      MEMORANDUM DECISION                                                                 FILED
                                                                                      Apr 02 2019, 9:43 am
      Pursuant to Ind. Appellate Rule 65(D),                                              CLERK
      this Memorandum Decision shall not be                                           Indiana Supreme Court
                                                                                         Court of Appeals
      regarded as precedent or cited before any                                            and Tax Court

      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Eric E. Snouffer                                         Christopher M. Forrest
      Fort Wayne, Indiana                                      Fort Wayne, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Nicole L. (Nichter) Nolot,                               April 2, 2019
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               18A-DR-1201
              v.                                               Appeal from the Allen Superior
                                                               Court
      Christopher M. Nichter,                                  The Honorable Charles F. Pratt,
      Appellee-Respondent.                                     Judge
                                                               The Honorable Sherry A. Hartzler,
                                                               Magistrate
                                                               Trial Court Cause No.
                                                               02D07-0610-DR-613



      Altice, Judge.


                                             Case Summary
[1]   Nicole L. (Nichter) Nolot (Mother) appeals the trial court’s order that granted

      Christopher M. Nichter’s (Father) motion to modify child support. She raises
      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019                Page 1 of 21
      several issues on appeal that we consolidate and restate as: whether the trial

      court abused its discretion when it reduced Father’s child support obligation

      and, in so doing, declined to impute potential income to Father.


[2]   We affirm.


                                     Facts & Procedural History
[3]   Mother and Father married in February 1999. They have three children, born

      between 1999 and 2003. In 2001, Father and two business partners

      incorporated a business called Marquis Consulting Services, Inc., which

      provided solutions to states for the processing and production of driver’s

      licenses and identification cards. In October 2006, Mother filed a petition for

      dissolution. The parties entered into a mediated settlement agreement, which

      the trial court approved and incorporated into its February 2007 decree of

      dissolution. By that time, Marquis Consulting was owned by Father and one

      partner and was valued at $301,000, according to a valuation that Father

      obtained from a third party. 1 As is relevant here, the decree awarded all interest

      in Marquis Consulting to Father; Father was to pay Mother $26,600 per year in

      maintenance for five years, and she was awarded an equalization judgment in

      the amount of $50,500. In addition, Father was to pay $566 per week for the

      support of the parties’ children.




      1
        In their settlement agreement, the parties agreed to waive formal discovery as to the value of assets and
      liabilities comprising the marital estate.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019                      Page 2 of 21
[4]   In January 2013, Mother filed a petition for modification of child support. The

      parties entered into a mediated settlement agreement, and, on August 20, 2014,

      the trial court issued an Order Approving Mediated Settlement Agreement

      (August 2014 Order). The August 2014 Order reflected the parties’ agreement

      that Father would pay $2200 per week in child support, which was based on

      weekly gross income figures of $30,862 (or $1,604,824 per year) for Father and

      $703.85 for Mother. The $2200 figure was a downward deviation from the

      recommended support obligation, but the parties agreed that $2200 was

      appropriate and satisfied the current needs of the children.


[5]   Later in 2014, Father and his partner sold Marquis Consulting (the company)

      along with an associated real estate holding company called CM260

      Enterprises 2 to a third party. Under the terms of the sale, Father received lump

      sum payments of $14,000,000 in 2014 and $2,000,000 in 2016, and a one-time

      payment in 2017 of $177,000, which was based on the company’s performance.

      As part of the sale, Father executed a covenant not to compete. Also, as part of

      the sale and in transitioning the company to new ownership, Father agreed to

      continue working for the new company until on or about December 2015 with

      an annual salary of approximately $80,000. Father retired in April 2016.




      2
        Father testified that CM260 was a real estate holding company that he and his partner created to purchase
      the building that would be leased to Marquis Consulting. He stated that CM260 was not appraised in the
      sale process and that he and his partner sold it for what they had paid for it.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019                   Page 3 of 21
[6]   In April 2017, Father filed a petition to modify parenting time, custody, and

      child support, and the matter was set for a January 12, 2018 hearing. 3 Prior to

      the start of the hearing, the parties submitted a stipulation as to parenting time

      and custody, such that the only issue left for the trial court’s determination was

      child support. Father requested that the trial court issue special findings and

      conclusions.


[7]   Father testified at the hearing that he retired in April 2016 and does not intend

      to return to paid employment. He said that, prior to the sale of the company,

      he was working 60-100 hours per week. He stated that his partner was initially

      the primary force in selling the company, but that he supported the idea, both

      because he could not operate the company without his partner and because the

      long hours and stress were affecting his health, noting that he had been

      diagnosed with atrial fibrillation. Father stated that, since the time that he sold

      Marquis and CM260, he lives off interest and investment income and also has

      utilized funds in his bank accounts. Father testified and presented evidence

      showing that for the last several years his investment income had been around



      3
        On January 2, 2018, the parties filed a Joint Notice of Exclusion of Confidential Information from Public
      Access, agreeing that all testimony and exhibits presented by both parties at the January 12 hearing would be
      “Not for Public Access,” and on January 4, 2018, the trial court issued an order approving the joint notice
      and issuing a protective order, which among other things directed that “The Stipulation and Protective Order
      shall survive the entry of judgment of order in this action, . . . including any appeal thereof, . . . and shall
      continue in full force and effect, without limitation in time, subject to further order of the Court or
      modification by agreement of all Parties to the agreement.” Appellant’s Appendix Vol. 2 at 88. On appeal, the
      parties initially filed their briefs and the record as “not for public access,” and each filed Notice of Exclusion
      of Confidential Information from Public Access, relying on the trial court’s January 4, 2018 order. This
      court, on November 9, 2018, issued two related orders finding that the trial court’s January 4, 2018 order was
      issued without a prior hearing and was “insufficient to exclude” the briefs, appendix, transcript, and exhibits
      from public access and ordering that “[n]o information shall be excluded from public access” on appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019                        Page 4 of 21
      $300,000 – $311,314 in 2015, $290,000 in 2016, and approximately $300,000 in

      2017 – which figures he said were reduced by around $91,000 in management

      fees. He testified that he also had an ownership interest in a company that

      owned a rental property in Hawaii and that it was currently operating at a loss.

      Father stated that, as of the time of the January 2018 hearing, he owed

      $6,700,000 in lines of credit for which he paid $15,000 per month in interest.

      Father was questioned about his current source of income and what income he

      anticipated in the future, and he responded that it was currently and would

      continue to be investment income. Father submitted a proposed child support

      worksheet in which Father had an obligation of $505.47 per week, based on a

      weekly gross income for Father in the amount of $3997 (x 52 = $207,844 per

      year) and for Mother in the amount of $1736, which reflected her income from

      employment increased by in-kind benefits from her current husband’s

      restaurant.


[8]   Mother cross-examined Father as to his net worth for the preceding several

      years based on some financial statements, and she questioned him about

      expenses that exceeded his investment income. She presented and questioned

      Father about his 2015 and 2016 tax returns. The 2015 return showed regular

      income of $379,628 ($311,314 in interest and dividends on Marquis Consulting

      proceeds and $68,284 for employment with Marquis), and the 2016 return

      showed regular income of $321,349 ($290,188 in interest and dividends and

      $31,161 for employment with Marquis). The 2015 and 2016 returns also

      reflected sales of short-term and long-term capital assets exceeding $1.8 million


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 5 of 21
      and $2.9 million, respectively. She presented evidence of withdrawals from

      bank accounts, some of which included distributions as well as capital gains

      from the sales of assets. Mother sought to show that Father had expenditures of

      over $2,000,000 in 2016 and again in the first nine months of 2017. Father

      acknowledged that he had withdrawn money from his accounts to buy vehicles,

      improve his home, and other large expenditures in 2014-2016, but he did not

      anticipate continuing to do so in the same way, as it would exhaust his savings.

      With regard to the large expenditures, Father explained that, for some years

      leading up to the sale of Marquis, he and his partner were pouring their earned

      income back into the company. For instance, he stated that although his 2014

      Schedule K-1 indicated that he earned approximately $1.6 million, he actually

      took out only $500,000 and kept the remainder in the company. He testified

      that, once the sale of Marquis was completed, he proceeded with expenditures

      for home improvements and other large purchases, which he had been delaying.

      Father stated that another reason that he withdrew large sums was to make tax

      payments. He also testified that he did not actually receive all monies that

      appeared as withdrawals on his bank statements because some of those monies

      were reinvested in investment accounts.


[9]   Mother testified as to her annual income of $47,700. She said that she learned

      that Father had sold his business when, in the latter half of 2015, she “saw

      something published” about it. Transcript Vol. 2 at 137. Mother submitted two

      proposed child support worksheets. In one worksheet, Father had a child

      support obligation of $4929.47 per week, based on a weekly gross income for


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 6 of 21
       Father in the amount of $42,863 (x 52 = $2,228,876 per year) and a weekly

       gross income for Mother in the amount of $913 (x 52 = $47,476 per year). In

       the second worksheet, Father had a weekly child support obligation of $5266.90

       per week, based on a weekly gross income for Father in the amount of $45,795

       (x 52 = $2,381,340 per year) and a weekly gross income for Mother in the

       amount of $913 (x 52 = $47,476 per year).


[10]   In seeking modification of child support, Father’s position was that there had

       been a substantial and continuing change of circumstances since the August

       2014 Order in that he no longer earned what he was earning at that time

       because he had sold his businesses, retired, and did not intend to return to paid

       employment. Father maintained that he lived on his annual investment

       income, reduced by management fees, but acknowledged that he sometimes

       withdrew funds from investment accounts as well. Mother’s position was that

       Father’s lifestyle and expenses far exceeded his investment income, which she

       maintained reflected that Father did not live exclusively on investment income

       as he claimed, and therefore, in addition to investment income, capital gains

       from sales of investment assets as well as other distributions should be

       considered in calculating Father’s weekly gross income for child support

       purposes.


[11]   On April 18, 2019, the trial court issued Confidential Findings of Fact and

       Conclusions of Law, which modified and reduced Father’s child support

       obligation to $682 per week, based on a weekly gross income for Father of

       $5784 (x 52 = $300,768 per year) and a weekly gross income for Mother of $913

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 7 of 21
(x 52 = $47,476). The trial court’s findings and conclusions included the

following:


        24. The Court finds that Father has utilized the funds from the
        sale of his business to make significant expenditures to support
        his lifestyle, however, the source of those funds are from the sale
        of an asset that he was awarded in the parties’ dissolution. The
        Court finds that Father lives solely on his investment income
        earned from the sale of his company. Father also owns a rental
        company that holds real estate in Hawaii. The Court finds
        through Father’s testimony that the rental company does not
        make a profit and that Father loses money as a result of that
        company and its Hawaii real estate. Father’s 2015 and 2016 tax
        returns demonstrate that Father did claim a loss related to the
        operation of the Hawaii real estate for both years.


        25. The Court finds that for the years 2015 an[d] 2016, Father
        earned an average of $300,751.00 in interest and dividends on
        investments attributable to the sale of Marquis Consulting.


                                                ***


        34. In this matter the parties dispute whether the capital gains
        from the sale of Father’s business should constitute income
        within the meaning of the Guidelines.


                                                ***


        36. Here the parties agreed and it was ordered that Father be
        awarded the Marquis Consulting Services, among other things,
        as part of the equitable division of the marital estate. As also a
        part of the equitable division of the marital estate, Mother was
        also granted property as well as a property equalization judgment
        in the amount of $50,500.00.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 8 of 21
               37. Thus, the Court having considered the capital gains from the
               sale of Marquis Consulting, the Court now concludes that to
               “utilize the capital gain from Father’s sale of the business interest
               in the calculation of his weekly gross income would “usurp the
               equitable split of the marital property in the [Marital Settlement
               and Decree of Dissolution].” [Scoleri v. Scoleri, 766 N.E.2d 1211,
               1217 (Ind. Ct. App. 2002).]


       Appellant’s Appendix Vol. 2 at 36-38.


[12]   In rejecting Mother’s request to assign potential income to Father, the court

       recognized the following considerations: (1) “[T]he purpose behind

       determining potential income is to [] ‘discourage a parent from taking a lower

       paying job to avoid the payment of support,’” and “[t]he Court does not

       conclude that Father sold his business to avoid the payment of significant

       support”; (2) Father “still earns a significant income from his interest and

       dividends on his investments”; (3) Father’s prior employment was lucrative but

       he “cannot pursue this same level of employment considering the covenant not

       to compete”; (4) “[t]here was no evidence presented to establish that there were

       prevailing job opportunities and earnings levels in the community by which

       Father could earn the nearly 1.6 million dollars per year”; and (5) [i]t was

       undisputed that Father was working 60-100 hours per week, and the Guidelines

       should not be used to require a parent to continue working sixty-hour weeks




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 9 of 21
       “just to meet a support obligation that is based on that higher level of earnings.”

       Id. at 39. 4 Mother now appeals.


                                          Discussion & Decision
[13]   Mother contends that the trial court erred when it granted Father’s request to

       modify child support and reduced his support obligation. In dealing with

       family law matters, “our review is conducted with ‘a preference for granting

       latitude and deference to our trial judges.’” Miller v. Miller, 72 N.E.3d 952, 955

       (Ind. Ct. App. 2017) (quoting In re Marriage of Richardson, 622 N.E.2d 529, 532

       (Ind. 1993)). We will reverse a trial court’s grant or denial of a request for

       modification of child support only where the 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 before the

       court. 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 and the reasonable inferences to be drawn therefrom. Id. A

       calculation of child support under the Guidelines is presumed to be valid. Id.


[14]   In granting Father’s petition to modify child support, the trial court entered

       written findings of fact and conclusions pursuant to Father’s request. When




       4
        Determining that “Father’s resources and economic condition is by far superior to Mother’s,” the trial court
       ordered Father to pay $15,000 in Mother’s attorney fees. Appellant’s Appendix Vol. 2 at 40.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019                  Page 10 of 21
       findings of fact and conclusions thereon are entered by the trial court, we apply

       a two-tiered standard of review:


                [F]irst, we determine whether the evidence supports the findings
               and second, whether the findings support the judgment. We do
               not weigh the evidence or judge the credibility of the witnesses
               but, rather, consider only that evidence most favorable to the
               judgment, together with the reasonable inferences that can be
               drawn therefrom. Challengers must establish that the trial court’s
               findings are clearly erroneous. Findings are clearly erroneous
               when a review of the record leaves us firmly convinced a mistake
               has been made. However, we do not defer to conclusions of law,
               and a judgment is clearly erroneous if it relies on an incorrect
               legal standard.


       Miller v. Sugden, 849 N.E.2d 758, 760 (Ind. Ct. App. 2006), trans. denied

       (citations omitted).


[15]   In this appeal, Mother claims that the trial court abused its discretion when

       calculating Father’s weekly gross income because (1) it was “based solely on the

       interest and dividends” – and did not include imputed potential income or in-

       kind income – “despite the unrefuted evidence of [Father’s] voluntary

       unemployment, lavish lifestyle, and bank records depicting substantial

       expenditures;” and (2) it “exclude[ed] Father’s capital gains from his income.”

       Appellant’s Brief at 8-9. We address each argument in turn.


                                              1. Potential Income

[16]   The starting point in determining the child support obligation of a parent is to

       calculate the weekly gross income for both parents. Ind. Child Support


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 11 of 21
       Guideline 3(A), cmt. 2. Weekly gross income is defined as “actual weekly gross

       income of the parent if employed to full capacity, potential income if

       unemployed or underemployed, and imputed income based upon in-kind

       benefits.” Child Supp. G. 3(A)(1). “If a court finds a parent is voluntarily

       unemployed or underemployed without just cause, child support shall be

       calculated based on a determination of potential income.” Child Supp. G.

       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. The commentary to Guideline 3 provides some

       insight into the purpose of attributing potential income to a parent: One

       purpose is “to discourage a parent from taking a lower paying job to avoid the

       payment of significant support” and another is “to fairly allocate the support

       obligation when one parent remarries, and because of the income of the new

       spouse, chooses not to be employed.” Child Supp. G. 3, cmt. 2(c).


[17]   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. Meredith v. Meredith, 854 N.E.2d 942, 947 (Ind. Ct. App.

       2006); Sugden, 849 N.E.2d at 761. “‘Obviously, a great deal of discretion will

       have to be used in this determination.’” Miller, 72 N.E.3d at 955 (quoting Child

       Supp. G. 3(A), cmt 2(c)). Indeed, we will reverse a trial court’s decision


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 12 of 21
       regarding a parent’s unemployment or underemployment and imputation of

       potential income only for an abuse of discretion. In re Paternity of Pickett, 44

       N.E.3d 756, 762 (Ind. Ct. App. 2015). In determining whether the trial court

       abused its discretion, we do not reweigh the evidence or judge the credibility of

       witnesses, and we consider only the evidence and reasonable inferences

       favorable to the judgment. Id.


[18]   Here, in calculating child support, the trial court used the weekly gross income

       figure that Mother proposed for herself. For Father, it used a weekly gross

       income figure that was more than Father had proposed but less than Mother

       had proposed. The figure was an amount that the trial court determined

       represented Father’s annual investment income, although not reduced by the

       management fees as Father had requested.


[19]   In challenging the trial court’s calculation of Father’s weekly gross income, and,

       more specifically, its decision not to attribute potential income to him, Mother

       argues that the trial court “erroneously concluded that in order to attribute

       potential income to a parent, the court must find that the parent altered his

       income to avoid the payment of support or other improper motive.” 5 Appellant’s

       Brief at 9. Stated differently, Mother claims that the trial court was under the

       mistaken belief that, because the court had found that Father’s retirement was




       5
         Mother refers to Finding No. 19, in which the trial court found that Father did not have any improper
       motives for his retirement and Conclusion No. 42(c), in which the trial court concluded that Father did not
       sell his business to avoid the payment of significant support.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019                   Page 13 of 21
       not based on a desire to avoid child support or other improper motive, it could

       not impute potential income to him.


[20]   As Mother correctly observes, a parent’s avoidance of child support is “not a

       necessary prerequisite” to imputing income. See Pickett, 44 N.E.3d at 766. That

       is, “it is within the trial court’s discretion to impute potential income even

       under circumstances where avoiding child support is not the reason for a

       parent’s unemployment.” Id. However, contrary to Mother’s suggestion that

       the trial court misunderstood this premise, the trial court’s decision to not

       impute income was based on a number of considerations.


[21]   Again, those reasons, summarized, were: (1) Father did not sell his business to

       avoid the payment of significant support; (2) Father still earns a significant

       income from his interest and dividends on his investments; (3) Father’s prior

       employment was lucrative but he “cannot pursue this same level of

       employment considering the covenant not to compete;” (4) there was no

       evidence presented concerning prevailing job opportunities and earnings levels

       in the community “by which Father could earn the nearly 1.6 million dollars

       per year”; and (5) Father was working 60-100 hours per week, and the

       Guidelines should not be used to require a parent to continue working sixty-

       hour weeks “just to meet a support obligation that is based on that higher level

       of earnings.” Appellant’s Appendix Vol. 2 at 39. The trial court’s order thus

       reflects that, in declining to attribute potential income to Father, the court

       considered five circumstances, including but not limited to the fact that Father

       did not sell his business to avoid payment of support. Accordingly, its decision

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 14 of 21
       was not, as Mother argued, based only on the finding that Father did not retire

       in order to avoid paying support.


[22]   Mother also challenges the following sentence included in Finding No. 24:

       “The Court finds that Father lives solely on his investment income earned from

       the sale of his company.” Id. at 36. She argues, “This finding is contrary to the

       evidence presented and it was erroneous for the Trial Court not to impute

       income to Father based on his expenditures.” Appellant’s Brief at 9. Mother is

       correct to the extent that evidence presented reflects that in the past few years

       Father did not live exclusively on his investment income, as his expenditures

       had exceeded that income, and Father acknowledged that he accessed the

       proceeds from the sale of his businesses to maintain his lifestyle, pay his bills,

       travel, improve his home, and buy vehicles. However, Father testified that in

       2018 and the foreseeable future, he anticipated living on the income and

       distributions from his investment accounts, noting that he would not and could

       not sustain the large expenditures that he made in prior years. We also observe

       that Finding 24, in full, stated:


               The Court finds that Father has utilized the funds from the sale
               of his business to make significant expenditures to support his
               lifestyle, however, the source of those funds are from the sale of
               an asset that he was awarded in the parties’ dissolution. The
               Court finds that Father lives solely on his investment income earned from
               the sale of his company. Father also owns a rental company that
               holds real estate in Hawaii. The Court finds through Father’s
               testimony that the rental company does not make a profit and
               that Father loses money as a result of that company and its
               Hawaii real estate. Father’s 2015 and 2016 tax returns

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 15 of 21
               demonstrate that Father did claim a loss related to the operation
               of the Hawaii real estate for both years.


       Id. at 36 (emphasis added). Thus, in our view, Finding 24 when read in its

       entirety and in context with the remainder of the court’s findings and

       conclusions reflects that the trial court recognized that Father utilized funds

       from the sale to support his lifestyle but determined that those funds would not

       be included in Father’s weekly gross income. We do not find Finding 24 to be

       clearly erroneous.


[23]   Father asserts that “[e]ven if the Trial Court could have included additional

       amounts in Father’s weekly gross income, it was not required to do so[.]”

       Appellee’s Brief at 10. We agree. While it is undisputed that Father voluntarily

       retired after selling his businesses, this is not a situation in which Father makes

       no or little income. He still earns in the range of $300,000 per year on his

       investments. Although he was earning considerably more before he sold the

       businesses, evidence was presented that he had been working 60-100 hour

       weeks and that he believed his health was being impacted by the stress and long

       hours. Our Guidelines are not to 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. Meredith, 854 N.E.2d at 947; Sugden, 849 N.E.2d at 761.

       Father testified that he intended to live on his investment income in the

       foreseeable future and not make the same type of large expenditures that he had

       made after the sale. The trial court evidently accepted the veracity of this

       testimony, and we will not second-guess the trial court’s assessment. See

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 16 of 21
       Sandlin, 972 N.E.2d at 375. Additionally, we observe that Mother did not

       present any evidence of Father’s occupational qualifications, prevailing job

       opportunities, or earnings levels in the community against which to compare

       the approximately $300,000 in income that he was receiving on investments,

       other than evidence that the parties agreed in 2014 that his annual income was

       approximately $1.6 million dollars.


[24]   Based on the totality of the circumstances, the trial court decided not to assign

       potential income to Father. We conclude that it was within the trial court’s

       wide discretion to so decide. Id. (finding that trial court acted within its

       discretion to decline to impute income to mother where mother voluntarily left

       position with company to start own company); In re Paternity of E.M.P, 722

       N.E.2d 349, 351 (Ind. Ct. App. 2000) (holding that potential income would not

       be imputed to father based upon his quitting job as garbage collector to take job

       in which he earned substantially less income, where father quit job due to

       health concerns and to receive better benefits); cf. Meredith, 854 N.E.2d at 948

       (finding that it was within trial court’s discretion to find that father was

       voluntarily unemployed where he voluntarily retired from his job as foundry

       worker making $22,678 per year in addition to pension income of $21,907 (total

       of $52,565 per year) and took early retirement such that he received only

       pension income in the amount of $29,978).


                                               2. Capital Gains

[25]   In a related argument, Mother also asserts that the trial court should have

       included in Father’s weekly gross income, not only Father’s investment income,
       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 17 of 21
       but also “all monies he was utilizing to pay his living expenses and otherwise

       supporting his lifestyle,” including capital gains from sales of investments.

       Appellant’s Brief at 16. Mother is correct that Child Supp. G. 3(A)(1) provides

       that weekly gross income includes income from any source, including capital

       gains. However, the Commentary to the Guidelines recognizes the “fact-

       sensitive” nature of computing child support and cautions that determining

       income is more difficult when irregular or nonguaranteed forms of income are

       involved. Child Supp. G. 3(A), cmt. 2(b).


[26]   In this case, Father and Mother agreed when their marriage was dissolved in

       2007, he would retain his interest in Marquis Consulting, and, in exchange,

       Father incurred more marital debt and paid Mother maintenance for five years

       as well as a cash equalization judgment. Father sold his businesses in 2014 and

       received lump-sum payments in 2014 and 2016 and a third payment in 2017.

       He invested those payments and earns investment income thereon. Bank

       statements and other evidence reflects that he sold and used some investments

       to make expenditures, in some years totaling over $2,000,000. Father

       acknowledged that he spent more than what he earns in interest income each

       year and testified that he was living on the $300,000 income as well as “some of

       the money [he] has in the bank accounts.” Transcript Vol. 2 at 90. Mother

       maintains that “the capital gains Father realized from the sale of his income

       producing assets should be attributed to him as he utilizes them.” Appellant’s

       Brief at 23.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 18 of 21
[27]   In declining to include the capital gains from the sale of Father’s investments in

       the calculation of his weekly gross income, the trial court stated:


               37. [T]he Court having considered the capital gains from the sale
               of Marquis Consulting, the Court now concludes that to “utilize
               the capital gain from Father’s sale of the business interest in the
               calculation of his weekly gross income would “usurp the
               equitable split of the marital property in the [Marital Settlement
               and Decree of Dissolution].” Scoleri, 766 N.E.2d at 1217.


       Appellant’s Appendix Vol. 2 at 38.


[28]   In Scoleri, relied on by the trial court in the present case, the parties disputed

       whether an early withdrawal from the father’s 401(k) account constituted

       income within the meaning of the Guidelines. There, as part of the parties’

       1994 property settlement agreement, the father received the 401(k) account and

       the mother received the marital home. In December 1997, the father’s job was

       terminated due to plant closure and layoffs, and he took a lower-paying job. At

       the time that he left the company, his 401(k) was valued at $35,000. On August

       3, 1998, Father “cashed in” the full amount of his 401(k) and, less the incurred

       penalty, he received $28,000. On August 24, 1998, father filed a petition to

       modify child support due to the job change and lower income. The trial court

       denied the father’s petition and he appealed. Specifically, the father argued that

       the trial court had erred when it considered the early withdrawal from his

       retirement account as income that should be included in his child support

       obligation calculation.



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 19 of 21
[29]   After discussing the nature of a 401(k) plan, we determined that because the

       withdrawal was received by the father, immediately available for use, and it

       reduced the father’s living expenses, the withdrawal constituted income within

       the meaning of the Guidelines. Id. at 1217. However, this court determined

       that it was error for the trial court to include the cash withdrawal in the

       calculation of the father’s child support obligation because he had received the

       401(k) in the dissolution in exchange for Mother retaining the marital home.

       Id. at 1217-18. Specifically, we found that “to utilize the return from Father’s

       early withdrawal from his 401(k) in the calculation of his weekly gross income

       would usurp the equitable split of the marital property in the summary

       dissolution decree[,]” and, consequently, we deemed it “inequitable to utilize

       Father’s portion of the marital property, his 401(k) account, in the calculation

       of his weekly gross income.” Id. at 1217-18.


[30]   Likewise, here, the parties agreed and the trial court entered a dissolution

       decree in 2007 awarding Father his business interest as part of the marital

       property distribution. Upon Father’s April 2017 petition to modify, the trial

       court determined that to utilize the capital gain from Father’s sale of

       investments – investments that represented proceeds from the sale of his

       business interests – would effectively usurp the split of marital property in the

       dissolution decree. Thus, the trial court considered the matter of capital gains,

       but concluded the gains should be excluded from the child support calculation.

       Mother has not shown that the trial court abused its discretion in doing so.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 20 of 21
[31]   Again, “[a] trial court’s calculation of child support is presumptively valid.”

       Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008). In this case, we cannot say

       that the trial court’s determination of weekly gross income, and accompanying

       calculation of child support, was an abuse of its discretion.


[32]   Judgment affirmed.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019   Page 21 of 21
