      exasperation [sic] I would have to take her with me to work and so they didn’t

      feel I could be a full time employee ….” Transcript at 7. When Mother testified

      that she was not currently working, the trial court asked if she had a disability

      that prevented her from working a job paying at least minimum wage. Mother


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1351 | November 19, 2019   Page 2 of 8
      responded, “I have a hemangioma on my cerebellum bone[,]” and she indicated

      that she had a disability application currently pending. Id. at 10. Mother

      explained her medical condition:


              [I]t’s the same condition that both of our children have its
              basically an en-tangulation of the … blood vessels in the brain
              mines in the cerebellum um it cause a lot of vertigo nausea um
              and the blood vessels are just very weak and they seep … so um
              I’ve had I think three different hemorrhage and it’s on inoperable
              area ….


      Id. at 11.


[6]   Father did not dispute that Mother had lost her job for the reason stated or that

      Child and Mother suffer from an ongoing medical condition as described by

      Mother. He simply argued: “[Mother] has had advertisements on facebook for

      medical facials at $60.00 for a 20 minute sessions [sic] so I really struggle with

      her being unemployed and she just doesn’t have a verifiable income in my

      opinion.” Id. at 14. At the conclusion of the hearing, Father added: “I just

      struggle with her she’s a nurse she has three decrees [sic] and can’t work any

      from home.” Id. at 16.


[7]   Mother offered to obtain documentation from her neurosurgeon regarding her

      medical condition. The trial court responded, “I think your testimony suffices.”

      Id. Before taking the matter under advisement, the court told Mother to inform

      it if she subsequently received disability benefits.




      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1351 | November 19, 2019   Page 3 of 8
[8]    On December 10, 2018, the trial court issued its order granting modification of

       child support. Finding a substantial and continuing change in circumstances,

       the court increased Father’s weekly support obligation from $116.48 to $201.00.

       This support calculation was based on the trial court imputing weekly income

       to Mother at $290.00, the federal minimum wage. Father’s weekly income, as

       reported by Father at the hearing, was $1510.00.


[9]    On January 9, 2019, Father, now represented by counsel, filed a motion to

       correct error (MTCE). Father argued that the trial court failed to impute

       income to Mother “commensurate with her education, work history, skills, and

       ability to earn more.” Appendix at 37. In this regard, he noted, among other

       things, that Mother was working as a home health nurse making more than

       $1000.00 per week before her termination in February 2018. Mother filed a

       written response to the MTCE, in which she explained why she was unable to

       work in her past capacity as a home health nurse. In sum, Mother argued:

       “Mother is disabled, unable to work in a position typical for someone of her

       training and professional status, this is compounded by her need to take care of

       the Father’s two medically fragile children.” Id. at 41. Following a brief

       hearing, the trial court denied Father’s MTCE on May 24, 2019. Father now

       appeals.


                                           Discussion & Decision


[10]   On appeal, Father challenges the amount of wages imputed to Mother by the

       trial court, arguing that it should have been more than minimum wage and in


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1351 | November 19, 2019   Page 4 of 8
       line with her education, work history, skills, and earning ability. He notes that

       prior to her termination Mother earned more than $1000 per week as a home

       health nurse and asserts that she provided no evidence regarding her efforts to

       obtain employment or that she could not work. We reject Father’s invitation to

       reweigh the evidence.


[11]   In family law matters, our review is conducted with a “preference for granting

       latitude and deference to our trial judges.” In re Marriage of Richardson, 622

       N.E.2d 178, 178 (Ind. 1993); see also Miller v. Miller, 72 N.E.3d 952, 954 (Ind.

       Ct. App. 2017). We will reverse a modification of child support only where the

       trial court has abused its discretion. Sandlin v. Sandlin, 972 N.E.2d 371, 375

       (Ind. Ct. App. 2012). An abuse of discretion occurs when the trial court

       misinterprets the law or the decision is clearly against the logic and effect of the

       facts and circumstances. Id. We do not reweigh the evidence or judge the

       credibility of the witnesses upon review; rather, we consider only the evidence

       most favorable to the judgment. Id. It is not enough that the evidence might

       have supported a different conclusion; to reverse the trial court, the evidence

       must lead to but one conclusion. Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind.

       2016).


[12]   A calculation of child support pursuant to the Indiana Child Support

       Guidelines (the Guidelines) is presumed to be valid. Sandlin, 972 N.E.2d at

       375. Under the Guidelines, trial courts may impute income to a parent for

       purposes of calculating child support based on a determination that the parent is

       voluntarily unemployed or underemployed without just cause. Ind. Child

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1351 | November 19, 2019   Page 5 of 8
       Support Guideline 3(A)(3). “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.” Id. While trial courts

       have “wide discretion with regard to imputing income to ensure the child

       support obligor does not evade his or her support obligation,” child support

       orders cannot be used to force parents to work to their full economic potential

       or make their career decisions based strictly upon the size of potential

       paychecks. Miller v. Sugden, 849 N.E.2d 758, 761 (Ind. Ct. App. 2006), trans.

       denied; see also Meredith v. Meredith, 854 N.E.2d 942, 947 (Ind. Ct. App. 2006);

       Child Supp. G. 3(A), cmt 2(c) (“Obviously, a great deal of discretion will have

       to be used in this determination.”).


[13]   Ultimately, the determination of how much potential income to attribute to an

       unemployed or underemployed parent is a fact-sensitive inquiry requiring

       careful consideration of the evidence in each case. See Child Supp. G. 3(A),

       cmt 2(c)(2) (“Discretion must be exercised on an individual case basis to

       determine under the circumstances there is just cause to attribute potential

       income to a particular unemployed or underemployed parent.”). The

       commentary to Guideline 3(A) illustrates some considerations that might be

       present in a given case. With respect to job termination, the commentary

       observes that “potential income may be determined based upon such factors as

       the parent’s unemployment compensation, job capabilities, education and

       whether other employment is available. Potential income equivalent to the


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1351 | November 19, 2019   Page 6 of 8
       federal minimum wage may be attributed to that parent.” Child Supp. G. 3(A),

       cmt 2(c)(4). Further, the commentary observes that a parent’s ability to work

       might be affected by the parent’s own health issues or the need to care for a

       disabled child. See Child Supp. G. 3(A), cmt 2(c)(5).


[14]   Here, Mother testified that her full-time employment as a nurse was terminated

       as a result of the care she needed to provide to Child, who was medically

       fragile. Mother also testified regarding her own neurological condition that

       made returning to her prior profession untenable and resulted in her applying

       for disability benefits. 1 At the modification hearing, Father did not contest that

       Mother and Child had health conditions that affected Mother’s ability to work

       in her prior capacity. He simply opined that she should at least be able to work

       from home and noted that she had advertised medical facials on Facebook.


[15]   Based on the evidence presented, the trial court determined that Mother was

       underemployed, and the court imputed income to her equivalent to working full

       time at the federal minimum wage. Thus, the court believed that Mother could

       work in a limited capacity but could not (or had just cause not to) return to the

       type of work that she had prior to her termination. The trial court’s imputation

       of potential income to Mother at an amount significantly less than what she




       1
        Father misconstrues Child Supp. G. 3(G)(5)(a)(3), which addresses modification of support based on Social
       Security Disability benefits paid to a parent for the benefit of a minor child.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1351 | November 19, 2019              Page 7 of 8
       made prior to termination of her employment as a nurse was supported by the

       evidence and within the trial court’s broad discretion.


[16]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




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