MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                           May 20 2016, 9:38 am

this Memorandum Decision shall not be                                 CLERK
regarded as precedent or cited before any                         Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Kristi L. Fox                                            Jeffrey K. Branstetter
Steven A. Gustafson                                      Blanton, Branstetter & Pierce, LLC
Fox Law Offices, LLC                                     Jeffersonville, Indiana
New Albany, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Carla S. Love,                                           May 20, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         22A01-1510-JP-1683
        v.                                               Appeal from the Floyd Circuit
                                                         Court
Mauricio Bellido,                                        The Honorable J. Terrence Cody,
Appellee-Respondent.                                     Judge
                                                         The Honorable Julie F. Flanigan,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         22C01-1109-JP-116



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 22A01-1510-JP-1683 | May 20, 2016       Page 1 of 13
[1]   Appellant-Petitioner Carla Love (“Mother”) filed a petition to modify Appellee-

      Respondent Mauricio Bellido’s (“Father”) child support obligation. The trial

      court denied Mother’s petition. Mother argues that the trial court (1) erred by

      considering her investment accounts as income, (2) abused its discretion in

      denying her petition for modification, and (3) erred by not ordering Father to

      pay a portion of the child’s uninsured medical expenses. We affirm the trial

      court’s decision to include Mother’s investment accounts as income and

      remand with instructions that the trial court (1) make additional findings or

      complete a child support worksheet and (2) determine what amount of

      uninsured medical expenses Father is obligated to pay.



                            Facts and Procedural History
[2]   Mother and Father have one child together, born March 14, 2006. Mother

      initiated a paternity action on September 20, 2011. On January 10, 2013, the

      trial court approved an agreed order which provided that Father would pay

      Mother $108 per week in child support. At the time of the 2013 order, both

      Mother and Father lived in the southern Indiana area. In March of 2014,

      Father accepted a higher-paying job in Washington, D.C.


[3]   On September 25, 2014, Mother filed a petition to modify Father’s child

      support obligation. On July 27, 2015, the trial court held a hearing on Mother’s

      petition. At the hearing, Mother was questioned about the nature of investment




      Court of Appeals of Indiana | Memorandum Decision 22A01-1510-JP-1683 | May 20, 2016   Page 2 of 13
      income in excess of $80,0001 which she listed on her 2014 tax return but did not

      include in the calculation of her weekly gross income on her child support

      obligation worksheet. Mother testified that her family set up an investment

      account for her retirement which was managed by a broker and the proceeds

      automatically reinvested. Mother did not know whether the investment

      account was an IRA, 401k, or some other type of account. Mother testified that

      she does not draw from her account for day-to-day expenses and withdrew

      $18,000 in 2014 to pay for the child’s medical expenses. The exact nature of the

      investment account was unclear from Mother’s testimony, including whether or

      not Mother could access account funds without permission.


[4]   On July 28, 2015, the magistrate denied Mother’s petition, finding that Mother

      “fail[ed] to present the complete nature and scope of income or potential

      income available to her.” Appellant’s App. p. 10. Mother filed a petition

      objecting to the magistrate’s ruling and seeking a final appealable order on her

      petition for modification. The trial court judge held a hearing on Mother’s

      petition for a final order and affirmed the magistrate’s ruling.



                                  Discussion and Decision




      1
        On Mother’s 2014 tax return, she listed the following as income: $17,680 in wages, $2,299 in taxable
      interest, $14,985 in dividends, and $64,976 in capital gains. (Ex. 2) Mother’s adjusted gross income was
      $97,147. (id)

      Court of Appeals of Indiana | Memorandum Decision 22A01-1510-JP-1683 | May 20, 2016             Page 3 of 13
[5]   On appeal, Mother argues that the trial court (1) erred by considering her

      investment accounts to be weekly gross income, (2) abused its discretion in

      denying her petition for modification, and (3) erred by not ordering Father to

      pay a portion of the child’s uninsured medical expenses.


                                        Standard of Review
[6]           In reviewing the trial court’s decision regarding the modification
              of child support, we reverse only for an abuse of discretion. In re
              Marriage of Kraft, 868 N.E.2d 1181, 1185 (Ind. Ct. App. 2007).
              An abuse of discretion occurs when the decision is clearly against
              the logic and effect of the facts and circumstances before the
              court, including any reasonable inferences therefrom. In re
              Paternity of E.M.P., 722 N.E.2d 349, 351 (Ind. Ct. App. 2000).
              Whether the standard of review is phrased as “abuse of
              discretion” or “clear error,” the importance of first-person
              observation and preventing disruption to the family setting
              justifies deference to the trial court. MacLafferty v. MacLafferty,
              829 N.E.2d 938, 940-41 (Ind. 2005).


      Holtzleiter v. Holtzleiter, 944 N.E.2d 502, 505 (Ind. Ct. App. 2011). Here, the

      trial court issued a general judgment, which we will affirm if sustainable on any

      legal theory consistent with the evidence. Id. “[W]e neither reweigh the

      evidence nor judge the credibility of witnesses and consider only the evidence

      most favorable to the judgment and all reasonable inferences drawn therefrom.

      Id.




      Court of Appeals of Indiana | Memorandum Decision 22A01-1510-JP-1683 | May 20, 2016   Page 4 of 13
                             I. Mother’s Investment Income
[7]   Mother argues that the trial court erred by imputing her retirement fund gains

      as income. Mother cites to Carmichael v. Siegel, in which we held that courts

      may not impute IRA earnings as income for the purpose of a parent’s child

      support obligation where there is no indication that previous withdrawals have

      been made to fund the parent’s living expenses. 754 N.E.2d 619, 629 (Ind. Ct.

      App. 2001); see also Ind. Child Support Guideline 3A, cmty. 2(e) (“The annual

      return of an IRA, 401(K) or other retirement plan that is automatically

      reinvested does not constitute income” unless “withdrawals…have been made

      to fund the parent’s lifestyle choices or living expenses.”). In reaching this

      result, we reasoned that “actual weekly gross income,” as contemplated by the

      Indiana Child Support Guidelines (“the Guidelines”), only includes earnings

      that are presently available to the parent “for his or her immediate use.” Id. at

      628.


[8]   In its order denying Mother’s petition, the trial court found that Mother

      “fail[ed] to present the complete nature and scope of income or potential

      income available to her.” Appellant’s App. p. 10. When questioned by the trial

      court at the modification hearing, Mother gave the following testimony

      regarding her investment account:


              Court: Is this money in an account somewhere that you hope to
              use someday in retirement and it’s sold by a broker?
              Mother: What my father set up for me.



      Court of Appeals of Indiana | Memorandum Decision 22A01-1510-JP-1683 | May 20, 2016   Page 5 of 13
              Court: Okay. It’s separate it’s not in – I know what you’re saying.
              It’s not in a savings account but it’s in a brokerage account?
              Mother: Yes.
              Court: And you – if you absolutely had to have it, um, you could
              get to it, is that correct?
              Mother: Yes, that’s correct.
              Court: Okay. What [Father’s counsel] is asking you is, is it held
              in a 401k or an IRA or some other vehicle that would not allow
              you to get to it before a certain age?
              Mother: Well, no, I don’t believe so your honor.
              …
              Court: [I]n order to determine what it is, we need to know what
              kind of account it is. So to your knowledge it is not in an IRA or
              a 401k or any of those tax vehicles?
              Mother: I don’t know your honor.


      Tr. pp. 25-26.


[9]   As evidenced by Mother’s admission, it is unclear what type of investment

      account Mother has. Mother made a substantial withdrawal in 2014 but it is

      unclear if that was permitted due to a medically-related hardship, or if Mother

      is free to withdraw from her account and is either unaware of this fact or simply

      chooses not to make withdrawals. In any case, the trial court made a factual

      determination that Mother “fail[ed] to present the complete nature and scope of

      income or potential income available to her.” Appellant’s App. p. 10. The trial

      court was thorough in its attempt to determine the nature of Mother’s

      investment account and we are in no better a position to make such a

      determination. Accordingly, Mother’s argument that we reverse the trial

      Court of Appeals of Indiana | Memorandum Decision 22A01-1510-JP-1683 | May 20, 2016   Page 6 of 13
       court’s factual finding amounts to an invitation to reweigh the evidence, which

       we cannot do. Carmichael, 754 N.E.2d at 634.


[10]   Mother argues that Father waived the imputed-income argument by failing to

       submit a child support worksheet. We must disagree. We are aware of no

       authority supporting Mother’s argument that the only manner in which to

       challenge another party’s income calculation is by filing a child support

       worksheet. The issue surrounding Mother’s investment income was repeatedly

       addressed during the modification hearing. We see no reason why

       subsequently declining to file a child support worksheet would waive an

       already-raised argument.


                            II. Modification of Child Support
[11]   Child support orders may only be modified


               (1) upon a showing of changed circumstances so substantial and
               continuing as to make the terms unreasonable; or
               (2) upon a showing that:
                        (A) a party has been ordered to pay an amount in child
                        support that differs by more than twenty percent (20%)
                        from the amount that would be ordered by applying the
                        child support guidelines; and
                        (B) the order requested to be modified or revoked was
                        issued at least twelve (12) months before the petition
                        requesting modification was filed.

       Ind. Code § 31-16-8-1. Mother argues that even including her investment

       income in the child support calculation, the increase in Father’s income still


       Court of Appeals of Indiana | Memorandum Decision 22A01-1510-JP-1683 | May 20, 2016   Page 7 of 13
       justifies a modification in his child support obligation because it would yield a

       change of greater than twenty percent.


[12]   Once the trial court decided not to exclude Mother’s investment income from

       the worksheet calculation, it suggested that it would craft a new worksheet

       using her total income. Mother submitted her 2014 tax return as evidence

       which showed that her adjusted gross income was $97,147. According to

       Mother’s calculation, using $97,147 for her income along with Father’s new

       income yields a weekly child support obligation of $157 for Father, which is

       approximately a 45% increase from his current obligation of $108. In making

       this calculation, Mother makes three significant assumptions: (1) Father is not

       entitled to a parenting time credit, i.e. the child would stay with him less than

       fifty-two days a year, (2) Father had no weekly work-related childcare expenses,

       and (3) Father’s bonus should be included in his weekly income. Child Supp.

       G. 6; Child Supp. Worksheet. However, each of these facts was disputed at the

       modification hearing.


[13]   Regarding work-related childcare expenses, Father testified that he incurred

       expenses in the amount of $270 a week for daycare. With regard to Father’s

       income, Mother calculated that Father’s weekly gross income is $1864. In

       reaching this figure, Mother included a bonus Father received from his

       employer that amounted to $158 a week. However, Father testified that this




       Court of Appeals of Indiana | Memorandum Decision 22A01-1510-JP-1683 | May 20, 2016   Page 8 of 13
       was a one-time bonus, as opposed to a recurring annual bonus, and so should

       not be considered in calculating his gross weekly income. 2


[14]   As for parenting time, there was evidence that Father would exercise time

       pursuant to the Indiana Parenting Time Guidelines.


                 Court: [Mother’s counsel] is correct almost in her numbers
                 because I come up with 7 times 7 is 49 days in the summer and 7
                 [days] of winter is 56 and then 9 days at spring break which
                 would be 65 days is what I come up with under the
                 guidelines….It’s just commentary but that’s all I really have
                 unless there’s been a real pattern.
                 Counsel for Mother: I mean, I want to leave it open – I agree
                 with you using that as a basis but I do want to leave it open to
                 rebuttal on what is actually been exercised.


       Tr. p. 35. When Mother was later asked how much parenting time she

       anticipated Father to exercise in the future, Mother was inconsistent, initially

       saying, “I believe we would go by the Indiana State Guidelines,” tr. p. 39, but

       later predicting that Father would not “have more than 51 overnights,” in a

       year. Tr. p. 54. As the trial court noted, the Indiana Parenting Time

       Guidelines recommend that Father, as the non-custodial parent, is entitled to

       take the child for a total of approximately sixty-five days throughout the year,

       which would entitle Father to a parenting time credit that would reduce his

       support obligation. Ind. Parenting Time Guidelines Section III, cmty. (C).




       2
           Aside from his bonus, Father did not dispute Mother’s calculation of his weekly gross income.


       Court of Appeals of Indiana | Memorandum Decision 22A01-1510-JP-1683 | May 20, 2016                 Page 9 of 13
[15]   The trial court did not complete a worksheet or make findings on the

       aforementioned contested factual issues. Additionally, Father did not file a

       worksheet which would provide us with guidance on what numbers the trial

       court could have used for these variables. We note that this court “[does] not

       condone [a] trial court’s decision to proceed without verified child support

       worksheets,” and “‘we strongly discourage such a practice and urge trial courts

       in the exercise of their discretion to require verified child support worksheets in

       every case. Failure to do so frustrates not only appellate review but also the

       goals of the child support guidelines.’” Hedrick v. Gilbert, 17 N.E.3d 321, 327

       (Ind. Ct. App. 2014) (quoting Butterfield v. Constantine, 864 N.E.2d 414, 417

       (Ind. Ct. App. 2007)).


[16]   Where the failure to complete a worksheet prevents this court from determining

       whether the trial court complied with the Guidelines, we will remand for

       clarification.

               While Child Supp. G. 3(B)(1) does state that the parties “shall”
               file a worksheet, it does not state the consequence of failing to file
               one. The dissent assumes such a failure prevents a trial court
               from entering a support award. A more logical assumption is that
               it prevents the non-complying party from challenging the income
               figures arrived at by the trial court.
               However, because the trial court did not award the amount
               calculated by Young, and made neither findings concerning the
               income it attributed to each party nor completed its own child
               support worksheet, we are unable to determine whether the court
               in fact complied with the child support guidelines. Thus, we must
               remand to the trial court for clarification of its award. If the trial
               court complied with the guidelines, it should enter findings or

       Court of Appeals of Indiana | Memorandum Decision 22A01-1510-JP-1683 | May 20, 2016   Page 10 of 13
               complete a child support worksheet, detailing how it arrived at
               the $110.00 amount. The findings or worksheet should contain
               the figures assigned for income, child care, health insurance
               premiums and credit for Dye’s support obligations to his other
               children as well as the percentage of support assigned to each
               parent. If the court deviated from the guidelines, it should enter
               findings or provide a worksheet demonstrating its calculations, as
               well as a written finding setting forth the factual basis for the
               deviation. Child Supp. G. 3(F)(2).


       Dye v. Young, 655 N.E.2d 549, 550-51 (Ind. Ct. App. 1995). Here, as in Dye, the

       trial court neither completed its own child support worksheet nor made findings

       concerning Father’s income, parenting time credit, child care costs, or the

       percentage of support assigned to each parent. As such, we are unable to

       determine whether the trial court complied with the Guidelines.


[17]   We note that while there may be evidence in the record which supports the

       denial of modification, we will not pick and choose to credit only that evidence

       when Father did not complete a worksheet and there is little or no indication of

       what evidence the trial court found credible or relied upon in reaching its

       decision. To do so would discourage the use of child support worksheets,

       incentivize trial courts to issue conclusory judgments, and ultimately vitiate this

       court’s ability to independently and accurately review those judgments. While

       trial courts are not always required to explain their reasoning, doing so is

       particularly important where, as here, there is a statutory formula which we can

       easily review. Therefore, we remand with instructions that the trial court make

       additional findings or complete a child support worksheet and, if applicable,

       explain why any deviations from the Guidelines are justified. See Beardsley v.
       Court of Appeals of Indiana | Memorandum Decision 22A01-1510-JP-1683 | May 20, 2016   Page 11 of 13
       Heazlitt, 654 N.E.2d 1178, 1182 (Ind. Ct. App. 1995) (“[A] trial court is required

       to articulate its reasons when its child support order deviates from the result

       which would have been reached under the guidelines.”).


                                       III. Medical Expenses
[18]   Mother argues that she is entitled to reimbursement by Father for the child’s

       uninsured medical expenses in 2014 and that the trial court erred in failing to

       order such reimbursement. The trial court made no mention of medical

       expense obligation in its order. The Guidelines provide as follows with regard

       to uninsured medical expenses:

               Ordinary uninsured health care expenses are paid by the parent
               who is assigned to pay the controlled expenses (the parent for
               whom the parenting time credit is not calculated) up to six
               percent (6%) of the basic child support obligation (Line 4 of the
               Child Support Obligation Worksheet). Extraordinary health care
               expenses are those uninsured expenses which are in excess of six
               percent (6%) of the basic obligation, and would include
               uninsured expenses for chronic or long term conditions of a
               child. Calculation of the apportionment of the health care
               expense obligation is a matter separate from the determination of
               the weekly child support obligation. These calculations shall be
               inserted in the space provided on the Worksheet.


       Child Supp. G. 7.


[19]   Initially, we note that Father made no arguments at the modification hearing as

       to why he would not be responsible for some portion of the child’s uninsured

       medical expenses, nor did he contest the validity or amount of any of the


       Court of Appeals of Indiana | Memorandum Decision 22A01-1510-JP-1683 | May 20, 2016   Page 12 of 13
       expenses submitted by Mother. On appeal, Father argues only that Mother’s

       calculation of his medical expense obligation is based on information outside

       the record on appeal. We disagree. At the modification hearing, Mother

       submitted records and receipts detailing the child’s 2014 uninsured medical

       expenses which amounted to $1,445.11. It appears that these expenses are far

       in excess of six percent of Father’s current yearly obligation and would entitle

       Mother to reimbursement of some portion thereof.3 Accordingly, we remand

       with instructions that the trial court determine what amount of uninsured

       medical expenses Father is obligated to reimburse Mother.


[20]   The judgment of the trial court is affirmed in part and remanded with

       instructions.


       Bailey, J., and Altice, J., concur.




       3
        While we cannot make exact determinations with the evidence available to us on appeal, we estimate that
       Father’s current yearly basic obligation is approximately $6,000, six percent of which is $360.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1510-JP-1683 | May 20, 2016          Page 13 of 13
