MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                   Jan 29 2016, 9:08 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Matthew J. McGovern                                      Robin R. Craig
Anderson, Indiana                                        Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re The Marriage Of:                                   January 29, 2016

Mark Steven Brown,                                       Court of Appeals Case No.
                                                         65A01-1502-DR-70
Appellant-Respondent,
                                                         Appeal from the Posey Circuit
        v.                                               Court
                                                         The Honorable Maurice
Julie Brown,                                             O’Connor, Special Judge
                                                         Trial Court Cause No.
Appellee-Petitioner.                                     65C01-1004-DR-104




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016     Page 1 of 21
[1]   Mark Steven Brown (“Father”) appeals from the trial court’s order modifying

      his weekly child support payment. Father raises two issues which we revise and

      restate as:


              I.       Whether the court’s findings regarding his weekly gross
                       income are clearly erroneous; and

              II.      Whether the court abused its discretion in ordering him to
                       pay attorney fees.

      We reverse and remand.


                                      Facts and Procedural History

[2]   Father and Julie Brown (“Mother”) were married in 1993 and have three

      children. The trial court entered a final decree in August 2010 dissolving the

      parties’ marriage which provided in part that the parties would have joint

      physical and legal custody of the children with each parent having custody

      approximately one-half of the time. The decree further provided that the parties

      agreed to equally provide the children’s living and extracurricular expenses,

      Father would maintain health insurance on the children as long as he is able to

      do so at a reasonable rate, the parties would equally divide any uninsured

      medical expenses, and that if Father is not able to obtain health insurance at a

      reasonable rate then the parties would split the costs of insurance premiums

      equally. The decree also provided that neither Mother nor Father would pay

      child support and that “[t]his is based on the fact that both parties make

      substantially the same income, that the parties are sharing equally parenting



      Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 2 of 21
      time and that the parties are also sharing equally any and all expenses

      associated with the minor children.” Appellant’s Appendix at 15.


[3]   On October 20, 2011, Mother filed a petition to modify child custody, parenting

      time, and support alleging there had been a substantial and continuing change

      in circumstances and requesting attorney fees. On November 14, 2011, Father

      filed a petition to modify requesting a hearing. In August 2012, Mother’s

      counsel sent Father a subpoena to produce “a copy of all of his taxes including

      all attachments for the years of 2009, 2010, and 2011, any exhibits that he plans

      to use in trial, his three most current pay stubs, any visitation log that he keeps,

      any bank loan applications, and the last 6 months bank statements.” Id. at 46.

      Father produced the first page of his bank statements for four months, including

      statements with the statement dates of April 12, May 13, June 13, and July 15,

      2012.


[4]   The court held modification hearings on October 11, 2012, and March 8 and

      13, 2013. The parties presented testimony and numerous exhibits related to a

      number of issues including the children’s activities and medical needs and the

      income and employment of Mother and Father. The evidence related to

      Father’s weekly gross income included certain tax records and bank statements

      and the testimony of Father, his business partner, and a union representative.


[5]   Jason Farmer testified that he and Father are the sole shareholders and sole

      employees of Precision Glass and Glazing Inc., that the business was started in

      2008, and that the business does commercial glass and glazing work. When


      Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 3 of 21
      asked his typical work schedule, Farmer replied “[u]sually 6:00 to 3:30” and

      stated “that’s our set schedule, Monday through Friday, that we actually work”

      and that “if there’s somethin’ goin’ on you don’t have to be there since we’re

      owners. But that’s our normal set schedule.” Transcript at 275. He stated that

      Father typically arrives later on Wednesday and Friday mornings due to having

      his children, that Father has had to leave early sometimes for different things,

      and when asked how many times a month Father rearranges his work schedule,

      Farmer stated “there’s definitely a good handful of times a month that he has to

      . . . maneuver different things for things that he’s got going on. Maybe a half

      dozen a month, just guessing.” Id. at 276. When asked if “you guys take off a

      little earlier on Friday afternoon,” Farmer testified “our attempt is to Fridays

      are half days. And it just really depends. It works out good sometimes, other

      times if we’re busy we work all day. So it’s really up and down. But it’s usually

      pretty flexible where we can get off early on Fridays.” Id. at 276-277. When

      asked “[i]n a typical month how often are you off on Friday afternoon,” Farmer

      replied “Oh, I would say usually probably three out of the four.” Id. at 277.

      When asked “[h]ow do you keep track of who worked how many hours,” he

      stated “[t]here’s really no reason to. It’s just the two of us.” Id. at 282.


[6]   Farmer further indicated that he and Father are members of a union, that their

      business adheres to the collective bargaining agreement of the union, and that

      there was a union pay scale. When asked the current union scale per hour for

      employees, Farmer answered “I believe it’s $28.00 somethin’.” Id. at 284.

      When asked “if [Father] sent an email to [Mother] saying that he normally has


      Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 4 of 21
      forty hours of work in before Friday ever roles [sic] around, would you agree

      with that or disagree,” Farmer replied “[k]inda depends, I mean, some days we

      work later than others, so . . . ,” and when asked “[w]ell if he said he usually

      has forty hours in before Friday . . .,” Farmer said “[i]f he said it, then I would

      say yes.” Id. at 284-285. When asked “[w]hen you do take off early on Friday

      if it’s not so busy, what time of the day do you leave,” Farmer replied “[w]e try

      to leave by noon,” and when asked “on the fourth Friday how long do you

      work,” he said “[i]t depends. It can be till 2:00, till 3:00 or 4:00. It really just

      depends.” Id. at 285. When asked “[i]s there ever weekend work,” Farmer

      replied “[s]ometimes, not very often.” Id. at 286.


[7]   Father testified that he and Mother filed a joint tax return in 2009 and his wages

      for that year were $6,000. He further testified that his income in 2010 was

      $40,257, his income in 2011 was $33,514,1 and that the average of those

      amounts is a pretty good representation of his annual income. The court

      admitted several of Father’s tax records, including the 2009 joint tax return with

      attachments and tax statements for 2010 and 2011. Father’s W-2 wage and tax

      statement for 2009 from Precision Glass and Glazing Inc. shows his wages were

      $6,000, the 2009 joint tax return shows income from a partnership of $16,704,

      and the attached Schedule E shows total income from Precision Glass and




      1
       The record does not contain Father’s 2011 tax return, but it does include his W-2 wage and tax statement
      for 2011 showing he received wages from his business of $1,500, and a completed State of Indiana estimated
      tax worksheet stating his total estimated income for 2011 as $39,691.

      Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016          Page 5 of 21
      Glazing Inc. of $16,704.2 Thus, according to the 2009 tax return, Father’s

      income in 2009 was $22,704. Father’s W-2 wage and tax statement for 2010

      shows that he received wages from Precision Glass and Glazing Inc. of $3,000

      in 2010, and his Schedule K-1 shows that he owned fifty percent of the business

      and that his ordinary business income for that year was $37,257. Thus,

      according to these tax statements, Father’s income in 2010 was $40,257.3


[8]   The court also admitted an affidavit of Eric Tasa, a business agent for Glaziers

      Local 1165, which stated that Father participates in the union as an owner, that

      Father pays dues of $33.50 per month and four percent of gross reported

      income from field work, and that income associated with office work or

      estimating work does not require payment of the four percent dues.


[9]   Father testified that the union requires that he and Farmer submit a minimum

      of twenty hours whether or not they “actually worked twenty hours on job

      sites” and that they “pay four percent of whatever [they] turn in,” which varies

      from month to month. Id. at 335. When asked if they typically submit just

      twenty hours, Father testified “[w]ell we weren’t so much in the beginning, but

      that’s what we’ve been basing it on now, unless we do actually work a lot of

      hours in the field” and that “[w]e weren’t real clear on what we had to do and




      2
       Schedule E shows nonpassive income of $21,158 and a Section 179 expense deduction of $4,454 from Form
      4562 which relates to depreciation and amortization.
      3
        When recalled at a later hearing held on May 1, 2014, and asked if he reported $31,818 as his income in
      2011 and $2,161 as his income in 2010, Father answered affirmatively. It is unclear why these amounts differ
      from his original testimony and the tax statements discussed above. Also at this hearing, when asked how
      much he reported as his income in 2013, Father answered “roughly $26,000.” Transcript at 591.

      Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016           Page 6 of 21
       how we had to report it, just being new.” Id. at 336. When asked his practice

       now, he answered: “Twenty hours unless we do work a lot of . . . I mean, most

       of the time it’s twenty hours.” Id.


[10]   Later, when asked the last time he made $71,000 a year as indicated in one of

       Mother’s worksheets,4 Father testified that he never made that much in a year.

       When asked his typical wage when he worked full-time for someone else,

       Father testified that he worked a lot of overtime one year and made $55,000

       and that the average was in the range of $40,000 to $45,000. Father agreed that

       the bank statement dated April 12, 2012, showed he had made four deposits

       which totaled approximately $5,277; the statement dated May 13, 2012 showed

       he had made four deposits which totaled $5,300; the statement dated June 13,

       2012 showed he had made four deposits which totaled $4,600; the statement

       dated July 15, 2012 showed he had made five deposits which totaled $5,066;

       and that all of the deposits came from his ownership of his business or his

       payroll.5 Father further agreed that the total of the deposits for the four-month

       period was $20,243, that four months covers about one-third of a year which is

       about seventeen weeks, and that this would correspond to an average weekly

       deposit of $1,190.




       4
        Mother’s Exhibits 1 and 2 contain child support worksheets which used figures for Father’s weekly gross
       income of $1,560 and $1,071, respectively.
       5
           The four bank statements together covered the period of March 13 through July 15, 2012.

       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016          Page 7 of 21
[11]   When asked “do you remember sending . . . an email acknowledging to

       [Mother] that you usually have your forty hours in before Friday,” Father

       replied “[y]es.” Id. at 480. When later asked “[w]hen you say you have your

       forty hours in, are those all hours that you can bill clients for,” Father

       responded “[a]bsolutely not” and testified: “If we’re not physically on a job

       doing a job, it’s not a billable job. So if I’m in the office, as this week I’ve been

       in the office all week, no billable work. But I’ve been there all week.” Id. at

       509. He indicated that there are months which are busier than others, and

       when asked “[a]nd these three months, April, May, would you consider those

       to be busy months,” Father answered “[s]ince we’ve been in business, that time

       of year has been about the busiest time of year.” Id. When asked if there are

       other months where his income is dramatically reduced, he answered

       affirmatively and stated that, since he started the business, he has had weeks

       where he had no paycheck and that the four months were not representative of

       a typical month. Father further indicated that his income tax returns were the

       most reflective of his income “overall throughout the year.” Id. at 510. When

       asked what he would earn working for another employer, Father said he did not

       know an exact amount but “would say it would probably be in the range of

       high $40,000.00, $50,000.00, somewhere in that range.” Id. Father also

       testified that his business did not provide him with a car or lodging or reimburse

       any of his meals.


[12]   The court also heard testimony from Eric Tasa that a collective bargaining

       agreement governs pay rates and that the wage for union workers is $26.78 per


       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 8 of 21
       hour, and time-and-a-half for any hours over forty hours a week. Tasa

       indicated that an owner/operator is not required to report all hours to the

       union. When asked if there were any rules with the union regarding how many

       hours must be reported, he stated: “Not that I can recall right now. There may

       be a guideline somewhere. I think at one timei [sic] was told it might be twenty

       hours. But I’m not exactly sure on that.” Id. at 560. When asked “[s]o if I’m

       an owner/operator I could work sixty hours and pay myself for twenty-five,”

       Tasa answered “[c]orrect.” Id. When asked “[s]o I could voluntarily choose to

       treat myself worse than I treat my employees,” Tasa replied affirmatively, and

       when asked “if I’m running a profitable business I’m gonna make it up in

       dividends or other ways,” he answered “I suppose. I don’t know how our

       business partners pay themselves.” Id. at 561.


[13]   Tasa also indicated that union glaziers are not guaranteed forty hours a week

       for fifty-two weeks a year, that work had been very slow for the last two or three

       years and consequently the union lost quite a bit of membership, and that he

       noticed work had started to pick up around the beginning of 2014. When asked

       “$26.78 [] sounds like a pretty good wage, but you’re not guaranteed forty

       hours a week,” Tasa testified “[c]orrect. And that’s one of the reasons why we

       try to negotiate [a] good wage,” and when asked “[y]ou’re not workin’ year

       round,” he said “[r]ight. At least some of the people aren’t.” Id. at 563. Tasa

       stated he was not sure of the current average pay for a union glazier but that it

       could be between $40,000 and $50,000 depending on how much work is out

       there.


       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 9 of 21
[14]   On May 1, 2013, Mother filed a submission of attorney fees which included an

       attached detailed billing statement showing a total billable amount of

       $12,635.64, and the court held additional hearings on August 26, 2013, and

       May 1, 2014. The parties introduced or filed several proposed child support

       worksheets. Father submitted three child support worksheets which used a

       figure of $680.48 as his weekly gross income to calculate his weekly support

       obligation. Mother submitted one worksheet which used $1,560 as Father’s

       weekly gross income and a second worksheet which used $1,071. Her counsel

       stated that the figure in the first worksheet showed Father’s income based on

       the hours he is actually working and that the amount coincides with Father’s

       bank statement deposits, and that the figure in the second worksheet was

       Father’s union rate for forty hours a week. Following the hearings, the parties

       filed proposed orders.


[15]   On January 23, 2015, the trial court entered an order that Mother have primary

       physical custody of the three children, that Father have certain parenting time,

       and that Father pay child support in the weekly amount of $313.09 based on a

       weekly income of $693 per week for Mother and $1,560 per week for Father.

       The court found that Mother had voluntarily given up a position with a former

       employer and $693 per week represented the higher of her 2010 and 2011

       average earnings.


[16]   With respect to Father’s weekly income, the court found that Father’s current

       hourly rate is “twenty-eight something,” an hour, that “$28.00 an hour at 40

       hours a week would be $1,120.00 earned income,” and that “[a]n additional 10

       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 10 of 21
       hours a week overtime would be an additional $420.00 per week of earned

       income. . . .” Appellant’s Appendix at 158. The court also found that, doing

       the same work Father is doing now, working for any other employer in the

       union, he would be earning $1,560, but he earns substantially less because he

       chooses to continue working for himself and only pays himself for part of the

       work he performs. The court noted that Father received dividends throughout

       the year, that his bank statements indicate he “deposited a total of $20,243.56 of

       payroll or dividends into his personal account” during a four-month time

       period, and that this amount “represents a monthly average of $5,060.00, which

       is the amount [Father] would be earning doing the same union work for the

       same number of hours, if he worked for any other union employer.” Id. at 159.

       The court also ordered Father to pay $300 per month to Mother for twelve

       months to be applied toward her attorney fees.


                                                   Discussion

                                                         I.


[17]   The first issue is whether the trial court’s determination of Father’s weekly gross

       income for purposes of calculating his weekly child support obligation is clearly

       erroneous. “We place a ‘strong emphasis on trial court discretion in

       determining child support obligations’ and regularly acknowledge ‘the principle

       that child support modifications will not be set aside unless they are clearly

       erroneous.’” Lea v. Lea, 691 N.E.2d 1214, 1217 (Ind. 1998) (quoting Stultz v.

       Stultz, 659 N.E.2d 125, 128 (Ind. 1995)). “Findings are clearly erroneous only

       when the record contains no facts to support them either directly or by
       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 11 of 21
       inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is

       clearly erroneous if it relies on an incorrect legal standard. Menard, Inc. v. Dage-

       MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000), reh’g denied. We give due regard

       to the trial court’s ability to assess the credibility of witnesses. Id. While we

       defer substantially to findings of fact, we do not do so to conclusions of law. Id.

       We do not reweigh the evidence; rather we consider the evidence most

       favorable to the judgment with all reasonable inferences drawn in favor of the

       judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999).


[18]   Ind. Code § 31-16-8-1 governs modification of child support orders and

       provides in part:

               (a) Provisions of an order with respect to child support . . . may
               be modified or revoked.
               (b) Except as provided in section 2 of this chapter, modification
               may be made only:
                        (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.



       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 12 of 21
[19]   Father contests the trial court’s determination of his weekly gross income for

       purposes of calculating his child support obligation. He argues that he never

       earned over $40,257 per year and yet the trial court found his income was

       $81,120 annually, that the court had no authority to impute income to him, that

       he pays himself for all work he performs, and that it is not the trial court’s role

       to force him to change his job and give up his business in order to maximize his

       income. He maintains that the trial court’s finding and Mother’s assertion that

       he “works more than 40 billable hours per week have no foundation in evidence

       whatsoever and are clearly erroneous.” Appellant’s Brief at 18-19. He notes

       that the court found he pays himself forty hours per week through the union

       although there is no evidence of this and that he generally reports only twenty

       hours per week through the union.


[20]   Father further contends that he receives income from both payroll and

       dividends from his ownership in his business, that his tax returns and quarterly

       estimated taxes reflect this, and that “[t]here is absolutely no evidence that [his]

       dividends and hourly income do not match all available income to him.” Id. at

       19. He states there is no evidence that all of his hours are billable and in fact

       there is evidence to the contrary, that much of his time is consumed with

       administrative and non-billable time, and he has had weeks where all of his

       hours were administrative and non-billable. He also notes the testimony of the

       union representative that glaziers are not guaranteed forty hours per week.

       Finally, Father argues that his bank statements do not support the court’s

       determination of his weekly income and that the bank deposits averaged


       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 13 of 21
       approximately $1,125 per week, far below the $1,560 per week figure set by the

       court.


[21]   Mother maintains that the record contains sufficient evidence to support the

       court’s finding. She argues that Father’s standard work hours are 6:00 a.m. to

       3:30 p.m., Monday through Thursday with a half day on Friday, that Father

       admits he usually has worked forty hours before Friday, and that he sometimes

       works a full day on Friday and sometimes on weekends. Mother further argues

       that the deposits into Father’s personal bank account “demonstrate annual

       earnings of over $60,000 per year, when he deposited at least $20,243 in a 4

       month time period.” Appellee’s Brief at 18. She also argues that Father could

       have produced a full year’s worth of bank statements to support his claim that

       the four-month time period was not indicative of his annual earnings.


[22]   Indiana Child Support Guideline 3A(1) provides in part that “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” and that “[w]eekly 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, [and] dividends, . . . .”


[23]   Indiana Child Support Guideline 3A(2) provides in part that weekly gross

       income “from self-employment, operation of a business, rent, and royalties is

       defined as gross receipts minus ordinary and necessary expenses,” that weekly


       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 14 of 21
       gross income “from self-employment may differ from a determination of

       business income for tax purposes,” and that “[e]xpense reimbursements or

       in-kind payments received by a parent in the course of employment,

       self-employment, or operation of a business should be counted as income if they

       are significant and reduce personal living expenses” and “[s]uch payments

       might include a company car, free housing, or reimbursed meals.”


[24]   The Commentary to Guideline 3A provides, with respect to self-employment,

       that calculating weekly gross income for the self-employed presents unique

       problems and calls for careful review of expenses, and that “[t]he principle

       involved is that actual expenses are deducted, and benefits that reduce living

       expenses (i.e. company cars, free lodging, reimbursed meals, etc.) should be

       included in whole or in part.” Subsection 2(a) to Commentary to Guideline

       3A.


[25]   With respect to overtime and irregular income, the Commentary further

       provides that “[t]here are numerous forms of income that are irregular or

       nonguaranteed, which cause difficulty in accurately determining the gross

       income of a party” and that examples include “[o]vertime, commissions,

       bonuses, periodic partnership distributions, [and] voluntary extra work and

       extra hours.” Subsection 2(b) to Commentary to Guideline 3A. It also

       provides that “[e]ach of the above items is sensitive to downturns in the

       economy,” “[t]he fact that overtime, for example, has been consistent for three

       (3) years does not guarantee that it will continue in a poor economy,” “it is not

       the intent of the Guidelines to require a party who has worked sixty (60) hour

       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 15 of 21
       weeks to continue doing so indefinitely just to meet a support obligation that is

       based on that higher level of earnings,” and that “[c]are should be taken to set

       support based on dependable income, while at the same time providing children

       with the support to which they are entitled.” Id.


[26]   The trial court did not find, and the evidence to which the parties point does not

       show, that Father is voluntarily unemployed or underemployed.6 See Support

       Guideline 3A(1) (stating in part that weekly gross income is defined as actual

       weekly gross income of the parent if employed to full capacity and potential

       income if unemployed or underemployed). In fact, Mother’s position is that

       Father receives his union hourly rate for forty hours and time-and-a-half for an

       additional ten hours each week. Thus, we turn to the evidence of Father’s

       actual earnings.


[27]   The basis for the trial court’s calculation of Father’s weekly gross income was

       its Finding 14 that Father “testified that he typically works 50+ hours per week,

       however he only pays himself for 40 hours a week through the union.”

       Appellant’s Appendix at 158. Finding 14 is a verbatim recitation of a proposed

       finding contained in Mother’s proposed findings of fact and conclusions of law.

       In Finding 15, the court found: “$28.00 an hour at 40 hours a week would be

       $1,120.00 earned income. An additional 10 hours a week overtime . . . would




       6
        Under the Support Guidelines, if a court finds a parent is voluntarily unemployed or underemployed
       without just cause, it may calculate support based on the parent’s potential income. See Ind. Child Support
       Guideline 3A(3); Commentary to Guideline 3A(2)(c).

       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016           Page 16 of 21
       be an additional $420.00 per week of earned income, so a weekly earned

       income of $1,560.00.” Id. Finding 15 is also a verbatim recitation of Mother’s

       proposed findings. The addition of $1,120 and $420 is $1,540, not $1,560. This

       mistake was copied in the court’s findings from Mother’s proposed findings.

       Further Mother does not direct us to evidence that Father works a weekly

       average of fifty or more hours at his union pay rate for fifty-two weeks per year

       and that all of those hours are billable.


[28]   We turn to the evidence of the bank statements, tax records, and testimony

       admitted at the hearings. The record establishes that Father receives income

       from his business in two forms, namely, in the form of wages as an employee

       and in the form of distributions from the business by virtue of his ownership

       interest.


[29]   Father’s personal bank account statements dated April 12, May 13, June 13,

       and July 15, 2012, cover 124 days and show that Father received a total of

       $20,243.56, which equates to approximately $1,142.78 per week. Father agreed

       that the deposits constituted wage income and distributions from his business.

       This average weekly deposit is substantially less than the $1,560.7 While the

       trial court acknowledges that the deposits represent a monthly average of

       $5,060, consistent with the bank statements admitted into evidence, it




       7
         Mother argues in her brief that the bank deposits demonstrate Father had annual earnings of over $60,000
       per year. We observe that annual earnings of $60,000 corresponds to weekly income which is substantially
       less than $1,560 per week.

       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016          Page 17 of 21
       nevertheless calculated Father’s weekly income to be $1,560 which corresponds

       to an average monthly income of approximately $6,760.8


[30]   The tax records show that Father’s income was $22,704 in 20099 and $40,257 in

       2010,10 and Father testified that his income in 2011 was $33,514. While

       income for tax purposes may differ from income for purposes of determining

       child support, we observe that Schedule E attached to the 2009 joint tax return

       shows that Father’s income from his business of $16,704 accounted for an

       expense deduction of $4,454, that Mother does not argue that this expense was

       not a business expense or that Father received benefits from the business that

       reduced his living expenses, and that Father testified the business did not

       provide him with a vehicle, lodging, or meals. Father’s tax records do not

       support the court’s finding that Father’s weekly gross income is $1,560.


[31]   We next turn to the testimony related to Father’s work schedule and billable

       hours. Mother cites to various portions of the transcript for the proposition that

       Father works, and is paid for, over fifty hours of work each week; however, our

       review of the cited portions does not support this. Farmer’s testimony, cited by

       Mother, is that the business’s standard hours are 6:00 a.m. to 3:30 p.m. on

       Monday through Friday, Father typically arrives later on Wednesday and




       8
           A weekly income of $1,560 per week amounts to $81,120 annually, which corresponds to $6,760 per month.
       9
           The 2009 joint tax return shows Father had wages of $6,000 and distributions from his business of $16,704.
       10
         Father’s 2010 W-2 statement shows he had wages of $3,000 and his 2010 Schedule K-1 shows he had
       business income of $37,257.

       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016            Page 18 of 21
       Friday mornings he and Father leave by noon on Fridays and do so at least

       three Fridays a month, and that there was not often work on the weekends.

       Father testified that if he and Farmer were not physically on a job the hours

       were not billable, and that if he is in the office, the hours are not billable, and he

       has had weeks where he had no paycheck.


[32]   Care should be taken to set support based on dependable income. See

       Subsection 2(b) to Commentary to Guideline 3A. The testimony was that not

       all of Father’s work is billable, and the tax and bank records support this

       testimony. Further, there is no finding Father is voluntarily underemployed or

       that his income for support calculation purposes should include any potential

       income he could earn by working additional billable hours. See Sandlin v.

       Sandlin, 972 N.E.2d 371, 375 (Ind. Ct. App. 2012) (noting “the Guidelines do

       not require or encourage parents to make career decisions based strictly upon

       the size of potential paychecks, nor do the Guidelines require that parents work

       to their full economic potential” and that “[i]t is not our function . . . to approve

       or disapprove of the lifestyle of [parents] or their career choices and the means

       by which they choose to discharge their obligations in general”) (citations

       omitted).


[33]   Based upon the evidence set forth above and in the record, we conclude that the

       court’s finding of Father’s weekly gross income for purposes of calculating his

       child support obligation is clearly erroneous. We remand with instructions to

       recalculate Father’s weekly gross income and to determine the amount of any

       credit to which Father may be entitled for any overpayment of support. See

       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 19 of 21
       Sandlin, 972 N.E.2d at 377 (noting there was no evidence suggesting the

       mother’s income was $1,067 per week and that the only portion of the record

       where this number appeared was the mother’s child support worksheet, and

       remanding with instructions to evaluate the evidence presented and determine

       the mother’s income).


                                                         II.


[34]   The next issue is whether the trial court abused its discretion in ordering Father

       to pay attorney fees. Father argues that the attorney fee award was based upon

       a completely false evidentiary basis, and that the respective earning capacities of

       the parties are in relative parity. Mother argues the court did not abuse its

       discretion in ordering a modest award of attorney fees, that she incurred in

       excess of $12,500 in attorney fees prior to May 1, 2013 plus fees for work after

       that date, and it does not appear Father objected or responded to her

       submission on attorney fees in any manner.


[35]   Pursuant to Ind. Code § 31-16-11-1, a trial court may periodically order a party

       to a child support proceeding to pay a reasonable amount for attorney fees. See

       also Ind. Code § 31-17-7-1 (same for proceedings for modification of custody

       and parenting time). The award of attorney fees is discretionary. Whited v.

       Whited, 859 N.E.2d 657, 665 (Ind. 2007). In assessing attorney fees, the trial

       court may consider such factors as the resources of the parties, the relative

       earning ability of the parties, and other factors that bear on the reasonableness

       of the award. McGuire v. McGuire, 880 N.E.2d 297, 303 (Ind. Ct. App. 2008).


       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 20 of 21
       Mother submitted a detailed billing statement showing she had incurred

       $12,635.64 in attorney fees prior to May 1, 2013.


[36]   Because we reverse for a determination of Father’s weekly gross income and

       weekly child support obligation based upon the evidence, the trial court should

       consider on remand whether Mother should be awarded attorney fees of $300

       per month for twelve months or a lesser amount in light of the relative earning

       abilities of the parties and other factors that bear on the reasonableness of an

       award.


                                                   Conclusion

[37]   For the foregoing reasons, we reverse and remand for a determination of

       Father’s weekly gross income and weekly child support obligation based upon

       the evidence and for consideration of Mother’s request for attorney fees

       consistent with this opinion.


[38]   Reversed and remanded.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-70 | January 29, 2016   Page 21 of 21
