                                                                      Oct 30 2015, 10:28 am




        ATTORNEY FOR APPELLANT                                 ATTORNEY FOR APPELLEE
        Donna Jameson                                          Stephen R. Lewis
        Greenwood, Indiana                                     Indianapolis, Indiana



                                                  IN THE
            COURT OF APPEALS OF INDIANA

        Tina Carmer,                                           October 30, 2015
        Appellant-Respondent,                                  Court of Appeals Case No.
                                                               49A05-1411-DR-539
                v.                                             Appeal from the Marion Superior
                                                               Court
        Scott Carmer,                                          The Honorable Patrick L.
        Appellee-Petitioner                                    McCarty, Judge
                                                               Trial Court Case No.
                                                               49D03-1401-DR-619



        Mathias, Judge.

[1]     Tina and Scott Carmer’s marriage was dissolved in the Marion Superior Court.

        Tina appeals the dissolution decree raising five issues, which we consolidate

        and restate as:

                I. Whether the trial court abused its discretion when it failed to include
                Scott’s annuity income in the child support calculation;

                II. Whether the trial court erred in interpreting the parties’ prenuptial
                agreement and deviating from that agreement; and


        Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015            Page 1 of 20
                III. Whether the trial court abused its discretion in its division of the
                marital liabilities.

[2]     We affirm in part, reverse in part, and remand for proceedings consistent with

        this opinion.

                                      Facts and Procedural History

[3]     Tina and Scott were married in 1994, and three children were born to the

        marriage. The parties’ oldest child is emancipated.

[4]     Prior to the marriage, in 1988, Scott, who was a teenager at the time, was

        severely injured in an automobile accident. He suffered a brain injury, walks

        with a limp, and cannot use one of his arms. Monthly annuity payments from a

        structured settlement agreement are his main source of income. Scott also

        works as a greeter at Walmart and earns approximately $450 per week.

[5]     Tina was not employed during the marriage but stayed home to raise the

        parties’ children. Tina and Scott were also raising two foster children in their

        home and planned to adopt the children. After filing a petition to dissolve the

        marriage, Scott stated that he no longer wanted to adopt the children. Tina

        would like to adopt the children, but they were removed from her care after

        Child Protective Services (“CPS”) was contacted regarding the condition of her

        home. Specifically, Tina allowed the family’s pets to urinate and defecate in the

        house and did not clean up after the animals. Tina participated in services

        offered by CPS and is still attempting to adopt the children.




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[6]     The parties entered into a prenuptial agreement on the day they were married.

        The agreement provides in pertinent part:

                In the event of a dissolution of the marriage or of a divorce, Wife
                agrees to accept in full and final settlement and satisfaction of all
                rights claims and interest that she may have whether by way of a
                division of the property of one or both of the parties (or alimony
                or a property settlement as it is sometimes referred to), and in
                every other way to the fullest extent permitted by law, of
                alimony, maintenance, rehabilitative maintenance, support or
                financial benefit of every kind.
                (a) Wife’s separate property, and
                (b) One half (1/2) of all jointly held property, subject to one half
                (1/2) of all indebtedness thereon, including without limitation,
                mortgages and taxes; and
                (c) The following sums dependent upon the time of the
                commencement of the action: . . . If the date of the
                commencement of the action is: . . . more than 14 years [of the
                date of the marriage] Wife shall receive the total sum of: $70,000.

        Ex. Vol., Petitioner’s Ex. 2.

[7]     The parties own two homes, the marital residence and a rental property (the

        former marital residence), and several vehicles. They also have significant credit

        card debt, a loan on one of the vehicles, and mortgages on the real estate.

        During the marriage, the residences were refinanced on multiple occasions to

        assist in paying the parties’ debts.


[8]     Throughout the marriage, Tina was in charge of the parties’ finances. The

        parties incurred a significant amount of debt, and Tina admitted the family

        lived beyond their means. Scott periodically received lump sum payments from

        his structured settlement agreement totaling $350,000 in addition to the

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        monthly annuity payments. Nearly all of those funds were spent during the

        marriage. In 2013, Scott received a $150,000 lump sum payment. When the

        parties’ separated, only $80,000 remained in the parties’ bank account.


[9]     Scott filed the petition for dissolution of marriage on January 10, 2014. He also

        filed a petition to enforce the parties’ prenuptial agreement. The dissolution

        hearing was held on October 10, 2014, and the dissolution decree was issued on

        November 6, 2014. The decree provides in pertinent part:


                5. The Petitioner shall pay Respondent the sum of One Hundred
                Fifty-One Dollars ($151.00) per week as child support for the
                parties’ two minor children.
                6. The aforementioned child support order is based on
                Petitioner’s income from Walmart and the imputation of
                minimum wage to the Respondent. Given the fact that the
                Petitioner is presently not exercising overnights with the children
                he is given no overnight credit.
                7. The child support order does not include any sums received by
                the Petitioner from his structured settlement by virtue of the
                Structured Settlement Protection Act and Section 104(a)(2) of the
                Internal Revenue Code which states: “gross income does not
                include . . . the amount of any damage received (whether by suit
                or agreement and whether as lump sums or as periodic payments
                on account of personal injuries or sickness.)”
                                                       ***

                13. The Respondent managed the parties’ monies during their
                marriage.
                14. The Respondent testified that all lump sum payments made
                to the Petitioner during the marriage from his annuities in the
                total sum of Three Hundred Fifty Thousand Dollars ($350,000)
                have been spent.
                15. The Respondent shall receive all right, title and interest in the
                following vehicles: the Dodge, the Legacy and the Econoline van

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        which were titled in Petitioner’s name and purchased with
        proceeds from his structured settlement. The vehicles are valued
        at Nine Thousand Three Hundred One Dollars ($9301.00), One
        Thousand Nine Hundred Thirty-Four Dollars ($1934.00) and
        One Thousand Two Hundred Twenty-Five Dollars ($1,225.00)
        respectively. The Petitioner shall receive credit for those sums as
        a deduction from the lump sum payment due to Respondent
        pursuant to the terms of the Prenuptial. . . .

                                               ***

        18. The Respondent shall receive all right, title and interest to her
        clothing and personal effects and the personal property in the
        marital residence excluding the kitchen appliances and window
        coverings. The furniture, pursuant to the terms of the Prenuptial,
        is deemed to be the property purchased by the Petitioner since
        the Respondent offered no evidence that she purchased the
        furniture from an account in her name alone. As a result, the
        Petitioner shall receive credit for the value of the furniture in the
        sum of Five Thousand Dollars ($5,000.00) as a deduction from
        the lump sum payment owed to Respondent pursuant to the
        terms of the Prenuptial.

                                               ***

        37. Petitioner introduced testimony and numerous exhibits
        substantiating the depreciation to the residence from the urine
        and feces damage done by Respondent’s pets after Petitioner left
        the residence. The Respondent refuses to remove the pets from
        the residence.

                                               ***

        42. Respondent shall leave the marital residence in “for sale”
        condition (clean without any additional waste).
        43. Petitioner shall sell the marital residence. Any net equity after
        payment of the mortgages, realtor’s fees, closing costs and any
        principal payments paid on the mortgages by the Petitioner
        during the pendency of this matter, shall be split (should any
        exist).
        44. Any reasonable repairs or damages resulting from
        Respondent’s waste to the property required to be done for the

Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015   Page 5 of 20
                 residence to be sold shall be deducted from Respondent’s portion
                 of the proceeds as shall any depreciation to the residence
                 referenced in the purchase price of Two Hundred Ninety Nine
                 Thousand Dollars ($299,000.00) less the sale price.
                 45. The parties’ prenuptial provided for a payment to Respondent
                 of Seventy Thousand Dollars ($70,000) after 14 years of
                 marriage.
                 46. From this sum all payments for repairs and depreciation
                 referenced in paragraph 42 [concerning the marital residence],
                 should the residence be sold at a loss, shall be deducted and
                 considered Respondent’s dissipation of marital assets.
                 47. In addition so should the costs of attorney’s fees and
                 investigator’s fees of Fifteen Thousand Dollars ($15,000.00) paid
                 by Respondent from Petitioner’s Structured Settlement Proceeds
                 for the adoption of two children the Respondent lost custody of
                 due to her negligence pursuant to a Court Order of the Marion
                 County Juvenile Court. Respondent’s loss of custody resulted
                 from her lack of care of the children, the condition of the marital
                 residence and its effect on the children which the Respondent
                 allowed to occur when the children and the house were in her
                 sole custody. As a result this was a dissipation of the marital
                 assets.
                 48. In addition, there should be a deduction from the Seventy
                 Thousand Dollars ($70,000.00) for the value of the furniture,
                 Five Thousand Dollars ($5,000.00) and for the value of the
                 automobiles referenced above, Twelve Thousand Four Hundred
                 Sixty Dollars ($12,460.00) for a total of Seventeen Thousand
                 Four Hundred Sixty Dollars ($17,460.00).
                 49. The remainder of the Seventy Thousand Dollars
                 ($70,000.00), should there be any, shall be paid immediately [to]
                 Respondent by the Petitioner upon closing of the marital
                 residence (substantiation the loss or gain).

         Appellant’s Amended App. pp. 9-13. Tina appeals the dissolution decree.

         Additional facts will be provided as needed.

                                             Standard of Review

[10]     The trial court entered findings of fact and conclusions of law pursuant to

         Indiana Trial Rule 52(A), and therefore, we apply a two-tiered standard of

         Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015   Page 6 of 20
         review for clear error; that is, first, we determine whether the evidence supports

         the findings, and second, whether the findings support the judgment. Mysliwy v.

         Mysliwy, 953 N.E.2d 1072, 1075-76 (Ind. Ct. App. 2011) (citations omitted),

         trans. denied. We do not reweigh the evidence but consider the evidence

         favorable to the judgment. Id. Findings of fact are clearly erroneous when the

         record contains no facts to support them, and a judgment is clearly erroneous if

         no evidence supports the findings, the findings fail to support the judgment, or

         if the trial court applies an incorrect legal standard. Bowyer v. Ind. Dep't of

         Natural Res., 944 N.E.2d 972, 983-84 (Ind. Ct. App. 2011). Although we review

         findings under the clearly erroneous standard, we review conclusions of law de

         novo. Id. at 983.


                                        Child Support Calculation

[11]     Tina argues that the trial court erred when it failed to consider Scott’s annuity

         payments under the structured settlement agreement as income when

         calculating his child support obligation. A trial court's calculation of child

         support is presumptively valid, and as such, we will reverse only where the

         determination is clearly erroneous or contrary to law. Young v. Young, 891

         N.E.2d 1045, 1047 (Ind. 2008).

[12]     Indiana Child Support Guideline 1 provides that child support should be

         calculated to reflect the standard of living the children would have enjoyed had

         the marriage not been dissolved. Child Support Guideline 3(A) defines weekly

         gross income broadly and states in pertinent part:


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                 “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. Weekly Gross Income of each
                 parent includes income from any source, except as excluded
                 below, and includes, but is not limited to, income from salaries,
                 wages, commissions, bonuses, overtime, partnership
                 distributions, dividends, severance pay, pensions, interest, trust
                 income, annuities, capital gains, social security benefits,
                 workmen's compensation benefits, unemployment insurance
                 benefits, disability insurance benefits, gifts, inheritance, prizes,
                 and alimony or maintenance received from other marriages.
                 Social Security disability benefits paid for the benefit of the child
                 must be included in the disabled parent’s gross income. The
                 disabled parent is entitled to a credit for the amount of Social
                 Security disability benefits paid for the benefit of the child.

[13]     In its calculation of his weekly gross income, the trial court did not include the

         $6,500 monthly payments Scott receives from his Structured Settlement

         Agreement. See Ex. Vol., Petitioner’s Ex. 1. The trial court declined to include

         these funds in its calculation of Scott’s weekly gross income:

                 by virtue of the Structured Settlement Protection Act and Section
                 104(a)(2) of the Internal Revenue Code which states: “gross
                 income does not include . . . the amount of any damage received
                 (whether by suit or agreement and whether as lump sums or as
                 periodic payments on account of personal injuries or sickness.)”

         Appellant’s App. p. 9.


[14]     However, the Indiana Child Support Guidelines provide a broader definition of

         income than the Internal Revenue Code. See Commentary to Ind. Child Supp.

         G. 3(A) (explaining that “in calculating weekly gross income, it is helpful to

         begin with total income from all sources. This figure may not be the same as

         Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015      Page 8 of 20
         gross income for tax purposes”); Harris v. Harris, 800 N.E.2d 930, 939 (Ind. Ct.

         App. 2003) (stating “the definition of ‘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”), trans. denied. Scott’s settlement

         funds benefitted the family during the marriage and would have continued to

         benefit the family had it remained intact.

[15]     In Knisely v. Forte, 875 N.E.2d 335, 340 (Ind. Ct. App. 2007), our court held that

         payments for personal injury may be included in the gross weekly income

         calculation. Also, Guideline 3(A) includes income from annuities in the

         definition of weekly gross income. While structured settlement payments are

         not specifically included in the Guidelines’ definition of gross income, both

         annuities and structured settlement payments are certain sums of money paid

         periodically or yearly. See Black’s Law Dictionary 1582 (10th ed. 2014)

         (defining a structured settlement as a party’s agreement to pay periodic sums to

         the opposing party for a specified time or “those which provide for an initial

         cash payment followed by deferred payments in future years, normally on some

         annuity basis”).


[16]     For these reasons, we conclude that the trial court erred when it failed to

         include Scott’s structured settlement payments in its calculation of his weekly

         gross income. We therefore remand this case to the trial court to include the

         structured settlement payments in its calculation of Scott’s gross income or to

         provide justification for deviating from the Guidelines if the court declines to do

         so. See Commentary to Child Supp. G. 3(B) (stating “[w]hen the court deviates

         Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015   Page 9 of 20
         from the Guideline amount, the order or decree should also include the reason

         or reasons for the deviation”).

[17]     Tina also argues that the trial court erred when it failed to address her request

         for child support retroactive to the date Scott filed the petition for dissolution. It

         is within the trial court’s discretion to retroactively apply a child support award

         back to the date of filing or any date thereafter. See Haley v. Haley, 771 N.E.2d

         743, 752 (Ind. Ct. App. 2002). On remand, we also direct the trial court to enter

         a finding concerning whether its child support order should be retroactive to the

         date of filing.


                                               Prenuptial Agreement

[18]     Next, Tina argues that the trial court deviated from the parties’ prenuptial

         agreement when it reduced the $70,000 payment payable to Tina under

         paragraph nine of that agreement.1

                  Antenuptial agreements are legal contracts which are entered into
                  prior to marriage which attempt to settle the interest each spouse
                  has in property of the other, both during the marriage and upon
                  its termination. This court has long held antenuptial agreements
                  to be valid contracts, as long as they are entered into freely and
                  without fraud, duress, or misrepresentation, and are not
                  unconscionable.

         Rider v. Rider, 669 N.E.2d 160, 162 (Ind. 1996). Neither party argues that their

         prenuptial agreement is invalid.


         1
           The interpretation of a contract is primarily a question of law for the court and is reviewed de novo. Boetsma
         v. Boetsma, 768 N.E.2d 1016, 1020 (Ind. Ct. App. 2002), trans. denied.



         Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015                        Page 10 of 20
[19]     The prenuptial agreement provided that if the parties were married for more

         than fourteen years before the marriage was dissolved, Tina was entitled to her

         separate property, one half of “all jointly held property, subject to one half (1/2)

         of all indebtedness thereon,” and a $70,000 payment from Scott. Ex. Vol.,

         Petitioner’s Ex. 2. The trial court awarded Tina $70,000 as provided in the

         parties’ agreement. See Appellant’s App. p. 13.


[20]     The parties’ only significant joint property was the martial residence and the

         former marital residence, which they maintained as a rental property. As agreed

         to by the parties in paragraph 9 of the prenuptial agreement, the trial court

         ordered the parties to sell both properties and to equally split the proceeds of the

         sales after payment of the mortgages, realtor’s commissions, and closing costs.

[21]     Yet, Tina claims that the trial court impermissibly modified the parties’

         agreement when it ordered that reasonable repairs required to be made to the

         marital residence prior to sale due to Tina’s dissipation of the residence would

         be deducted from her “portion of the proceeds as shall any depreciation to the

         residence referenced in the purchase price of Two Hundred Ninety Nine

         Thousand Dollars ($299,000.00) less the sale price.” Appellant’s App. pp. 12-

         13. The parties’ prenuptial agreement does not contain any provision

         addressing dissipation of martial assets. Therefore, the trial court did not




         Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015   Page 11 of 20
         modify the parties’ prenuptial agreement by holding Tina responsible for the

         damage she caused to the marital residence resulting in its diminished value.2

[22]     Prior to the marriage, the parties also agreed that all property acquired by either

         of the parties:

                  both prior to and subsequent to the contemplated marriage and
                  all benefits, income, interests, rents, profits and gains and
                  increases in value . . . which may in time accrue or result in any
                  manner, shall remain and be the separate property of that party
                  and subject entirely to his or her individual control and
                  ownership the same as if he or she were not married.
                  All household goods, furniture, fixtures, artwork, china, silver
                  and the like acquired during the marriage shall be deemed the
                  joint property of the parties if valued under One Thousand
                  Dollars ($1,000.00). Such property valued over One Thousand
                  Dollars ($1,000.00) shall be deemed to be the property of the
                  Husband unless Wife has paid for such with a check drawn on an
                  account in her sole name, a cashier’s check or money order with
                  her remitter or if Wife has other written evidence indicating the
                  item was a gift, an inheritance or belonging to her. Each party
                  herby waives, discharges and releases all right, title and interest
                  in and to the property and Proceeds of the other party presently
                  owned or hereafter acquired.

         Ex. Vol., Petitioner’s Ex. 2.


         2
           Tina also argues that the trial court abused its discretion when it ordered that from the proceeds of the sale
         of the parties’ real estate, Scott will be credited with the mortgage payments he makes while the properties are
         for sale before any remaining equity is split equally between the parties. See Appellant’s Br. at 14; Appellant’s
         App. p. 11. The prenuptial agreement simply provides that Tina is entitled to one half of “all jointly held
         property, subject to one half (1/2) of all indebtedness thereon[.]” See Ex. Vol., Petitioner’s Ex. 2. Given his
         minimal Walmart income, Scott must presumably pay those mortgage payments from the proceeds of
         structured settlement, which under the prenuptial agreement, is solely his asset. Therefore, Tina has not
         persuaded us that the trial court abused its discretion by giving Scott credit for the mortgage payments made
         before the properties are sold.



         Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015                         Page 12 of 20
[23]     During the marriage, the parties used Scott’s annuity payments to purchase

         vehicles and furniture. Accordingly, under the terms of the parties’ agreement,

         any property valued over $1,000 is Scott’s property. The furniture and vehicles

         at issue were all valued over $1,000.3 See Ex. Vol., Petitioner’s Ex. 6.

[24]     On the date of the dissolution hearing, the vehicles and furniture were in Tina’s

         possession. The parties’ emancipated son was the primary driver of one of those

         vehicles. The furniture was in the marital residence, and its value had decreased

         to $5,000 because Tina allowed her animals to damage it. In her proposed

         division of the marital assets, Tina requested the furniture and two of the three

         vehicles. Ex. Vol., Respondent’s Ex. Q.

[25]     Because the trial court awarded Tina non-marital property, equity demanded

         that the court offset the value of that property against the amount owed to Tina

         under the prenuptial agreement. Accordingly, the trial court did not abuse its

         discretion when it awarded Tina the non-marital property she requested but

         also deducted the value of that property from the $70,000 settlement she was

         owed pursuant to the parties’ agreement.




         3
           Tina argues that the vehicles were titled in both her and Scott’s names, and therefore, the vehicles, like the
         marital residence, are marital assets and not subject to the terms of the prenuptial agreement. However, the
         only evidence that the vehicles were titled jointly is the fact that they were listed as marital assets on Scott’s
         financial declaration. See Ex. Vol., Respondent’s Ex. B. The titles of the vehicles were not admitted into
         evidence. Therefore, we cannot conclude that the trial court abused its discretion when it determined that the
         vehicles were not marital assets.



         Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015                          Page 13 of 20
                        Tina’s Attorney Fees for the CHINS Proceedings

[26]     The trial court also found that Tina dissipated marital assets by taking $15,000

         from Scott’s 2013 Structured Settlement Payment to pay attorney fees incurred

         by Tina to defend the CHINS action that arose from Tina’s neglect of her

         residence, which endangered the health of the children in her care. Tina appeals

         the trial court’s decision to deduct that $15,000 from the sum owed to her under

         the prenuptial agreement.

[27]     To support her argument, Tina relies on the following provision in the

         prenuptial agreement: “each party agrees that he or she shall not demand,

         claim, take or receive from the other, any attorney’s fees or other litigation

         expenses . . . to which he or she might otherwise be entitled by reason of any

         rights arising out of or relating to the marriage and/or the relationship of the

         parties.” Appellant’s Br. at 14-15 (quoting Ex. Vol., Petitioner’s Ex. 2).


[28]     This provision is inapplicable to the issue before us. Neither party is demanding

         attorney fees from the other. Tina unilaterally took money from Scott’s

         structured settlement payment to pay a debt that she incurred. Tina admitted

         that, during the dissolution proceedings, she neglected her residence, and as a

         result, CPS filed a CHINS action. Tr. p. 93. The trial court’s decision to deduct

         the $15,000 from the $70,000 payment to which Tina is entitled under the terms

         of the prenuptial agreement is simply the trial court’s attempt to make Scott

         whole from Tina’s dissipation of marital assets.




         Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015   Page 14 of 20
                                               Credit Card Debt

[29]     Finally, Tina argues that the trial erred when it ordered her to pay

         approximately $5,000 owed total on the J.C. Penney and the Chase Slate credit

         card accounts. The division of marital property, which includes the parties’

         assets and liabilities, is a two-step process. First, the trial court must determine

         the property to be included in the marital estate. Leever v. Leever, 919 N.E.2d 118

         124 (Ind. Ct. App. 2009). Indiana Code section 31-15-7-4(a) provides that “the

         court shall divide the property of the parties, whether: (1) owned by either

         spouse before the marriage; (2) acquired by either spouse in his or her own

         right: (A) after the marriage; and (B) before final separation of the parties; or (3)

         acquired by their joint efforts.” “After determining what constitutes marital

         property, the trial court must then divide the marital property under the

         presumption that an equal split is just and reasonable.” Leever, 919 N.E.2d at

         124 (citing Ind. Code § 31-15-7-5). Finally, the division of marital assets and

         liabilities lies within the sound discretion of the trial court, and we will reverse

         only for an abuse of that discretion. Keown v. Keown, 883 N.E.2d 865, 868 (Ind.

         Ct. App. 2008).

[30]     The trial court found that “the parties have substantial credit card debt which

         was primarily incurred by the Respondent who was in charge of the parties’

         finances.” Appellant’s App. p. 13. Scott’s testimony supports this finding, and

         Tina’s argument that she incurred most of the charges buying items for the

         children is simply a request to reweigh the evidence and the credibility of the

         witnesses, which our court will not do. See Keown, 883 N.E.2d at 868.

         Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015   Page 15 of 20
[31]     Moreover, the trial court ordered Scott to bear responsibility for the parties’

         joint Fifth Third debt in the amount of $5433.54. Ex. Vol., Petitioner’s Ex. 10,

         Appellant’s App. p. 13. Also, it is reasonably likely that the marital residence

         will be sold at a loss for which Scott will be financially responsible.

[32]     For all of these reasons, the trial court did not abuse its discretion when it

         ordered Tina to bear responsibility for the debt incurred on the Chase and J.C.

         Penney credit cards.


                                                   Conclusion

[33]     The trial court did not err when it interpreted the parties’ prenuptial agreement.

         The trial court also did not err when it subtracted certain sums from Tina’s

         $70,000 payment under the terms of the agreement after the court awarded her

         non-marital assets at her request and due to her dissipation of Scott’s structured

         settlement payments. However, the trial court erred when it failed to consider

         Scott’s structured settlement payments in its calculation of Scott’s gross income

         for the purposes of child support. We therefore remand this case to the trial

         court for proceedings consistent with this opinion.

[34]     Affirmed in part, reversed in part, and remanded for proceedings consistent

         with this opinion.

         May, J., concurs.


         Robb, J., concurs in result in part with opinion.




         Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015   Page 16 of 20
                                                  IN THE
            COURT OF APPEALS OF INDIANA

        Tina Carmer,                                           Court of Appeals Case No.
                                                               49A05-1411-DR-539
        Appellant-Respondent,

                v.

        Scott Carmer,
        Appellee-Petitioner



        Robb, Judge, concurring in result in part.


[1]     I write separately to address only the first issue: whether the trial court abused

        its discretion when it failed to include Scott’s monthly structured settlement

        payments as income in the calculation of child support. The majority holds the

        trial court abused its discretion when it failed to include Scott’s monthly

        structured settlement payments in calculating his weekly gross income, citing

        the definition of “weekly gross income” in Indiana Child Support Guideline

        3(A) and the decision in Knisely v. Forte, 875 N.E.2d 335 (Ind. Ct. App. 2007),

        that a personal injury settlement may be included in the weekly gross income

        figure. See slip op. at ¶ 15.


[2]     I agree with the majority that Guideline 3(A) defines weekly gross income as

        “income from any source,” and that it is a broader definition than the Internal

        Revenue Code definition of gross income, on which the trial court relied in


        Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015         Page 17 of 20
        excluding Scott’s structured settlement payments from his weekly gross income.

        However, I do not believe Knisely is particularly helpful in determining whether

        Scott’s structured settlement payments are includable in his weekly gross

        income. Knisely was concerned with how to treat a one-time payment in

        settlement for an injury which left the father permanently disabled and unable

        to work. Here, despite the serious injuries Scott sustained several years before

        the marriage, he holds a steady job earning a weekly income of approximately

        $450 per week in addition to his monthly structured settlement payments.

        Although Knisely held the trial court did not abuse its discretion in considering

        the one-time payment when calculating the father’s child support obligation, it

        appears the father may have had no other means of supporting his children.

        Further, the opinion does not parse how the trial court calculated the father’s

        weekly income based upon the settlement amount. So although Knisely stands

        for the general proposition that it is not an abuse of discretion to consider some

        part of a lump-sum settlement in determining a party’s child support obligation,

        it does not specifically help us determine whether the trial court in this case

        erred in how it handled Scott’s structured settlement payments.

[3]     We are concerned with determining Scott’s weekly gross income. “Income” is

        defined as “[t]hat which comes in as the periodical produce of one’s work,

        business, lands, or investments . . . .” Oxford English Dictionary, OED Online,

        http://www.oed.com/view/Entry/93645?rskey=tQFSVL&result=1#eid.

        Personal injury settlements may include an income-replacement component,

        but there is no indication that the entire settlement in this case was for that


        Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015   Page 18 of 20
        purpose. In fact, Scott is able to and does work a regular job, at least currently.

        But personal injury settlements are also intended to reimburse past and future

        medical expenses, disability, pain and suffering, caretaking, and other

        extraordinary expenses arising from an injury. Scott testified that he suffered a

        severe head injury which impacts his memory and leaves him at greater risk for

        developing Alzheimer’s, Parkinson’s, or dementia in the future, tr. at 45, and

        injuries to his leg and arm which restrict his physical activities, id. at 6-7. In

        addition, he is currently undergoing occupational therapy several times a week

        for which he pays directly. Id. at 62-63. To date, none of his structured

        settlement proceeds have been set aside for his future medical care or

        retirement. Id. at 40. Other courts which have addressed similar situations have

        taken the position that only those portions of a personal injury settlement that

        are meant to compensate for lost wages or future wage loss are “income” for

        child support purposes even under an expansive definition of “income.” See,

        e.g., Villanueva v. O’Gara, 668 N.E.2d 589, 592-96 (Ill. Ct. App. 1996)

        (interpreting Illinois’s statutory definition of net income for child support

        purposes, Ill. Comp. Stat. 5/504 (net income is “the total of all income from all

        sources”), and holding it was error for the trial court to include the entire

        personal injury settlement amount in the child support calculation; also citing

        cases from several other jurisdictions deciding this issue).

[4]     Scott earns a weekly wage from employment, and I therefore do not necessarily

        think the trial court would have abused its discretion in excluding the structured

        settlement payments from a calculation of Scott’s weekly gross income had it


        Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015   Page 19 of 20
        not based that exclusion solely on the Internal Revenue Code definition of gross

        income. As the majority notes, the Internal Revenue Code is not the standard

        for determining weekly gross income for child support purposes, see slip op. at ¶

        13 (quoting Child Supp. G. 3(A), cmt. 2(b) that the weekly gross income figure

        may not be the same as gross income for tax purposes). It may be unfair to

        exclude all of the settlement proceeds where they have inured to the family’s

        benefit in the past but it may also be unfair to include all of the proceeds where

        Scott has need of them for his own care. Commentary to Guideline 3(A) urges

        judges to “be innovative in finding ways to include income that would have

        benefited the family had it remained intact, but be receptive to deviations where

        reasons justify them.” Child Supp. G. 3(A), cmt. 2(b); see also Harris, 800

        N.E.2d at 940-41 (holding the trial court did not abuse its discretion in

        including only the net amount of settlement proceeds from a wrongful

        termination lawsuit because that is the amount that “would have ultimately

        benefited the children if the family had remained intact.”).

[5]     Because the trial court’s decision was based on an improper legal standard, and

        subject to the caveat that the trial court should have the leeway on remand to

        make an “innovative” determination regarding the inclusion or exclusion in

        whole or in part of Scott’s structured settlement payments, I concur in result as

        to the child support issue. As to the remainder of the opinion, I concur in full.




        Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015   Page 20 of 20
