MEMORANDUM DECISION                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                          Feb 28 2018, 10:38 am

this Memorandum Decision shall not be                                CLERK
                                                                 Indiana Supreme Court
regarded as precedent or cited before any                           Court of Appeals
                                                                      and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR                                             ATTORNEY FOR
APPELLANT/CROSS-APPELLEE                                 APPELLEE/CROSS-APPELLANT
Hayleigh J. Neumann                                      Richard D. Martin
The Nice Law Firm, LLP                                   Law Offices of Richard D. Martin
Indianapolis, Indiana                                    & Associates
                                                         Frankfort, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

G.B.,                                                    February 28, 2018
Appellant/Cross-Appellee-Petitioner,                     Court of Appeals Case No.
                                                         12A02-1708-DR-1874
        v.                                               Appeal from the Clinton Superior
                                                         Court
R.B.,                                                    The Honorable Justin H. Hunter,
                                                         Judge
Appellee/Cross-Appellant-Respondent,
                                                         Trial Court Cause No.
                                                         12D01-9210-DR-266



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 12A02-1708-DR-1874 | February 28, 2018   Page 1 of 8
[1]   G.B. (Father) and R.B. (Mother) have been divorced since 1992. Father has

      remained in arrears on his child support obligation for much of the past two

      decades. He argues that the trial court erred in calculating his current

      arrearage. Finding no error, we affirm. Mother also cross-appeals, arguing that

      the trial court seemingly limited her arrearage collection method to a final order

      of garnishment through proceedings supplemental. We remand with

      instructions to clarify Mother’s collections remedies as explained further herein.


                                                     Facts
[2]   Father and Mother were married and had two children, born in October 1986

      and April 1990. The marriage was dissolved on December 4, 1992. The decree

      of dissolution awarded physical custody of the children to Mother and ordered

      Father to pay child support in the amount of $78 per week.


[3]   On July 28, 2003, the trial court approved an agreed entry filed by the parties.

      The agreed entry provided that Father was in arrears on his child support

      obligations in the amount of $21,932; increased Father’s child support

      obligation to $120 per week; and ordered Father to pay an additional $50 per

      week towards the arrearage. On August 22, 2007, the trial court approved

      another agreed entry filed by the parties. This agreed entry stated that Father

      had an arrearage of $32,694.88.


[4]   On November 28, 2007, the trial court approved a third agreed entry filed by

      the parties. This agreed entry provided that Father was in arrears in the amount

      of $33,865.62 and directed that an Income Withholding Order (IWO) be

      Court of Appeals of Indiana | Memorandum Decision 12A02-1708-DR-1874 | February 28, 2018   Page 2 of 8
      entered for the regular weekly child support obligation of $120 plus a weekly

      $50 arrearage payment. That same day, Father filed a motion to modify his

      child support obligation. On January 23, 2008, the trial court approved an

      agreed entry that left the IWO in effect in the total amount of $170 per week,

      but directed that $90 be applied to his regular child support obligation and $80

      be applied to his arrearage.


[5]   On March 30, 2015, Father filed a pro se motion to terminate the IWO.

      Mother objected (“Mother’s Objection”), stating that the remaining balance of

      his arrearage, including interest, totaled $14,562.82. The trial court denied

      Father’s motion.


[6]   On December 8, 2016, Father filed a second pro se motion to terminate the

      IWO. Following a hearing,1 the trial court vacated the IWO and informed

      Father that he could petition the court for an order to command Mother to

      refund any overpayment he may have made. On January 18, 2017, Father filed

      a pro se motion for reimbursement in the amount of $287.22 plus interest.


[7]   On March 3, 2017, Mother filed a motion to determine child support arrearage,

      including an arrearage and interest calculator and Father’s payment history

      from November 28, 2007, through March 1, 2017. Father subsequently




      1
          Mother did not appear at that hearing.


      Court of Appeals of Indiana | Memorandum Decision 12A02-1708-DR-1874 | February 28, 2018   Page 3 of 8
       retained counsel and, on June 20, 2017, Father filed an amended motion for

       reimbursement in the amount of $14,980 plus attorney fees.


[8]    The trial court held a hearing on June 21, 2017. By agreement of the parties,

       counsel presented evidence to the trial court in summary fashion. Father’s

       attorney stipulated that his payment history provided by Mother was accurate.

       Father objected to Mother’s request for statutory interest and to the admission

       of her arrearage and interest calculator (“Exhibit One”) “due to a prior

       inconsistent statement.” Tr. p. 10. Exhibit One shows that Father had an

       arrearage on March 30, 2015, of $20,468.07, whereas Mother’s Objection had

       showed an arrearage on that same date of $14,562.82.


[9]    On June 26, 2017, the trial court found that Father had an arrearage of

       $7,872.99, including interest, and ordered that Father should pay $1,100 of

       Mother’s attorney fees. The trial court’s order directed that Father “shall make

       arrangements to pay the judgment within 30 days. The judgment may be

       collected, if not paid by [Father], through the issuance of a Final Order of

       Garnishment in Proceedings Supplemental.” Appealed Order p. 2. Father now

       appeals and Mother now cross-appeals.


                                    Discussion and Decision

                                          I. Father’s Appeal
[10]   Father argues, in essence, that the trial court should not have admitted

       Mother’s Exhibit One into evidence. The admissibility of evidence is within the



       Court of Appeals of Indiana | Memorandum Decision 12A02-1708-DR-1874 | February 28, 2018   Page 4 of 8
       trial court’s discretion, and we will reverse only upon a showing of error. In re

       Paternity of T.M., 953 N.E.2d 96, 99 (Ind. Ct. App. 2011).


[11]   Initially, we note that Father does not contest the accuracy of the arrearage

       amount calculated by Mother or found by the trial court. Instead, he argues

       that Mother should be irrevocably bound to the arrearage amount contained in

       Mother’s Objection, which did not include statutory interest and was, therefore,

       too low.


[12]   First, he contends that Mother’s Objection should be treated as an affidavit. As

       noted by Mother, however, the Objection is clearly a verified pleading and not

       an affidavit, as it contains none of the language required by Indiana Trial Rule

       11(B). Moreover, even if it were treated as an affidavit, there is no evidence

       whatsoever that Mother falsified the calculation of her arrearage therein.

       Instead, she inadvertently omitted statutory interest and later recalculated to

       include such interest. In any event, whether or not Mother’s Objection should

       be treated as an affidavit in no way affects the admissibility of Exhibit One.


[13]   Second, Father argues that the trial court should have considered Mother’s

       Objection to be a “prior inconsistent statement.” Appellant’s Br. p. 10. He

       does not explain, however, why this would render Exhibit One inadmissible.

       Moreover, it is evident that the trial court did, in fact, consider the discrepancy

       between the arrearage amount contained in Mother’s Objection and the

       arrearage amount contained in Exhibit One. The trial court acknowledged that

       there were “two inconsistent . . . sworn statements and . . . at some point I’ve


       Court of Appeals of Indiana | Memorandum Decision 12A02-1708-DR-1874 | February 28, 2018   Page 5 of 8
       got to decide what’s true.” Tr. Vol. II p. 7-8. The trial court then wondered

       whether, if Mother’s original calculation had been too high, Father would have

       objected to a later correction, and concluded that he would not have done so.

       Id. at 19. In any event, as the trial court considered both the original Objection

       and the subsequent Exhibit One and weighed them within its discretion, we

       find no merit to this argument.


[14]   Finally, Father seems to argue that Mother should be estopped from including

       the arrearage figure in Exhibit One because of the figure included in her original

       Objection. He does not, however, actually cite to the doctrine or elements of

       estoppel, nor would we find that the doctrine applies even if he had.


[15]   It is impossible to ignore the fact that Father does not argue that the arrearage

       figure is inaccurate. He stipulated to the accuracy of his payment history and

       does not contest the amount of interest owed on the arrearage. Therefore, he

       cannot establish that he was harmed by the admission of Exhibit One, which

       merely provides a correct calculation of the amount he owes. We decline to

       reverse the trial court’s calculation of the amount of Father’s arrearage.


                                           II. Cross-Appeal
[16]   Mother cross-appeals, arguing that the trial court erred by seemingly limiting

       her collection of the child support arrearage to a final order in garnishment

       through proceedings supplemental. We agree that the trial court’s order is

       somewhat unclear.



       Court of Appeals of Indiana | Memorandum Decision 12A02-1708-DR-1874 | February 28, 2018   Page 6 of 8
[17]   An order directing a person to pay a child support arrearage may be enforced by

       (1) a contempt finding; (2) an IWO; or (3) any other remedies available for the

       enforcement of a court order. Ind. Code § 31-16-12-1. In other words, Mother

       is not limited to a final order in garnishment through proceedings supplemental;

       she has other options—including an IWO—available.


[18]   Consequently, we remand to the trial court with instructions to clarify that

       Mother is not limited to collection of the arrearage through a final order in

       garnishment; she is entitled to the issuance of an IWO if she so chooses. 2 She

       is, however, limited to collection of the attorney fee award through a final order

       in garnishment through proceedings supplemental.


[19]   Mother also argues that she is entitled to appellate attorney fees because

       Father’s appeal is frivolous and made in bad faith. Ind. Appellate Rule 66(E).

       We do not find his appeal to be frivolous or in bad faith and do not, ourselves,

       award appellate attorney fees. The trial court, however, has discretion to

       apportion attorney fees in child support matters, and may act within that

       discretion should Mother petition the trial court for attorney fees incurred after

       its order was issued.




       2
        Mother argues that the trial court should also be required to suspend Father’s driving privileges (though
       such an order may be stayed if an IWO and payment plan are put in place). A trial court is required to do so
       only “as a result of an intentional violation of an order for support,” and here, the trial court has made no
       such finding, nor does Mother argue that Father’s arrearage is an intentional violation. I.C. § 31-16-12-17.
       Consequently, we see no basis on the record before us to direct that Father’s driving privileges be suspended.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1708-DR-1874 | February 28, 2018           Page 7 of 8
[20]   The judgment of the trial court is affirmed in part and remanded with

       instructions to clarify Mother’s collection remedies as stated herein and for

       further proceedings.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1708-DR-1874 | February 28, 2018   Page 8 of 8
