                                                                 FILED
                                                            Mar 27 2017, 6:06 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Maria Matters                                              Jeffery Marc Leeper
      Maria Matters Attorney at Law LLC                          Indianapolis, Indiana
      Indianapolis, Indiana




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Mark H. Miller, II,                                        March 27, 2017
      Appellant-Respondent,                                      Court of Appeals Case No.
                                                                 49A02-1604-DR-817
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      Leigh Anne Miller,                                         The Honorable Patrick J. Dietrick,
      Appellee-Petitioner                                        Judge
                                                                 The Honorable Caryl Dill,
                                                                 Magistrate
                                                                 Trial Court Cause No.
                                                                 49D12-1409-DR-29640



      Crone, Judge.


                                              Case Summary
[1]   Mark H. Miller, II (“Father”), appeals the decree dissolving his marriage to

      Leigh Anne Miller (“Mother”). He contends that the trial court clearly erred in

      finding that he is voluntarily underemployed, given that his decision to enroll as

      Court of Appeals of Indiana | Opinion 49A02-1604-DR-817 | March 27, 2017               Page 1 of 11
      a part-time college student and forgo full-time employment was made with

      Mother’s agreement during the marriage. He also argues that the trial court

      erred in imputing income to him where there was no evidence on two of the

      four factors required to determine imputed income.


[2]   We conclude that the trial court did not clearly err in finding that Father is

      voluntarily underemployed where he was simultaneously the children’s primary

      caregiver and a part-time college student during the marriage, but he is now no

      longer the children’s primary caregiver. However, we conclude that the trial

      court determined Father’s imputed income without evidence of prevailing job

      opportunities and earnings levels in the community, and therefore a hearing is

      necessary for the trial court to hear evidence on these factors. Accordingly, we

      affirm in part, reverse in part, and remand.


                                   Facts and Procedural History1
[3]   Father and Mother were married in 1999. They had four children, born

      between 2004 and 2011. After the first child was born, Mother stopped

      working and was the primary caregiver of the children until December 2009,

      when she obtained full-time employment. In April 2010, Father lost his job as

      an insurance agent, earning a base salary of $36,000 per year plus commissions.

      Tr. at 20. Thereafter, Father became the primary caregiver of the children.




      1
       Father’s appellant’s appendix includes copies of exhibits and portions of the transcript in contravention of
      Indiana Appellate Rule 50(F). It also needlessly includes motions and orders filed in the Court of Appeals.
      See Ind. Appellate Rule 50(A)(2) (specifying contents of appellant’s appendix).

      Court of Appeals of Indiana | Opinion 49A02-1604-DR-817 | March 27, 2017                           Page 2 of 11
      Father did laundry and grocery shopping, cooked all the meals, took the

      children to school and the doctor, and helped them with their homework.

      Father and Mother decided that Father should go to college. In the fall of 2010,

      Father enrolled as a part-time student at IUPUI to pursue a mechanical

      engineering degree.


[4]   In the spring of 2014, Father moved out of the marital residence. In September

      2014, Mother filed a petition for dissolution. At the time of the final hearing,

      Father was going to college part time (taking eleven credit hours), working

      fifteen hours a week at his father’s cleaning business, and living with and

      sharing expenses with his girlfriend. Id. at 11, 16, 22.


[5]   Following a hearing, in February 2016, the trial court issued the dissolution

      decree, which provides in relevant part as follows:


              8. Father lost his job in April 2010. He has been voluntarily
              unemployed or underemployed since. The parties agreed that he
              would go to school beginning in the fall of 2010. He has been
              pursuing an Engineering De[g]ree at IUPUI. However, he is not
              enrolled as a full time student.


              ….


              20. Father testified his income is $250 per week for 15 hours per
              week working for his father. He imputed minimum wage of $290
              for child support purposes. The Court has already determined
              that he is underemployed.


              ….


      Court of Appeals of Indiana | Opinion 49A02-1604-DR-817 | March 27, 2017   Page 3 of 11
        23. The Court finds it is reasonable to impute income to Father
        at the rate of $600.00 per week based on his prior earning level at
        Farm Bureau [Insurance] and the fact that he is voluntarily under
        employed. The court did not consider imputing income from any
        other source of prior employment. There is no evidence that any
        of Father’s prior business concerns are operational or generating
        income.


        ….


        57. Here the parties mutually decided, well prior to the filing of
        dissolution, that Father would attend school and Mother would
        be the primary breadwinner. However, according to Father’s
        testimony, he contributed substantially toward the support and
        maintenance of the children and the household by applying the
        proceeds of his student loans to those expenses.


        58. Per the [Indiana Child Support] Guidelines, potential
        income shall be determined using employment potential and
        probable earnings level based on the obligor’s work history,
        occupational qualifications, prevailing job opportunities, and
        earnings levels in the community. Child Supp. G. 3(A)(3).


        59. It is proper to impute income to Father at his prior earning
        level since he is no longer the stay at home parent.


        ….


        65. Although there is presently a disparity in the parties’ earning
        levels, Father has a prior work history and the ability to earn an
        income comparable to that of Mother even without his degree.
        He is not attending school full time and has the ability to obtain
        full time employment.



Court of Appeals of Indiana | Opinion 49A02-1604-DR-817 | March 27, 2017     Page 4 of 11
                ….


                IT IS THEREFORE ORDERED, ADJUDGED AND
                DECREED ….


                ….


                Father is ordered to pay child support in the amount of $97.00
                per week plus $23.00 per week on the accrued arrearage of
                $6,111.00 by income withholding until paid in full. In addition,
                he is ordered to pay $500.00 toward the arrearage from his tax
                refund each year.


      Appellant’s App. at 21-31.


[6]   Father filed a motion to correct, which the trial court denied. 2 This appeal

      ensued.


                                        Discussion and Decision
[7]   Father challenges the trial court’s finding that he is voluntarily underemployed

      and its decision to impute potential income to him based on his former salary as

      a full-time insurance agent. Initially, we note that the trial court entered

      findings of fact and conclusions thereon sua sponte.

                Sua sponte findings only control issues that they cover, while a
                general judgment standard applies to issues upon which there are
                no findings. We may affirm a general judgment with findings on
                any legal theory supported by the evidence. As for any findings


      2
          The motion and order are not included in the record on appeal.

      Court of Appeals of Indiana | Opinion 49A02-1604-DR-817 | March 27, 2017     Page 5 of 11
              that have been made, they will be set aside only if they are clearly
              erroneous. A finding is clearly erroneous if there are no facts in
              the record to support it, either directly or by inference.


      Eisenhut v. Eisenhut, 994 N.E.2d 274, 276 (Ind. Ct. App. 2013) (citations

      omitted). Also, because we are dealing with family law matters, our review is

      conducted with “‘a preference for granting latitude and deference to our trial

      judges.’” Kicken v. Kicken, 798 N.E.2d 529, 532 (Ind. Ct. App. 2003) (quoting

      In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). We will reverse a

      trial court’s decision 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).


        Section 1 – The trial court did not clearly err in finding that
                   Father is voluntarily underemployed.
[8]   The Indiana Child Support Guidelines (“the Guidelines”) provide,


              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. 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.


      Ind. Child Support Guideline 3(A)(3). “Potential income may be determined if

      a parent has no income, or only means-tested income, and is capable of earning

      income or capable of earning more.” Id. cmt 2c. “But the Guidelines do not

      require or encourage parents to make career decisions based strictly upon the
      Court of Appeals of Indiana | Opinion 49A02-1604-DR-817 | March 27, 2017   Page 6 of 11
      size of potential paychecks, nor do the Guidelines require that parents work to

      their full economic potential.” Sandlin v. Sandlin, 972 N.E.2d 371, 375 (Ind. Ct.

      App. 2012). “Obviously, a great deal of discretion will have to be used in this

      determination.” Ind. Child Support Guideline 3(A)(3), cmt 2c.


[9]   Father first asserts that the trial court’s finding that he is voluntarily

      underemployed is clearly erroneous because he has a legitimate reason for

      working less than full time and Mother “presented no evidence that [he]

      consciously reduced his income in order to avoid child support.” Appellant’s

      Br. at 6. He cites Trabucco v. Trabucco, 944 N.E.2d 544 (Ind. Ct. App. 2011), for

      the notion that “[w]here a parent is unemployed or underemployed for a

      legitimate purpose other than avoiding child support, there are no grounds for

      imputing potential income.” Id. at 550. However, in Pickett, we concluded that

      the Trabucco statement was overbroad and unsupported by the Guidelines, and

      we rejected the notion that income may be imputed only if the trial court finds

      that a parent has purposely reduced his or her income to avoid child support.

      44 N.E.3d at 766. We explained as follows:

              One purpose of potential income is to discourage a parent from
              taking a lower paying job to avoid the payment of significant
              support. [Ind. Child Support Guideline 3(A)(3), cmt 2c.] On
              some occasions, this Court has rephrased this principle as
              follows, “A trial court has wide discretion with regard to
              imputing income to ensure the child support obligor does not
              evade his or her support obligation.” Miller v. Sugden, 849 N.E.2d
              758, 761 (Ind. Ct. App. 2006), trans. denied; see also Kondamuri v.
              Kondamuri, 852 N.E.2d 939, 950 (Ind. Ct. App. 2006) (“The trial
              court has discretion to impute potential income to a parent if it is

      Court of Appeals of Indiana | Opinion 49A02-1604-DR-817 | March 27, 2017     Page 7 of 11
        convinced the parent’s underemployment ‘has been contrived for
        the sole purpose of evading support obligations.’”) (quoting In re
        Marriage of Turner v. Turner, 785 N.E.2d 259, 265 (Ind. Ct. App.
        2003)); Apter v. Ross, 781 N.E.2d 744, 761 (Ind. Ct. App. 2003)
        (“With regards to imputing income, the trial court enjoys wide
        discretion to ensure the child support obligor does not evade his
        support obligation.”), trans. denied.[3] We caution that this
        rephrasing should not be interpreted to mean that potential
        income may not be imputed unless the court finds that the parent
        is avoiding the payment of significant child support. While the
        Guidelines clearly indicate that a parent’s avoidance of child
        support is grounds for imputing potential income, it is not a
        necessary prerequisite. For example, the relevant commentary
        states, “When a parent is unemployed by reason of involuntary
        layoff or job termination, it still may be appropriate to include an
        amount in gross income representing that parent’s potential
        income.” Ind. Child Support Guideline 3(A)(3), cmt 2c(4).
        Thus, 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.4




3
  The case cited by Father contains nearly identical language: “[T]he Guidelines give the trial court wide
discretion to impute potential income to a parent when the court is convinced that the parent’s
unemployment or underemployment has been contrived for the sole purpose of evading support obligations.”
Homsher v. Homsher, 678 N.E.2d 1159, 1164 (Ind. Ct. App. 1997) (citing Gilpin v. Gilpin, 664 N.E.2d 766, 767-
68 (Ind. Ct. App. 1996)).
4
  Father also contends that “‘the concept of “voluntary unemployment or underemployment” as used in the
Guidelines requires both the ability to earn more income and the conscious choice on the part of a parent to
reduce income.’” Appellant’s Br. at 5-6 (quoting Lambert v. Lambert, 861 N.E.2d 1176, 1180 (Ind. 2007)).
However, the Lambert court addressed whether potential income was properly imputed to an incarcerated
parent and was referring to a particular example in the commentary to the Guidelines. 861 N.E.2d at 1180.
In any event, there is no dispute that Father consciously decided to enroll in college and suspend full-time
employment and therefore consciously decided to reduce his income.



Court of Appeals of Indiana | Opinion 49A02-1604-DR-817 | March 27, 2017                         Page 8 of 11
[10]   Father further argues that the trial court’s finding that he is underemployed is

       clearly erroneous because his financial circumstances have not changed since

       the fall of 2010 when he enrolled in college. He relies on Scoleri v. Scoleri, 766

       N.E.2d 1211 (Ind. Ct. App. 2002), for the proposition that “[t]here is no basis

       for determining that a parent is underemployed when the level of his or her

       earnings has remained relatively constant for a number of years.” Id. at 1219

       (citing Matter of Paternity of Buehler, 576 N.E.2d 1354 (Ind. Ct. App. 1991)); see

       also Apter, 781 N.E.2d at 764 (using same language); Carmichael v. Siegel, 754

       N.E.2d 619, 626 (Ind. Ct. App. 2001) (same). In our view, the Scoleri court

       oversimplified Buehler. In Buehler, this Court concluded that the trial court erred

       in finding that the father was underemployed and imputing income to him

       where he had operated his own photography studio since he graduated from

       college and had been in the photography business throughout his ten-year

       relationship with the mother. 576 N.E.2d at 1355. Specifically, the Buehler

       court stated,

               It is not our function here to approve or disapprove of the
               lifestyle of these parties or their career choices and the means by
               which they choose to discharge their obligations in general. It is
               clear from the record that during a relationship which endured
               for about ten years and resulted in the birth of the child in
               question the father did [make a lifestyle and career choice] and
               earned relatively the same as at the time of trial. There was no
               basis therefore for a determination that he was underemployed
               for the purpose of determining his support obligation.


       Id. Thus, it was not simply that the father’s income level remained relatively

       constant for several years; he made his lifestyle and career choice before or
       Court of Appeals of Indiana | Opinion 49A02-1604-DR-817 | March 27, 2017      Page 9 of 11
       shortly after he began his relationship with the mother and worked in that

       profession throughout the relationship.


[11]   Here, the trial court found, and Father does not dispute, that when Father

       started college as a part-time student in the fall of 2010, he also became the

       children’s primary caretaker. At the time of the final hearing, he was still a

       part-time student, but he is no longer the children’s primary caretaker. A

       reasonable inference can be drawn that the time Father spent in his caretaking

       function is now available for other purposes, yet he is working only fifteen

       hours a week. We conclude that the trial court did not clearly err in finding

       that Father is voluntarily underemployed for purposes of child support and

       therefore we affirm that portion of the dissolution decree.


          Section 2 – The trial court determined Father’s imputed
        income without evidence of prevailing job opportunities and
                     earnings levels in the community.
[12]   Father contends that the trial court clearly erred in imputing income to him of

       $600 per week. As previously noted, “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.” Ind. Child Support

       Guideline 3(A)(3). Here, in determining Father’s potential income, the trial

       court properly considered Father’s work history and occupational

       qualifications. However, Father contends that there is no evidence in the

       record regarding prevailing job opportunities and earnings levels in the

       Court of Appeals of Indiana | Opinion 49A02-1604-DR-817 | March 27, 2017   Page 10 of 11
       community. In her appellee’s brief, Mother asserts that the trial court properly

       considered Father’s work history and abilities but fails to cite evidence in the

       record regarding prevailing job opportunities and earnings levels in the

       community. Accordingly, we reverse the portion of the trial court’s order

       imputing $600 per week to Father and remand for an evidentiary hearing on

       these two factors. If, after hearing evidence on all four factors, the trial court

       determines that a revision of Father’s imputed income is proper, the trial court

       may exercise its discretion to reevaluate and adjust other determinations

       regarding child support in the dissolution decree.


[13]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1604-DR-817 | March 27, 2017   Page 11 of 11
