Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                                Dec 11 2013, 9:28 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEY FOR APPELLEE:

DAN J. MAY                                         CRAIG PERSINGER
Kokomo, Indiana                                    Marion, Indiana




                                 IN THE
                       COURT OF APPEALS OF INDIANA

IN RE THE PATERNITY OF:                            )
L.M.J. b/n/f                                       )
                                                   )
D.R.D.,                                            )
                                                   )
          Appellant-Respondent,                    )
                                                   )
                 vs.                               )        No. 34A02-1305-JP-458
                                                   )
C.A.J.,                                            )
                                                   )
          Appellee-Petitioner.                     )


             INTERLOCUTORY APPEAL FROM THE HOWARD CIRCUIT COURT
                     The Honorable Thomas C. Perrone, Special Judge
                             Cause No. 34C01-9507-JP-72



                                        December 11, 2013


                   MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                   CASE SUMMARY

       Appellant-Respondent D.R.D. (“Mother”) and Appellee-Petitioner C.A.J. (“Father”)

are the parents of L.M.J. (“Daughter”). In 1998, the trial court issued an order (the “1998

Order”) regarding the support of Daughter. Under the terms of the 1998 Order, Father was

obligated to pay $94.00 weekly in child support. Father was also obligated to pay additional

child support when certain conditions were met. In October of 2011, Mother filed a motion

for a rule to show cause, claiming that Father had failed to pay child support beyond his

$94.00 weekly obligation pursuant to the terms of the 1998 Order. Mother appeals following

the denial of her request for summary judgment on this issue. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       Mother and Father are the parents of Daughter who was born on October 3, 1994. In

an order dated July 10, 1998, the trial court determined that Father’s weekly gross income

was $448.00. Based on this weekly gross income, the trial court ordered Father to pay child

support in the amount of $94.00 weekly. The trial court also recognized that Father had a

history of earning additional income due to overtime opportunities and bonuses, and set forth

certain conditions under which Father would become obligated to pay additional child

support.

       On October 25, 2011, Mother moved for a rule to show cause, claiming that Father

had failed to pay child support beyond his $94.00 weekly obligation pursuant to the terms of

the 1998 Order. Mother subsequently filed a motion seeking summary judgment on her

motion for a rule to show cause. On November 14, 2012, the trial court heard argument from



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the parties regarding Mother’s summary judgment request. At the conclusion of the hearing,

the trial court took the matter under advisement.

       On February 26, 2013, the trial court issued an order denying Mother’s request for

summary judgment. In doing so, the trial court stated that it was “not persuaded by

[Mother’s] interpretation of [the 1998 Order] and submission of how to do the calculation of

the support due.” Appellant’s App. pp. 18-19. The trial court further stated that “an

additional hearing is needed to determine the proper amounts to be included in a calculation

of overtime opportunities and/or bonuses.” Appellant’s App. p. 19. Mother subsequently

sought, and was granted, permission to bring the instant interlocutory appeal.

                             DISCUSSION AND DECISION

       Mother contends that the trial court erroneously denied her motion for summary

judgment.

       Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary
       judgment is appropriate when there are no genuine issues of material fact and
       when the moving party is entitled to judgment as a matter of law. When
       reviewing a decision to grant summary judgment, this court applies the same
       standard as the trial court. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702,
       705 (Ind. Ct. App. 1999). We must determine whether there is a genuine issue
       of material fact requiring trial, and whether the moving party is entitled to
       judgment as a matter of law. Id. Neither the trial court nor the reviewing court
       may look beyond the evidence specifically designated to the trial court. Id.
               A party seeking summary judgment bears the burden to make a prima
       facie showing that there are no genuine issues of material fact and that the
       party is entitled to judgment as a matter of law. American Management, Inc. v.
       MIF Realty, L.P., 666 N.E.2d 424, 428 (Ind. Ct. App. 1996). Once the moving
       party satisfies this burden through evidence designated to the trial court
       pursuant to Trial Rule 56, the non-moving party may not rest on its pleadings,
       but must designate specific facts demonstrating the existence of a genuine
       issue for trial. Id.



                                              3
Heritage Dev. of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 887-88 (Ind. Ct.

App. 2002). Upon review of a trial court’s denial of a motion for summary judgment, this

court stands in the shoes of the trial court and considers only those materials properly

designated before the trial court pursuant to Trial Rule 56. Kroger Co. v. Plonski, 930

N.E.2d 1, 6 (Ind. 2010). The party appealing the trial court’s denial of summary judgment

bears the burden of persuading us that the trial court erred. New Albany-Floyd Cnty. Educ.

Ass’n v. Ammerman, 724 N.E.2d 251, 256 (Ind. Ct. App. 2000).

       In challenging the trial court’s denial of her motion for summary Judgment, Mother

claims that the language of the 1998 Order is unambiguous. Mother also claims that the only

reasonable interpretation of the language of the 1998 Order was that proffered by Mother,

and that by rejecting Mother’s proffered interpretation, the trial court impermissibly modified

the 1998 Order. We disagree.

       Although, like a divorce decree, an order establishing a parent’s child support

obligation may be considered final, in the case of an alleged ambiguity, we must interpret the

order as we do any other contract. See Overholtzer v. Overholtzer, 884 N.E.2d 358, 361 (Ind.

Ct. App. 2008).

       The interpretation and construction of contract provisions is a function for the
       courts. On appeal, our standard of review is essentially the same as that
       employed by the trial court. Unless the terms of a contract are ambiguous, they
       will be given their plain and ordinary meaning. Niccum v. Niccum, 734 N.E.2d
       637, 639 (Ind. Ct. App. 2000). The terms of a contract are not ambiguous
       merely because controversy exists between the parties concerning the proper
       interpretation of terms. Id. Where the terms of a contract are clear and
       unambiguous, the terms are conclusive and we will not construe the contract or
       look at extrinsic evidence, but will merely apply the contractual provisions. Id.



                                              4
Id. Furthermore, when trying to ascertain the intent of the parties, the court will read the

contract as a whole and will make all attempts to construe the language in the contract so as

not to render any words, phrases, or terms ineffective or meaningless. The Winterton, LLC v.

Winterton Investors, LLC, 900 N.E.2d. 754, 759 (Ind. Ct. App. 2009), trans. denied. “The

court must accept an interpretation of the contract that harmonizes its provisions rather than

one that causes the provisions to conflict.” Id.

       Here, the relevant portions of the 1998 Order read as follows:

              5.      The Court finds that [Father’s] child support obligation herein
       should be and is herein modified to the sum of ninety-four dollars ($94.00) per
       week, which sum is determined by an application of the Indiana Child Support
       Guidelines to the following findings:
                      a.    [Father’s] weekly gross income based on a 40 hour work
       week is $448.00[.]
       …
              7.      The Court further finds that [Father] has a history of earning
       additional income due to overtime opportunities and/or bonuses, and that in
       addition to his regular weekly support of $94.00 per week, he shall pay
       additional sums for support on a periodic basis. Said additional sums shall be
       calculated as follows: 15% of [his] gross income in excess of $448.00 per
       week. Said additional support shall be paid no less than quarterly, with
       payment due for the preceding quarter within ten (10) days of January 1, April
       1, July 1, and October 1 of each year.

Appellant’s App. pp. 21-22.

       Mother argues that paragraph seven provides that Father was required to pay

additional child support in the amount of 15% of all gross income in excess of $448.00,

irrespective of how said gross income was earned. Mother’s argued interpretation of Father’s

child support obligation would require the court to read the provisions of paragraph seven

separately, as opposed to as a whole. This we should not do. Again, in trying to interpret



                                              5
contractual language, this court reads the document as a whole and attempts to construe the

language therein so as not to render any words, phrases, or terms ineffective or meaningless.

See Winterton, 900 N.E.2d at 759. In doing so, we accept the interpretation of the document

that harmonizes its provisions rather than cause them to be in conflict. Id.

       Reading all relevant portions of the 1998 Order together, we are convinced that the

additional support obligation set forth in the 1998 Order is dependent upon additional gross

income that was earned through “overtime opportunities and/or bonuses.” Appellant’s App.

p. 21. The first sentence of paragraph seven explicitly states that Father “has a history of

earning additional income due to overtime opportunities and/or bonuses, and that in addition

to his regular weekly support of $94.00 per week, he shall pay additional sums for support on

a periodic basis.” Appellant’s App. pp. 21-22. The court used the word “and” to connect the

explanation of how Father earned the additional income to its statement he shall pay

additional support on a periodic basis. This connection leads to the reasonable interpretation

that the trial court intended to base the additional child support obligation upon the earning of

additional income through overtime opportunities and bonuses.

       The second sentence of paragraph seven goes on to state that “[s]aid additional sums

shall be calculated as follows: 15% of [his] gross income in excess of $448.00 per week.”

Appellant’s App. p. 22. The second sentence clearly refers back to the first sentence. As

such, when read together, these sentences indicate that Father’s obligation to pay additional

child support was dependent upon his earning additional gross income through “overtime

opportunities and/or bonuses.” Appellant’s App. p. 21. Acceptance of Mother’s contrary



                                               6
interpretation would, in effect, amount to a retroactive modification of the 1998 Order

through an unreasonable interpretation of the language.

       Because we conclude that the 1998 Order, when read as a whole, indicates that

Father’s obligation to pay additional child support is dependent upon his earning additional

gross income through bonuses and/or overtime opportunities, we conclude that the trial court

did not err in denying Mother’s request for summary judgment. Furthermore, it is important

to note that had Mother believed that Father’s base gross pay had increased at any time after

the 1998 Order went into effect, Mother could have raised the issue with the trial court by

requesting a modification of the 1998 Order. Mother, however, chose not to do so.

       The judgment of the trial court is affirmed.

MATHIAS, J., and PYLE, J., concur.




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