                                                                               FILED
                                                                          May 31 2016, 6:52 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Jonathan M. Young                                          Trisha S. Dudlo
Newburgh, Indiana                                          Kelly A. Lonnberg
                                                           Bamberger Foreman Oswald &
                                                           Hahn, LLP
                                                           Evansville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Tracy K. Barber,                                           May 31, 2016
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           87A01-1510-JP-1639
        v.                                                 Appeal from the Warrick Circuit
                                                           Court
Amy Henry,                                                 The Honorable Greg A. Granger,
Appellee-Respondent.                                       Judge
                                                           Trial Court Cause No.
                                                           87C01-1503-JP-47



Riley, Judge.




Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016                            Page 1 of 19
                                    STATEMENT OF THE CASE

[1]   Appellant-Respondent, Tracy K. Barber (Father), appeals the trial court’s

      Order, granting Appellee-Petitioner’s, Amy Henry (Mother), verified petition to

      modify foreign child support order.


[2]   We affirm, in part, reverse, in part, and remand with instructions.


                                                     ISSUES

[3]   Father raises two issues on appeal, which we restate as follows:


          (1) Whether the trial court abused its discretion by calculating Mother’s

              income at minimum wage when she is a medical doctor and has a

              historical income in excess of $150,000 but elects to stay at home with

              her children; and

          (2) Whether the trial erred in concluding that Father was responsible for

              payment of expenses incurred prior to the filing of Mother’s modification

              petition.


                            FACTS AND PROCEDURAL HISTORY

[4]   Father is the natural parent of S.B., born on February 21, 1999. S.B. resides in

      Newburgh, Indiana with Mother, Mother’s husband, Dr. Dan Henry (Dr.

      Henry), Mother’s minor child from a prior marriage, C.R., aged 14, and

      Mother’s and Dr. Henry’s minor child, B.H, aged 7 at the time of the hearing.

      S.B. and B.H. have both been diagnosed with autism spectrum disorder, while

      C.R. has been diagnosed with attention deficit hyperactivity disorder.

      Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 2 of 19
[5]   On August 1, 2001, the Fayette Circuit Court, in Kentucky, entered an Agreed

      Order, adopting the agreement between Father and Mother to establish joint

      legal custody of S.B., with Mother receiving sole physical custody and Father

      having “liberal visitation.” (Appellant’s Conf. App. p. 1). Father agreed to pay

      $230 per month towards child support. The Order reflected that “[b]oth parties

      acknowledge that this amount is less than required by the Kentucky Child

      Support Guidelines and knowingly waive the Guidelines’ amount.”

      (Appellant’s Conf. App. p. 2).


[6]   Mother is a doctor of osteopathic medicine; she graduated in 2001 and

      completed her residency in 2004. After residency, Mother shared a practice

      with her current husband until the practice “became overwhelming.”

      (Transcript p. 22). In 2013, the practice was sold to Methodist Hospital in

      Henderson, and Mother remained employed by the hospital for another two

      years. Mother worked Monday through Thursday, from 9:00 a.m. until “the

      kids got out of school.” (Tr. p. 22). After a while, Mother’s employment was

      reduced to three days per week. She worked part-time at Henderson Minor

      Outpatient Clinic, and later reduced her hours to one shift per week, and

      eventually, to one shift per month. Mother made the decision to reduce her

      employment because the “therapy appointments” for S.B. and B.H. “were

      getting out of control.” (Tr. p. 23). She stopped being employed altogether in

      December 2014.


[7]   Initially, Mother reduced her hours when B.H. was diagnosed with autism

      spectrum disorder. B.H. had “therapy seven hours a week[,]” in addition to the

      Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 3 of 19
      therapy at home. (Tr. p. 23). In the fall of 2013 and a month after B.H. was

      diagnosed, S.B. was similarly diagnosed with autism spectrum disorder. At

      first, S.B. only took social skills classes but due to his delayed diagnosis, the

      number of appointments increased because he “had to make up for a lot of lost

      time.” (Tr. p. 24).


[8]   On April 26, 2014, an incident involving S.B. at his Father’s residence resulted

      in juvenile criminal charges filed against S.B. After the charges were filed, S.B.

      was placed on informal house arrest and suicide watch for about a month. As a

      term of S.B.’s informal house arrest, S.B. could not be left alone with any

      children or his siblings and needed constant supervision. Pursuant to the

      juvenile order, S.B. was referred for testing and evaluation by a specialist,

      located in Bloomington, Indiana. After pleading guilty, S.B. was placed on

      probation, with very strict guidelines, until his eighteenth birthday. The

      probation requirements include that S.B. can “never be unsupervised with

      anyone under the age of 14[,] is never to be placed in a supervisor position for

      any kids[, and] he should refrain from viewing pornography, or any type of

      materials of that matter.” (Tr. p. 27). Furthermore, as a probation requirement

      at the recommendation of the specialist, S.B. was not to contact the victim or

      the victim’s family, which included Father, until the victim and the family had

      received counseling. Father did not attend any of S.B.’s juvenile court hearings

      and, at the time of the trial court’s hearing on the child support modification,

      had not yet undergone counseling. S.B. finished his court-ordered program at

      the end of May 2015.


      Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016     Page 4 of 19
[9]    Because he was placed on probation, Mother started homeschooling S.B in

       September of 2014. She hired a life coach to help S.B. with his home school

       requirements, an algebra tutor, as well as an algebra teacher. S.B. was able to

       attend home room at Castle High School in the Warrick County School system

       for a semester starting January 2015 “just to get acquainted with the people

       while he is learning these skills that he needs” and “with the intention that he

       would integrate in the fall of 2015.” (Tr. pp. 30, 51). S.B. returned to school

       fulltime in the fall semester of 2015. Between S.B.’s court ordered treatments,

       the two boys’ social skills classes, and the three boys’ therapy appointments,

       Mother has not been able to obtain employment in her profession.


[10]   Dr. Henry, Mother’s current husband and father to B.H., is a pulmonary

       physician at Deaconess Hospital. Due to the needs of the three children, Dr.

       Henry changed his work from critical care medicine to the sleep lab to “have a

       more fixed schedule.” (Tr. p. 103). His “base salary will go down significantly

       but it will allow [him] a lot more time at home.” (Tr. p. 104). Dr. Henry also

       committed to working one day per week at Veteran’s Affairs to obtain better

       health insurance for the children’s treatments. Despite the insurance coverage,

       the family carries “a significant amount of uninsured medical expenses.” (Tr.

       p. 106). Dr. Henry “took off work all the days that [S.B.] was in court and was

       [] there. [H]e was there for numerous social workers visits when the

       Department of Children Services had to come to [the] home. [H]e helped with

       all the appointments[.]” (Tr. p. 43). “He has lost wages, he has lost skills,

       expertise, and respect.” (Tr. p. 43).


       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 5 of 19
[11]   Father is employed at Dana Corporation as a safety manager. He earned a

       salary of approximately $97,500 in 2015, which included a $6,000 bonus. He

       currently resides with his fiancé, who pays one-half of the mortgage, utilities,

       and food. Father pays $170 per month in child support for a subsequent born

       child and is also saving $800 per month for his upcoming nuptials.


[12]   One year after the incident that resulted in S.B.’s probation, Father contacted

       S.B. by text message. Mother felt compelled to seek a protective order against

       Father. On March 5, 2015, Mother filled her petition for an order for

       protection and request for a hearing filed on behalf of a child. On March 31,

       2015, Mother filed a petition to transfer jurisdiction and register foreign order,

       as well as a verified petition to modify foreign child support order. On April 8,

       2015, the trial court assumed jurisdiction and registered the order issued in

       Kentucky. On April 24, 2015, Father filed his response to Mother’s pleadings,

       as well as a verified information for contempt and a petition to modify

       parenting time. On August 25, 2015, the parties submitted a Partial Agreed

       Order to the trial court, agreeing, in pertinent part, to the following:


               1. The parties agree and stipulate that [the trial court] is the
                  proper jurisdiction for this juvenile paternity matter.


               2. The Father shall set up his own therapy sessions through a
                  reunification therapist of his choice and at his expense,
                  recommended or approved by [the Bloomington specialist
                  appointed in the juvenile matter].


               3. The child shall continue with his existing therapist on the
                  issue they are currently working on, and in addition [S.B’s]
       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016    Page 6 of 19
             therapist shall be authorized to communicate with the
             Father’s therapist to form an agreement regarding initial
             reunification meetings and how to handle them.


        4. Once the therapists agree that it is appropriate, Father and
           [S.B.] will participate in parenting time at the Parenting Time
           Center in Evansville[,] Indiana at the Father’s expense, for so
           long as the therapists jointly agree that said supervised
           sessions are appropriate.


        5. When the therapists agree that the supervised sessions have
           been going well and it is appropriate to move forward, the
           parties shall move forward on to alternate weekend parenting
           time with Father in public locations, for 3 to 4 hours.


        6. The Father shall have no contact with the minor child other
           than through this process of work with the therapists and
           initially via supervision.


             ****


        9. After supervision ends, exchanges of the child for parenting
        time shall take place at a neutral location. Neither party shall go
        to the other party’s property.




        10. The Mother’s request for protective order is hereby
        withdrawn, with the exception of her request for reimbursement
        of expenses.


(Appellant’s App. pp. 20-21).



Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 7 of 19
[13]   Also, on August 25, 2015, the trial court conducted a hearing on the remaining

       issues and entered its Order on September 23, 2015, concluding, in pertinent

       part:

                8. [Mother], when she was employed in private practice, had
                earned in some years in excess of $150,000.00. [Mother] is
                currently not employed outside of her maternal and spousal
                duties to care for and raise her children and step-children.[ 1]


                9. Mother’s son, [S.B.], and her stepson[ 2], [B.H.], as special
                needs individuals require supervision, guidance, and assistance
                above what is required for child[ren] who are not special needs.


                10. Mother’s current employment situation is not a choice made
                to avoid any child support obligation, and is not due to an effort
                to avoid the payment of any child support obligation.
                Furthermore, Mother’s spouse’s significant income has not
                contributed to Mother’s decision not to be employed. In
                summary, [Mother’s] unemployment is not contrived.


                11. As a result of a juvenile delinquency petition involving
                [S.B.], Mother has incurred certain expenses for which she seeks
                contribution from [Father].




       1
         Although the trial court references step-children, the record and Mother’s own testimony clearly reflects
       that all three children are her biological children.
       2
        Again, although the trial court refers to B.H. as Mother’s step-son, Mother’s own testimony unequivocally
       establishes that B.H. is her biological son and the child of the marriage between Mother and Dr. Henry.

       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016                            Page 8 of 19
               12. The [c]ourt finds that [Father] is to pay [Mother] the sum of
               $14,140.46 as his contribution to Mother’s expenses incurred for
               [S.B.].


               13. The [c]ourt, having received testimony and evidence
               concerning the income and resources available to the parties,
               determines that Father shall pay child support in the amount of
               $262.00 a week beginning September 25, 2015, pursuant to the
               Child Support Worksheet attached to and incorporated into this
               Order. Mother is to pay the first $873.60 of uninsured health
               care expense, and thereafter Father is to pay 88.45% and Mother
               11.55% of uninsured health care expenses.


       (Appellant’s App. pp. 5-6).


[14]   Father now appeals. Additional facts will be provided as necessary.


                                     DISCUSSION AND DECISION


                                              I. Standard of Review


[15]   Decisions regarding child support rest within the sound discretion of the trial

       court. Taylor v. Taylor, 42 N.E.3d 981, 986 (Ind. Ct. App. 2015), trans. denied.

       Thus, we reverse child support determinations only if the trial court abused its

       discretion or made a determination that is contrary to law. Id. An abuse of

       discretion occurs only when the decision is clearly against the logic and effect of

       the facts and circumstances before the court, including any reasonable

       inferences therefrom. Hooker v. Hooker, 15 N.E.3d 1103, 1105 (Ind. Ct. App.

       2014). Whether the standard of review is phrased as “abuse of discretion” or

       “clear error,” the importance of first-person observation and preventing

       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016     Page 9 of 19
       disruption to the family setting justifies deference to the trial court. Id. (citing

       MacLafferty v. MacLafferty, 829 N.E.1d 938, 940-41 (Ind. 2005)).


                                               II. Minimum Wage


[16]   Father disputes the trial court’s modification of his support obligation for S.B.

       Following the determination of paternity, the court may order either or both

       parents to pay any reasonable amount for child support. I.C. § 31-14-11-1.1. A

       child support order in a paternity proceeding is subject to the provisions of Ind.

       Code section 31-16-8-1. See I.C. § 31-14-11-2.3 (“A child support order issued

       under this chapter is subject to the provisions in [I.C. §] 31-16-6 through [I.C. §]

       31-16-13”). Accordingly, “[p]rovisions of an order with respect to child support

       . . . may be modified or revoked.” I.C. § 31-16-8-1; In re Paternity of M.R.A., 41

       N.E.3d 287, 294 (Ind. Ct. App. 2015). Except as provided in another statute

       which is not applicable here, a modification to an existing order for child

       support 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 applying the child
                       support guidelines; and




       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016     Page 10 of 19
                    (B) the order requested to be modified or revoked was issued
                        at least twelve (12) months before the petition requesting
                        modification was filed.


       I.C. § 31-16-8-1(b). The party seeking to modify a child support order bears the

       burden of establishing that the statutory requirements have been met. Hooker,

       15 N.E.3d at 1105.


[17]   Here, Father’s contention is not the modification of child support per se, but

       rather the trial court’s calculation. More specifically, Father’s challenge is

       focused on the court’s imputation of minimum wage as Mother’s income, while

       Mother has a medical degree and has been employed as a physician before.

       Father assures us that he “is not asking that Mother make employment

       decisions based upon obtaining the highest pay[;]” rather “he is just asking that

       the [c]ourt fairly allocate support where the Mother has admittedly chosen not

       to work based upon her husband’s substantial income.” (Appellant’s Br. p. 11).


[18]   Trial courts may impute income to a parent for purposes of calculating child

       support upon determining that he or she is voluntarily unemployed or

       underemployed. Matter of Paternity of Buehler, 576 N.E.2d 1354, 1355-56 (Ind.

       Ct. App. 1991). The Child Support Guidelines permit imputation to discourage

       parents—both the payor non-custodial parent and the recipient-custodial

       parent—from avoiding significant child support obligations by becoming

       unemployed or taking a lower paying job. See id. But 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

       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016       Page 11 of 19
       their full economic potential. Id. “It 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.” Id. “To

       determine whether potential income should be imputed, the trial court should

       review the obligor’s work history, occupational qualifications, prevailing job

       opportunities, and earning levels in the community.” Homsher v. Homsher, 678

       N.E.2d 1159, 1164 (Ind. Ct. App, 1997).


[19]   A review of the record leaves us convinced that Mother is unemployed with just

       cause. The record reflects that, starting in 2013, Mother’s employment

       gradually reduced. Although she was in fulltime employment with Methodist

       Hospital, progressively her hours were reduced, initially to three days per week

       and eventually to only one shift per month. She stopped being employed

       altogether in December 2014. Mother’s reduction in employment coincided

       with the diagnosis of B.H. and S.B. and the corresponding increase of

       appointments “to make up for lost time” of a delayed identification of S.B.’s

       autism. After the incident at Father’s residence in April 2014 and the

       imposition of probationary requirements by the juvenile court, S.B. was placed

       on house arrest. He became “attached to [Mother’s] hip for about two months,

       [she] could not leave [the] children alone even in the same room.” (Tr. p. 26).

       The juvenile court required testing and even more therapy, which will remain in

       place until S.B. is 18 years old. Because S.B. was placed on house arrest,

       Mother started homeschooling S.B. in September of 2014 with the help of

       private tutors. In January 2015, S.B. started attending home room at Castle


       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 12 of 19
       High School with intent to transition him into fulltime school in the fall

       semester of 2015.


[20]   Besides S.B.’s court ordered treatments and requirements, Mother takes S.B.

       and B.H. to social skills classes, and all three boys to their therapy

       appointments. At the time of the hearing, all three children were enrolled in

       school fulltime. Mother, with the help of Dr. Henry, gets the boys ready in the

       morning and Dr. Henry drops them off at school. A normal school day ends at

       2:15 p.m. Two days a week, Mother picks up B.H. early for therapy and every

       three months she takes B.H. for a dental appointment. In addition, B.H. has

       soccer practice twice a week and at-home therapy, which started on an hourly

       basis. S.B. has an appointment with his therapist every other week, and his

       psychiatrist every other month. He has social skills classes once a week after

       school and an Individualized Educational Plan (IEP), which requires extra

       “communication between [Mother] and the teachers.” (Tr. p. 64). C.R., the

       middle child, sees a psychiatrist every three months.


[21]   Mother has applied for respite care and has been approved. However, the

       agency appointed for the care has yet to fulfill the hourly obligation. Due to the

       needs of the three children, Dr. Henry changed his medical specialty to have a

       more fixed schedule. This career choice came with a significant decrease in his

       base salary in exchange for “a lot more time at home.” (Tr. p. 104).


[22]   Based on the particular facts and circumstances before us, the trial court

       properly concluded that “Mother’s current employment situation is not a choice


       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 13 of 19
       made to avoid any child support obligation[.]” (Appellant’s App. p. 5). A

       highly educated parent who chooses to leave her employment to help her three

       children with special developmental needs is not unemployed without just

       cause. Although Dr. Henry is in an enviable affluent position to give Mother

       and the children a more comfortable life, this is not Mother’s main reason for

       not working. Rather, Mother’s life revolves around her three minor sons and

       their therapy, and is focused on getting them the best care she can give them so

       they may each reach their full potential. It is not our function to “force parents

       to work to their full economic potential or make their career decisions based

       strictly upon the size of potential paychecks.” Buehler, 576 N.E.2d at 1356.

       Although the trial court could have imputed no income to Mother, here, the

       trial court allotted Mother the minimum income in its calculation of 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.” In re Paternity of Pickett, 44 N.E.3d 756, 766 (Ind. Ct. App. 2015).

       Instead, “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. Accordingly, the trial court did not abuse its

       discretion in its calculation of the weekly child support.


                                            III. Payment of Expenses


[23]   Next, Father contends that the trial court erred when it required Father to

       reimburse Mother for “certain expenses” she incurred “[a]s a result of a juvenile

       delinquency petition involving S.B.” in the amount of $14,140.46. (Appellant’s

       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 14 of 19
       App. p. 5). Father relies on the initial child support order issued by the

       Kentucky court, which did not include a provision for medical expenses, to

       maintain that he is not obligated to pay for medical, counseling, and other

       expenses related to S.B.’s juvenile case.


[24]   On March 5, 2015, Mother filed a petition for an order of protection. 3 On the

       petition, Mother checked “the box requesting an order for [Father] to reimburse

       [Mother] and or the child [] who need protection for expenses related to the

       basis of the protective order.” (Tr. p. 95). On April 1, 2015, Mother

       supplemented the petition by specifically requesting “reimbursement for

       medical expenses, counseling expenses and other costs[.]” (Tr. p. 96). At the

       beginning of the hearing on August 25, 2015, the parties presented a Partial

       Agreed Order to the trial court, which stipulated:

                10. The Mother’s request for protective order is hereby
                withdrawn, with the exception of her request for reimbursement
                of expenses.


                11. The [c]ourt now hears evidence regarding the remaining
                issues not agreed upon by the parties, and takes these remaining
                issues under advisement, those being child support, uninsured
                medical expenses, retroactive child support, retroactive uninsured
                medical expenses, other expenses submitted by Mother under the




       3
        The parties did not include the petition for the protective order or its supplement in their respective
       appendices. We will therefore rely on the transcript to infer their contents.

       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016                            Page 15 of 19
               protective order petition for reimbursement, and the Mother’s request
               for attorney fees.


       (Appellant’s App. pp. 21-22) (emphasis added). During the presentation of this

       Partial Agreed Order to the trial court, Mother clarified:


               We are not asking for a protective order going forward, but our
               petition for protective order requested [] reimbursement of the
               expenses that [Mother] incurred as a result of these incidents
               [under the juvenile cause] and we continue to make that request.
               So it’s a child support going forward, child support retroactive to
               our petition, [] and other expenses.


       (Tr. p. 16). After Father agreed with this elaboration of the Partial Agreed

       Order, the trial court accepted the terms.


[25]   While Father is correct that the initial child support order does not include a

       provision for medical and counseling costs; he nevertheless agreed to the

       reimbursement of his share of these expenses, as related to S.B.’s juvenile cause,

       through the Partial Agreed Order accepted by the trial court on August 25,

       2015. Because Father agreed, he waived the issue for our review and cannot

       now be heard to complain. 4


[26]   Next, contesting the amount of the reimbursement, Father claims that Mother’s

       expenses were unreasonable. During trial, Mother testified that the total




       4
        Because we conclude that the reimbursement of the disputed costs were agreed upon in the Partial Agreed
       Order, we do not address Father’s related argument that the reimbursement of the particular costs cannot be
       based upon the Indiana Civil Protection Order Act. See I.C. § 34-26-5-9(c).

       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016                        Page 16 of 19
       amount of out-of-pocket expenses related to S.B.’s juvenile cause was

       $28,280.92. In its Order, the trial court ordered Father to reimburse half, or

       $14,140.46.


[27]   Father contends that Mother sought reimbursement of counseling expenses,

       tutoring expenses and therapeutic evaluations of which Mother did not seek

       Father’s input or agreement before incurring these. The record reflects that one

       of the probationary requirements of the juvenile cause included the prohibition

       of contacting the victim or the victim’s family, of which Father was part, before

       they had undergone counseling. As Father had yet to undergo counseling at

       the time of the custody modification hearing, Mother was not in a position to

       consult Father before incurring the expenses.


[28]   Secondly, Father objects to the expenses because “Mother’s husband paid the

       expenses.” (Appellant’s Br. p. 15). While Father explicitly testified that it is

       Dr. “Henry’s responsibilities to pay those expenses” for S.B., S.B. is Father’s

       son, not Dr. Henry’s child. (Tr. p. 155). The testimony reflects that all

       expenses were expenses incurred for S.B. as a result of the incident related to

       the juvenile cause. Because Dr. Henry is the only adult employed in Mother’s

       household, it is understandable that he paid for those expenses. Accordingly, a

       reimbursement would not be a windfall for Dr. Henry as he was not the parent

       responsible for payment of half of those expenses.


[29]   Lastly, Father disputes the amount of “Attorney fees – civil” in the total

       amount of $14,018.00. (Mother’s Exh. 1). Contesting the lack of detail in the


       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 17 of 19
       amount of attorney fees, he rejects the reasonableness of the reimbursement. In

       response, Mother asserts that “the trial court also granted payment of half of

       [Mother’s] attorney fees.” (Appellee’s Br. p. 22). However, the trial court’s

       Order, issued September 23, 2015, is silent with respect to attorney fees. The

       only expenses alluded to by the trial court are “the certain expenses” Mother

       “has incurred” as a result “of a juvenile delinquency petition involving S.B.[;]”

       the trial court did not explicitly grant attorney fees in the child support

       proceeding. (Tr. p. 5).


[30]   Nevertheless, pursuant to the Partial Agreed Order, the parties agreed to submit

       the issue of reimbursement of “other expenses submitted by Mother under the

       protective order petition” to the trial court. (Appellant’s App. p. 22). The

       Indiana Civil Protection statute, which governs the issuance of protective

       orders, specifies that a court may order a party to pay attorney’s fees. I.C. § 34-

       26-5-9(c)(3)(A). Accordingly, as “other expenses” is not further detailed, we

       infer that these may include the statutorily awarded attorney’s fees. Thus, in

       the absence of a specific grant of attorney fees for the support modification,

       only the attorney fees pertaining to the protective order can be reimbursed.


[31]   At trial, Mother submitted a summary exhibit with a general outline of her

       expenses, which included the reference of the civil attorney fees in the amount

       of $14,018.22. She also presented the trial court with a “Ledger Report,” which

       specified total amounts of daily attorney fees incurred in “Issues regarding

       [S.B.]” (Mother’s Exh. 1, tab B). The Ledger Report fails to include details

       such as the type of work, hourly or fixed, amount of time spent. The trial court

       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016       Page 18 of 19
       admitted the Ledger Report “as a demonstrative exhibit,” with Father’s

       reservation that he would receive an itemized billing. The record does not

       include evidence establishing that Father ever received the itemized billing

       statement. Accordingly, we reverse the trial court’s order with respect to the

       civil attorney fees and remand with instructions to determine which part of the

       total amount claimed can be attributed to the protective order petition.


                                                CONCLUSION

[32]   Based on the foregoing, we conclude that trial court did not abuse its discretion

       when it imputed minimum wage to Mother after concluding that she was not

       voluntarily unemployed. We reverse the trial court with respect to the award of

       civil attorney fees and remand with instructions to determine which portion of

       these fees can be attributed to the protective order. We affirm the trial court

       with respect to all other reimbursement expenses.


[33]   Affirmed in part, reversed in part, and remanded with further instructions.


[34]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Opinion 87A01-1510-JP-1639 | May 31, 2016   Page 19 of 19
