Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
                                                                         Apr 14 2014, 9:23 am
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:

JILL S. SWOPE                                     MARGO R. BABINEAUX
Sterba & Swope, LLP                               Meinzer & Babineaux LLC
Schererville, Indiana                             St. John, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

IN RE THE MARRIAGE OF:                            )
                                                  )
ANNETTE M. HUSEMAN, f/k/a                         )
ANNETTE M. MANTIS,                                )
                                                  )
       Appellant,                                 )
                                                  )
              vs.                                 )      No. 45A04-1307-DR-351
                                                  )
ANGELO N. MANTIS,                                 )
                                                  )
       Appellee.                                  )


                        APPEAL FROM THE LAKE CIRCUIT COURT
                            The Honorable George C. Paras, Judge
                         The Honorable Michael A. Sarafin, Magistrate
                               Cause No. 45C01-0302-DR-123



                                        April 14, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Annette Huseman (“Mother”) appeals the denial of her motion to correct errors

and the trial court’s order entered on April 23, 2013. Mother raises two issues which we

consolidate and restate as whether the court abused its discretion or erred in denying her

motion to correct errors and in entering its April 23, 2013 order. We affirm in part,

reverse in part, and remand.

                           FACTS AND PROCEDURAL HISTORY

       Mother and Angelo Mantis (“Father”) married and had two children. On February

5, 2004, the parties entered into a Settlement Agreement which contained provisions

related to the division of the marital estate and to child support. The parties’ marriage

was dissolved by a decree of dissolution (“Decree”) which incorporated by reference the

terms of the Settlement Agreement and which was approved by the trial court and filed

on February 17, 2004.

       The Settlement Agreement provided that Mother would have physical custody of

the children and, under Paragraph 2.A. of Article III (“Paragraph 2.A.”), that Father

“shall pay to [Mother] the sum of Ninety-two and 34/100 ($92.34) Dollars per week as

and for base child support of the parties’ minor children.” Appellant’s Appendix at 16.

Additionally, Paragraph 2.B. of Article III of the Settlement Agreement (“Paragraph

2.B.”) provided in part:

              [T]he Parties expressly acknowledge that [Father’s] employer has
       moved him from a salaried status to a base salary plus commission pay
       plan. The child support obligation of [Father] as set forth in the preceding
       paragraph is premised solely upon [Father’s] anticipated 2004 base salary.
       While [Mother] expressly reserves the right to re-visit [Father’s] child
       support obligation without being subjected to the conditions for support
       modification as set forth in the Child Support Guidelines, the parties agree
       that [Father] shall pay to [Mother] [a] monthly sum equal to twenty-seven
       (27%) percent (basic support of $285.00 ÷ by a combined weekly gross
                                             2
        income of $1,073.00 = 27%)[1] of his gross monthly earnings in excess of
        his base weekly salary of Four Hundred ($400.00) Dollars as and for
        additional support of the parties’ minor children. Said additional support is
        calculated in accordance with the Indiana Child Support Guidelines
        Commentary to Guideline 3. Documentation of [Father’s] monthly gross
        earnings shall be provided to [Mother] at the time of the payment of the
        additional support.

Id. at 17. The child support obligation worksheet attached to the Settlement Agreement

showed Father’s weekly gross income as $400, Mother’s weekly gross income as $673,

and a recommended support obligation by Father of $92.34. The Settlement Agreement

also contained provisions related to the payment of health-related expenses on behalf of

the children, the designation of life insurance beneficiaries, and the parties’ agreement as

to dependency exemptions.

        On February 23, 2012, Mother filed a Verified Petition for Rule to Show Cause

and for Modification of Support which alleged that Father was required to pay support of

$92.34 per week premised upon his base salary plus a monthly sum equal to a percentage

of his gross earnings in excess of his base weekly salary of $400, that Father failed to

remit timely payments with respect to his base salary and his gross earnings in excess of

his base salary, and that Father failed to submit documentation to Mother evidencing his

gross earnings.        Mother also argued that changes in circumstances warranted a

modification of Father’s support obligation. On May 3, 2012, Father filed a Petition for

Rule to Show Cause alleging that Mother did not permit him to have parenting time at


        1
          As noted by the trial court in its April 23, 2013 order, at the December 3, 2012 hearing, “Mother
conceded that a mathematical error is reflected in the [Settlement] Agreement and that the amount should
have been 22.4% and not 27%.” Appellant’s Appendix at 3. At the hearing, Mother’s counsel stated “it
appears that the percentage was improperly calculated” and “so I’m prepared to stipulate that rather than
the twenty-seven percent that is reflected in the Settlement Agreement, the correct computation should
have been point two-two-four [and] my calculations are premised upon twenty-two point four percent . . .
rather than twenty-seven percent.” Transcript at 13.
                                                    3
certain times, that Mother failed to pay the children’s uninsured health expenses and that

he paid more than his share of those expenses required under the Decree, that Mother

failed to comply with those terms of the Decree related to the distribution of the proceeds

of the sale of the marital home, and that Mother claimed a dependency exemption in one

year in disregard of the court’s order.

       On December 3, 2012, the court held a hearing at which the parties presented

evidence and argument related to Father’s arrearage and child support obligation. Mother

presented Father’s gross income for the years 2004 through 2011 and a calculation of

Father’s arrearage under Paragraph 2.B. of the Settlement Agreement, which showed that

Father’s arrearage based upon his gross earnings in excess of his base salary was equal to

a total of $47,495.2 Further, Mother presented Father’s child support payment history

and submitted a child support worksheet showing Father’s weekly gross income to be

$1,669.08, her weekly gross income to be $958.85, and a recommended support

obligation of $275.98 from Father. Mother also presented evidence showing Father’s

payments with respect to his weekly support obligation3 and other purchases made by

Father for the children’s extracurricular activities and noted that all of Father’s payments

since 2008 with the exception of one payment in 2011 were non-conforming payments

but that she gave Father credit for all of those non-conforming payments. In particular,


       2
          In her computation, Mother set forth Father’s gross income for each year from 2004 to 2011,
subtracted his base income of $20,800 in each year (and also subtracted Father’s relocation expenses in
the year 2011), and multiplied the result by the percentage of 22.4%.
       3
          Mother submitted a payment history document showing Father’s support payments through the
clerk’s office (which shows a number of payments for $92.34) and another payment history document
showing all of Father’s payments including those which were not made through the clerk’s office. The
document which includes all of Father’s payments shows a weekly amount due of $93.24 rather than
$92.34 as set forth in the Settlement Agreement.
                                                  4
Mother argued that, based upon the support payments made by Father, Father incurred an

arrearage of $5,539.274 with respect to his support obligation based on his base salary of

$400 per week under the Settlement Agreement and that Father made other purchases for

the children of $2,298.37.       Mother argued that, as a result, Father’s total support

arrearage consisted of $47,495 for Father’s arrearage with respect to his gross income in

excess of his base salary for the years 2004 through 2011 plus $5,539.27 for Father’s

arrearage with respect to his base weekly support during that time period and less a credit

of $833 related to a credit card payment which Mother was required but failed to make,

for an aggregate arrearage of $52,201.27. Mother requested that Father’s child support

obligation be set at $275 per week based upon the child support worksheet she submitted.

She also submitted her cost for medical, dental, and vision insurance coverage through

her employer.

       Father by counsel argued that, at the time of the Decree, he was employed by

Tones Pressler Company (“TPC”), and that, approximately three months after the entry of

the Decree, he received new employment at another company, that Mother knew of his

new employment, and that he was unemployed off and on from 2006 through 2009.

Father argued he did not believe that he “was supposed to do some sort of calculation and

pay additional support,” that “[h]e did not understand [the Settlement Agreement] to

mean this continues on from job to job to job,” and that “to apply it to each and every job

thereafter . . . would be unjust.” Transcript at 29. Father noted that he took a transfer to

California and that his cost of living was substantially higher in California than Indiana.


       4
         It appears that this amount may have been computed in part using a weekly base support of
$93.24 instead of $92.34 as set forth in the Settlement Agreement.
                                                5
He requested that any new support order be gradually phased in so that he could adjust

his life accordingly. He testified that he moved to California in October 2011, that he had

been recently remarried in November 2011, and that he had a child in December 2011.

He presented a child support worksheet showing his weekly gross income to be

$1,343.52, Mother’s weekly gross income to be $968.31, and a recommended support

obligation of Father of $207. The worksheet he submitted included the salary he had

earned in Indiana and not the increased salary he was earning in California. In addition,

Father’s worksheet included a credit for Father for parenting time which was not included

on Mother’s worksheet and did not include a credit for Mother for health insurance

premium payments which was included on Mother’s worksheet.

       The court asked why Father did not file any motions to modify child support

during the previous eight years given that he had a number of job changes, and Father’s

counsel responded that Father did try to keep up with support, that he was “not thinking a

twenty-seven percent factor,” that Father “will tell you that [his attorney at the time of the

Settlement Agreement] did not explain this to him and he did not understand that it would

carry on to each and every employer,” and that “the way he read it, it was based upon that

employment situation.” Id. at 41, 43. The court asked if Father was, in essence, asking it

to modify the Settlement Agreement, and Father’s counsel replied he did not believe so

because the Settlement Agreement expressly discussed “that job that he had,” further

discussed Mother’s “right to revisit, even without waiting the one year,” and that

“everybody knew at the time his job was up in the air.” Id. at 44. Father’s counsel also

stated that Father had four employers since 2004.


                                              6
       On April 23, 2013, the court entered an Order Upon Hearing Held On December

3, 2012, in which the court noted that, at the hearing, Mother withdrew the aspects of her

request seeking to hold Father in contempt and instead requested that the court address

only the issues of Father’s support arrearage. The court noted that Mother conceded at

the hearing that a mathematical error is reflected in the Settlement Agreement and that

the amount should have been 22.4% and not 27%.            The court found that “having

considered the [Settlement] Agreement and the arguments finds that Father’s proffered

interpretation of the [Settlement] Agreement is the most reasonable construction of [its]

provisions upon child support based on Father’s irregular income,” that “[t]he irregular

income provisions of the [Settlement] Agreement were based upon Father’s employment

at the time that the Parties entered into such agreement and clearly reference what was, at

the time, a clear change in Father’s compensation structure with his then-current

employer,” that “[m]oreover, there is no indication in the Agreement that the Irregular

income child support provision was intended to apply in perpetuity across all of Father’s

subsequent employers,” and thus that “Father’s current child support of $92.34 per week

remained in effect since the entry of the [Settlement] Agreement.” Appellant’s Appendix

at 37. The court found that Father’s total support arrearage as of the December 3, 2012

hearing was $5,539.27, that the amount should be credited in the amount of $833 for

funds that Father paid to satisfy certain marital obligations, and thus that the total

arrearage in current support is $4,706.27.

       The court further found that the evidence demonstrated a substantial change in

circumstances since the entry of the Settlement Agreement such that its terms on child

support were no longer reasonable, determined that Father’s weekly gross income was
                                         7
$1,559, determined that Mother’s weekly gross income was $958, allocated parenting

time credit for Father, found that Mother provided health insurance for the children, and

established Father’s weekly current child support to be $239. The court ordered that the

modification of support be retroactive to December 3, 2012, that Father’s total arrearage

was $7,639.47, consisting of the arrearage of $4,706.27 and the arrearage due from

December 3, 2012 to the date of the order of “$2,933.20 (20 weeks at $146.66 ($239.00-

$92.34)),” that Father should pay an additional amount of $26 per week until his

arrearage was paid in full, and that thus Father’s weekly child support obligation was set

at $265. Id. at 38. Finally, the court ordered that Father’s new support obligation be

phased in, that Father pay $150 per week from the date of the order until May 31, 2013,

that he pay $200 beginning on June 7, 2013, and that he pay $265 beginning on August 5,

2013.

        Mother filed a motion to correct errors arguing that the court erred in failing to

enforce the clear and unambiguous terms of the original support order, that “[t]he

percentage of additional income portion of the child support Order . . . was based upon

potential gross monthly earnings, and did not specify that those earnings had to be

commissions or only from the job that Father had at the time,” that Father continued to

receive commission income, as well as salary and bonus income, from various

employment positions he held,” and that “[a]s a result, Father’s income still fluctuated

and was still based upon irregular components of various types.” Id. at 43. Mother also

argued that the court erred in phasing in the modified support obligation and failing to

modify Father’s support retroactively to the filing of Mother’s February 23, 2012

petition. The court denied Mother’s motion to correct errors.
                                           8
                                        DISCUSSION

       The issue is whether the trial court abused its discretion or erred in denying her

motion to correct errors and in entering its April 23, 2013 order. We generally review

rulings on motions to correct error for an abuse of discretion. Ind. Bureau of Motor

Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind. Ct. App. 2009); Speedway SuperAmerica,

LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied.                  An abuse of

discretion occurs if the trial court’s decision is against the logic and effect of the facts and

circumstances before it, or the reasonable inferences drawn therefrom. Lighty v. Lighty,

879 N.E.2d 637, 640 (Ind. Ct. App. 2008), reh’g denied. “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 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).

       Mother contends that the court erred in modifying the child support obligation

agreed upon by the parties in the Settlement Agreement by failing to enforce its clear and
                                            9
unambiguous terms.       Specifically, Mother asserts that the plain language of the

Settlement Agreement provided for the method of child support computation at all times,

that if the parties had intended that it apply only to Father’s job at the time it would have

designated such, and that if the parties had intended to later completely eliminate the

percentage of earnings in excess of the base weekly salary then they would have provided

as such in the agreement. Mother further argues that Father never provided her with

documentation of his gross monthly earnings and contends that the court erred in phasing

in his newly modified support obligation as he had ample time to adjust to the notion of

paying additional child support from the date she filed her petition on February 23, 2012.

She also contends that the court erred in modifying support as of the date of the hearing

on December 3, 2012 instead of the date she filed her petition.

       Father maintains that the court’s order should be affirmed and that the court

correctly interpreted the Settlement Agreement. He points to the language of Paragraph

2.B. of the Settlement Agreement which states that the support obligation “set forth in the

preceding paragraph is premised solely upon [his] anticipated 2004 base salary.”

Appellant’s Brief at 9-10 (citing Appellant’s Appendix at 17). Father argues that, if the

parties had wanted the irregular income provisions to apply in perpetuity across all

employers, then they would not have drafted an agreement that repeatedly referred to the

fact that the provisions were “expressly” based upon Father’s current employment and

that the court’s conclusion that the provisions were not intended to apply to other

employers should be affirmed. Father also argues that the court’s decision to phase in his

modified support obligation was not an abuse of discretion.


                                             10
       In her reply brief, Mother argues that the fact that the agreement was based upon

then-current income and employment of the parties does not render any of those

agreements modified, partially enforceable or ambiguous when one or both parents

changed jobs. She contends that the phrase “premised solely upon Husband’s anticipated

2004 base salary” does not equate to an agreement that provides for modification upon a

change in job or a change in pay structure, that all child support agreements are

presumably based upon the parties’ anticipated or current income and employment, and

that the mention of Father’s anticipated base salary was only to show that the parties did

not know “what his future base income might be as it was a new pay arrangement . . . .”

Appellant’s Reply Brief at 4-5.

       In general, a dissolution court “retains jurisdiction to interpret the terms of its

decree and decide questions emanating from its decree pertaining to its enforcement.”

Bandini v. Bandini, 935 N.E.2d 253, 260 (Ind. Ct. App. 2010) (citing Fackler v. Powell,

839 N.E.2d 165, 169 (Ind. 2005)). “Settlement agreements become binding contracts

when incorporated into the dissolution decree and are interpreted according to the general

rules for contract construction.” Id. (citing Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind.

2008)). Unless the terms of a contract are ambiguous, courts will merely apply the terms,

giving them their plain and ordinary meaning, and will not construe the contract or look

at extrinsic evidence. Id. (citation omitted). Terms are ambiguous if a reasonable person

would find them subject to more than one interpretation, but are not ambiguous merely

because the parties disagree concerning their proper interpretation. Id. (citation omitted).

“Interpretation of a settlement agreement, as with any other contract, presents a question

of law and is reviewed de novo.” Id. (citing Bailey, 895 N.E.2d at 1217). One of the
                                          11
purposes of child support is to provide a child with regular and uninterrupted support.

Hicks v. Smith, 919 N.E.2d 1169, 1171 (Ind. Ct. App. 2010), trans. denied.                          “[A]

noncustodial parent may not unilaterally reduce proportionately a support order in gross

for several children but must make payments of support in the manner, amount and at

times required by the support, at least until such order has been set aside.” Nill v. Martin,

686 N.E.2d 116, 117 (Ind. 1997) (citations omitted).

       The Settlement Agreement, approved by the court and made a part of the Decree,

provides that Father would pay child support consisting of two components: (1) a weekly

base child support obligation of $92.34 under Paragraph 2.A., premised upon a base

weekly salary at the time of $400 per week; and (2) an additional weekly support

obligation.     With respect to the latter, Paragraph 2.B. of the Settlement Agreement

provides that “the parties agree that [Father] shall pay to [Mother] [a] monthly sum equal

to twenty-seven (27%) percent[5] . . . of his gross monthly earnings in excess of his base

weekly salary of Four Hundred ($400.00) Dollars as and for additional support of the

parties’ minor children.” Appellant’s Appendix at 17. The parties do not dispute the

manner in which the additional weekly support obligation should have been calculated.

Rather, they disagree as to whether Father was required to pay this additional weekly

support obligation after his employment with TPC, his employer at the time of the

Decree, had ended or terminated.

       The plain language of Paragraph 2.B. requires Father to pay additional weekly

child support in an amount equal to a fixed percentage of his weekly gross income.

Accordingly, in the event that Father’s gross income was to increase, his additional

       5
           As previously noted, Mother concedes the applicable percentage should have been 22.4%.
                                                   12
support obligation and thus total support obligation would increase. Similarly, if Father’s

gross income was to decrease, his additional and total child support obligation would

decrease. We note that the language of the clause requires Father to pay a weekly

amount of additional support equal to a percentage of his “gross monthly earnings” in

excess of $400 and does not expressly or implicitly limit the additional support to a

percentage of those earnings based on commissions or other types or forms or earnings.

Id. This observation, at a minimum, favors an interpretation of the Settlement Agreement

that Father’s total support obligation was intended to be based in some manner upon his

total income in whatever form or combination of forms the income is earned.

       Moreover, although Father argues that the language of Paragraph 2.B. merely sets

forth the formula to be used to determine his support while employed for TPC, we cannot

agree. The clause does not expressly contain such a limitation. The provision does not

state that the additional child support component of his total support obligation would be

eliminated or reduced at a future date based upon a change in his employer or a change in

the form of his income.      We conclude that the plain language of the Settlement

Agreement provides that Father’s child support obligation is a variable amount,

increasing or decreasing depending upon his total gross income.           See Cochran v.

Rodenbarger, 736 N.E.2d 1279, 1281 (Ind. Ct. App. 2000) (noting that “[t]he plain

language of this clause requires Mother to pay child support in an amount equal to 16%

of her gross income,” that “[a]lthough Mother argues that the language in this clause

merely set the formula to determine her child support obligation when it arose initially,

we disagree,” that “[t]he clause contains no such limitation: it does not provide that

Mother will pay 16% of her gross wages from her first full-time job,” that “[r]ather, it
                                       13
simply instructs Mother to pay 16% of her gross wages, whatever that amount may be,”

and that “the plain language of the settlement agreement provides that Mother’s child

support obligation is a variable amount, going up or down depending upon her income”).

This interpretation of Paragraph 2.B. of the Settlement Agreement is consistent with the

idea or presumption that Mother and Father intended for Father’s support obligation to

ensure continuing appropriate support for the children. See Schwartz v. Heeter, 994

N.E.2d 1102, 1106 (Ind. 2013) (interpreting a child support provision in a settlement

agreement which provided in part that the parties’ respective child support obligation

would be recalculated annually based upon the parties’ income as reported on their tax

returns and noting that “we presume that when parents agree to regularly review their

support obligations, it is for the broad purpose of ensuring appropriate support for their

children, and not merely to stipulate a particular formula for calculating that support”).

       With respect to the language in Paragraph 2.B. that “the Parties expressly

acknowledge that [Father’s] employer has moved him from a salaried status to a base

salary plus commission pay plan,” Appellant’s Appendix at 17, we observe that the

language is an acknowledgment of the reason for the parties’ agreement to divide

Father’s total support obligation into two components, namely, that Father’s income may

be irregular due to his possibly fluctuating income and that the parties desired to take that

fact into account. The Indiana Supreme Court and the Indiana Child Support Guidelines

encourage parents to innovate in finding ways to account for irregular income and in

crafting solutions which promote settlement agreements. See Child Support Guideline

3.A.1. (defining “weekly gross income” to include salaries, wages, commissions, and

bonuses); Commentary 2.b. to Child Support Guideline 3.A. (noting that one method of
                                        14
treating irregular income is to require the obligor to make payments of a certain ratio or

percentage of the obligor’s irregular income and stating that “[j]udges and practitioners

should be innovative in finding ways to include income that would have benefited the

family had it remained intact”); Schwartz, 994 N.E.2d at 1105-1106 (observing that

“[i]rregular income creates an unavoidable tension between the twin goals of a child

support determination: (1) giving children the support they need (2) based on

ascertainable, dependable income,” that “accounting for it has long challenged courts and

practitioners,” and that “[a]llowing the flexibility to craft innovative solutions promotes

settlement agreements, which Indiana law expressly encourages”) (citations and internal

quotation marks omitted). In addition, the parties’ acknowledgment of the form of

Father’s income at the time of the Settlement Agreement does not suggest that the parties

intended that his total support obligation be based on an income amount which did not

include his irregular income after his employment with TPC ended.

       Further, the language in Paragraph 2.B. that “[t]he child support obligation of

[Father] as set forth in the preceding paragraph is premised solely upon [Father’s]

anticipated 2004 base salary,” Appellant’s Appendix at 17, is a reference to Paragraph

2.A. of the Settlement Agreement which set forth the component of Father’s support

obligation based on his base weekly salary. This sentence reiterates that the weekly base

child support obligation, set forth in Paragraph 2.A. and premised on a weekly gross

income of $400, is one of two components comprising Father’s total obligation and that

the other component, set forth under Paragraph 2.B. and premised on Father’s weekly

gross income in excess of $400, is also a part of Father’s total support obligation. The

statement does not suggest in any way that the additional support amount described in
                                         15
Paragraph 2.B. was not intended to be a component of Father’s total support obligation at

the time of the Settlement Agreement or at a later time based on Father’s employer or

form of income. Finally, the language that Mother reserved the right to revisit the issue

of child support “without being subjected to the conditions for support modification as set

forth in the Child Support Guidelines,” Appellant’s Appendix at 17, does not suggest that

Father’s support obligation based on his weekly gross income in excess of $400 was not a

part of Father’s total support obligation. The clause merely provided that Mother could

seek a modification without first satisfying the conditions of the Support Guidelines. See

Child Support Guideline 4 (“The provisions of a child support order may be modified

only if there is a substantial and continuing change of circumstances.”); Commentary to

Child Support Guideline 4 (“Before a child support order may be modified in Indiana, it

is necessary for a party to demonstrate a substantial and continuing change in

circumstances that makes the present order unreasonable or that the amount of support

ordered at least twelve (12) months earlier differs from the Guideline amount presently

computed by more than twenty percent (20%) . . . .”).

       We conclude that Father was required to pay the additional weekly support

obligation set forth in Paragraph 2.B. as part of his total support obligation after his

employment with TPC ended. While the child support order was subject to modification,

Father never petitioned the court to modify his support obligation. Accordingly, the trial

court erred in calculating Father’s total child support arrearage. While the total arrearage

should include the arrearage attributable to his weekly base support obligation (found by




                                            16
the trial court to be $5,539.276 less a credit of $833 for funds that Father paid to satisfy

certain marital obligations), Father’s total arrearage should also include the arrearage

accrued by Father in failing to make payments under Paragraph 2.B. of the Settlement

Agreement. Mother presented evidence of Father’s gross income for the years 2004

through 2011 and a calculation of Father’s arrearage under Paragraph 2.B. which showed

that Father’s arrearage based upon his gross earnings in excess of his base salary was

$47,495. We reverse the trial court’s determination of Father’s arrearage and remand to

the trial court to make a determination and enter findings as to Father’s total support

arrearage which includes the arrearages attributable to his base support obligation and to

his additional support obligation, and to determine an additional amount Father shall pay

weekly toward his total arrearage.7

        Finally, Mother does not challenge and we do not disturb the trial court’s

calculation of Father’s current weekly support obligation of $239. To the extent Mother

argues that the court abused its discretion in phasing in the current support obligation, we

note that the Commentary to Ind. Child Support Guideline 4 allows for consideration to

be given to phasing in an increase in support if it would result in “a drastic reduction in a

parent’s standard of living.” The trial court found that it was appropriate to phase in

Father’s modified child support obligation due to the fact that the amount Father would

now be paying was an increase of over fifty percent of what he had been paying.

        6
         As noted above, it appears this amount was computed in part based upon a weekly base support
of $93.24 instead of $92.34 as set forth in the Settlement Agreement.
        7
          Because we remand for a determination of Father’s total arrearage based on the terms of the
Settlement Agreement, we need not address any argument by Mother that the trial court’s order had the
effect of impermissibly modifying the support order retroactively. See Cochran, 736 N.E.2d at 1281
n.1 (“Due to our resolution of this issue, we need not address Mother’s contention that the trial court’s
order had the effect of impermissibly modifying the support order retroactively.”).
                                                   17
Pursuant to this opinion, Father also now has a significant arrearage to pay. In light of

these circumstances, we cannot say that the phase-in schedule set forth in the April 23,

2013 order was improper and we affirm that part of the trial court’s order. However, it is

unclear as to how much of the amounts ordered to be paid during the phase-in period

were to be attributed to Father’s arrearage. On remand, after determining the weekly

amount Father is to pay toward the arrearage, the court is to determine the amounts to be

paid during the phase-in period, and the portion of each such payment attributed to the

arrearage.

                                    CONCLUSION

       For the foregoing reasons, we reverse the trial court’s order denying Mother’s

motion to correct errors and the court’s April 23, 2013 order related to Father’s total

arrearage and the additional weekly amount he must pay toward his arrearage, affirm the

phase-in schedule of Father’s modified support payments, and remand for proceedings

consistent with this opinion.

       Affirmed in part, reversed in part, and remanded.

BARNES, J., concurs.

ROBB, J., dissents with separate opinion.




                                            18
                              IN THE
                    COURT OF APPEALS OF INDIANA

IN RE THE MARRIAGE OF:                            )
                                                  )
ANNETTE M. HUSEMAN, f/k/a                         )
ANNETTE M. MANTIS,                                )
                                                  )
       Appellant,                                 )
                                                  )
              vs.                                 )      No. 45A04-1307-DR-351
                                                  )
ANGELO N. MANTIS,                                 )
                                                  )
       Appellee.                                  )


ROBB, Judge, dissenting


       The trial court in its order made factual findings, apparently on its own motion.

Thus, we should not set aside a specific finding unless it is clearly erroneous, that is,

unless there are no facts or inferences to be drawn therefrom which support it. Perkinson

v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).          I believe the trial court’s finding

interpreting the provision of the parties’ Settlement Agreement regarding child support is

supported by the facts and by the inferences to be drawn from the agreement itself, and I

therefore respectfully dissent from the majority’s decision reversing the trial court’s order

regarding Father’s arrearage.

       Paragraph 2.B. of the support provision begins, “the parties expressly


                                             19
acknowledge that [Father’s] employer has moved him from a salaried status to a base

salary plus commission pay plan.” Appellant’s Appendix at 17. It also specifically

references his anticipated 2004 base salary and reserves to Mother the right to revisit

support without having to show changed circumstances or wait at least twelve months.

See Ind. Code § 31-16-8-1(b). At the hearing on the parties’ post-dissolution motions,

the child support issues were presented summarily by the parties’ attorneys. Father’s

attorney stated that at the time the Settlement Agreement was entered into in February

2004, both parties knew he was looking for new employment, and he did in fact find new

employment within three months. Mother’s attorney also acknowledged that the support

paragraphs of the Settlement Agreement were crafted “in anticipation that [Father’s]

employment would change and he would become gainfully employed . . . .” Transcript at

13.   It is within this context that the trial court determined the “most reasonable

construction” of the support provision is that it was intended to apply only to Father’s

compensation from his then-current employment. I agree with the trial court.

      The majority states that the plain language of Paragraph 2.B requires Father to pay

a weekly amount of additional child support and that amount is not expressly or

implicitly limited to a percentage of earnings based on commissions or other irregular

income. See slip op. at 13-14. I agree that the provision does not limit the additional

support to a percentage of a particular kind of income; but I do believe it limits the

additional support to a particular source of income—that is, income in excess of his base

weekly salary from his then-current job. The majority also states its interpretation of the

provision is consistent with the idea that the parties intended to “ensure continuing

appropriate support for the children.” Id. at 15. However, specifically including an
                                         20
exception to the normal requirements for modification and allowing Mother to seek

revision of the support obligation when circumstances changed—as the parties apparently

anticipated was imminent—also serves that purpose under the trial court’s interpretation.

Moreover, although admirably attempting to deal with a then-uncertain financial

situation, the provision—which requires a mathematical formula to be applied monthly,

supporting documentation to be provided, and results in a fluctuating child support

amount—would be untenable as a long-term solution.

       As to Mother’s contention that the trial court’s interpretation is an improper

retroactive modification of the support provision, I disagree. The trial court’s order does

not modify the provision, it simply applies it as the trial court found it was intended to be

applied. That the provision references Father’s particular employer and the particular

year limits its effectiveness to those particular circumstances and the onus was on Mother

to avail herself of the opportunity to revisit child support when those circumstances

changed. In short, I believe the trial court’s interpretation of Paragraph 2.B is supported

by the facts and is not clearly erroneous, and I would affirm the trial court’s order in its

entirety.




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