                                                                               FILED
                                                                           Jun 28 2019, 8:33 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Edward J. Calderaro                                         George P. Galanos
      Kristin R. Valdivia                                         Crown Point, Indiana
      Sachs & Hess, P.C.
      St. John, Indiana




                                                   IN THE
           COURT OF APPEALS OF INDIANA

      In the Matter of the Paternity of                           June 28, 2019
      T. M.-B. (Child),                                           Court of Appeals Case No.
                                                                  18A-JP-2907
      Robert E. Bush,
                                                                  Appeal from the Lake Superior
      Appellant-Petitioner,                                       Court
              v.                                                  The Honorable Thomas P.
                                                                  Stefaniak, Judge
      Julie Mapletoft,                                            The Honorable Aimee M. Talian,
                                                                  Magistrate
      Appellee-Respondent
                                                                  Trial Court Cause No.
                                                                  45D06-1203-JP-694



      May, Judge.


[1]   Robert E. Bush (“Father”) appeals the paternity order entered in his action

      against Julie Mapletoft (“Mother”) regarding the support of their daughter, T.

      M.-B. (“Child”). He raises six issues for our review, which we restate as:


      Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019                            Page 1 of 15
              1. Whether the trial court abused its discretion in holding Father’s

              gambling income should be treated as regular income for the purpose of

              calculating Father’s child support obligation;


              2. Whether the trial court abused its discretion in awarding Mother

              credit for healthcare premiums in the amount ordered;


              3. Whether the trial court abused its discretion in clarifying a previously

              agreed order to provide a price range and other guidance to govern the

              purchase of a horse for Child; and


              4. Whether the trial court abused its discretion in finding Father in

              contempt for failing to pay for horseback riding lessons for 2017-18 and

              for failing to purchase a saddle for Child.


      We affirm in part, reverse in part, and remand.



                             Facts and Procedural History
[2]   Mother and Father have one daughter, Child. Child was born in 2005. On

      June 10, 2013, the trial court determined Father’s paternity of Child and

      ordered Father to pay $690.00 per week in child support. The decree directed

      Mother to carry Child on her work-related health insurance policy. It also

      directed Father to pay 84% and Mother to pay 16% of the costs associated with

      Child’s extracurricular activities. On March 13, 2015, the court entered an

      agreed order after both Mother and Father filed verified motions for contempt.

      In relevant part, the order provided:
      Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019         Page 2 of 15
              B. That the 2015-2016 extra-curricular activities will be
              horseback riding and gymnastics. Mother will pay all of the
              gymnastics fees if the child decides to do gymnastics. Father will
              pay all of the horseback riding fees and will buy the child a horse
              and saddle.


              C. That for the years after the 2015-2016 school year, the mother
              and father will discuss the extra-curricular activities the child
              chooses and whatever activities are agreed upon, father will pay
              84% directly to the school if it is allowed to be paid that way. If
              not, then he will pay mother and she will pay the bill.


      (App. Vol. 2 at 33-34.)


[3]   The Illinois State Lottery pays Father an annuity in the gross amount of

      $423,000.00 per year, and Father supplements this income with casino

      winnings. Between 2015 and 2017, Father won substantial net amounts at

      casinos: $164,500.00 in 2015; $90,865.00 in 2016; and $229,415.00 in 2017.


[4]   In May 2016, Mother filed a Verified Petition for Modification of Child

      Support and the Child’s Medical Health Coverage. On June 1, 2017, Mother

      filed a Verified Petition for Rule to Show Cause asserting Father was in

      contempt for failure to pay child support, failure to pay Child’s horseback riding

      fees, and failure to purchase a horse and saddle for Child. The trial court held a

      hearing on both petitions on October 24, 2018.


[5]   At the hearing, Kieran Dulik, Child’s horseback riding instructor, was certified

      as an expert in that field and testified regarding her experience with Child and

      Child’s riding abilities. Dulik has eighteen years of professional experience


      Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019         Page 3 of 15
      teaching others to ride horses. She began training Child in 2017 in the hunter-

      jumper style of horseback riding. Child is a beginner when it comes to

      horseback riding, but she is passionate about the sport and participates in

      weekly lessons. Child currently uses Dulik’s schooling saddle and the cost for

      borrowing the saddle is included in the Child’s lesson fee.


[6]   Dulik testified some horses perform better in the hunter-jumper style than

      others and a horse and rider must have good chemistry. Dulik recommended

      an experienced horse in the $10,000 to $15,000 price range for a beginning rider

      like Child, and Mother agrees with this recommendation. Father believes a

      suitable horse can be found below this price range. Father provided Mother

      with a list of horses he is willing to purchase for Child, including a horse worth

      $800. However, Dulik testified that a typical $800 horse would not be suitable

      for Child because such horses are old and cannot be ridden in the hunter-

      jumper style. Consequently, the parties have not agreed on the proper horse to

      purchase for Child.


[7]   As to Child’s healthcare coverage, Mother testified she began paying for health

      insurance through Ambetter in December 2017. For the years 2016 and 2017,

      Mother purchased health insurance for herself and Child through COBRA.

      Prior to 2016, Mother was married, and her husband covered Child on his

      health insurance.


[8]   On November 9, 2018, the court issued an order with findings of fact and

      conclusions of law. The court’s findings adopt Mother’s recalculation of


      Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019        Page 4 of 15
Father’s child support obligation for 2016 and 2017. Thus, the court ordered

Father’s 2016 child support obligation to be $788.43 per week, retroactive to the

date of Mother’s petition to modify. The court also determined Father’s 2017

child support obligation was $978.14 per week. The court awarded Mother

credit of $89.36 per week for Child’s weekly health insurance premium for

2016, 2017, and 2018. In relevant part, the order also stated:


        5. Father receives a yearly annuity in the amount of $423,000.00.
        The additional income reflected on Father’s annual tax returns
        are the result of Father’s casino winnings related to his endeavors
        as a professional gambler. Father’s annual gambling proceeds
        have and will continue to vary from year to year. Therefore, for
        purposes of determining Father’s income for the year 2018, the
        Court will utilize an average of Father’s income from the two
        prior years.


        6. Father’s average weekly income for the year 2018 is
        $11,214.23…Father is ordered to pay child support in the amount
        of $878.00 per week for the year 2018 and going forward.


                                                *****


        11. The minor child currently attends horse riding lessons. This
        Court’s order of March 13, 2015 requires Father to pay for the
        child’s lessons in 2015-2016. This Court does not believe that the
        parties intended to return to Court every year when the child
        decided to continue with horse riding lessons. Mother has
        incurred $1,350.00 in lesson fees for the minor child during the
        year 2017 and seeks to have Father pay those expenses pursuant
        to the March, [sic] 2015 order.


(App. Vol. 2 at 22-23.)

Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019         Page 5 of 15
[9]    The court found Father in contempt for failure to pay Child’s 2017 horse riding

       fees and ordered Father to reimburse Mother for the 2017 horse riding lesson

       fees in order to purge himself of contempt. The court did not find Father in

       contempt for failure to purchase a horse but did find him in contempt for failure

       to purchase a saddle. The court ordered the parties to exchange lists of

       potential horses for Child in the $3,000.00 to $10,000.00 price range and to visit

       the horses. Mother, Father, and Child are to be involved in the decision to

       purchase the horse, with the opinion and assistance of Child’s instructor being

       considered. If the parties cannot agree on a suitable horse, Father may make

       the final decision.



                                   Discussion and Decision
[10]   A trial court’s calculation of child support is presumed to be valid and is

       reviewed for an abuse of discretion. Ashworth v. Ehrgott, 982 N.E.2d 366, 372

       (Ind. Ct. App. 2013). An abuse of discretion occurs when a trial court’s

       “decision is clearly against the logic and effect of the facts and circumstances

       before it or if it has misinterpreted the law.” Id. Similarly, the issue of

       contempt is left to the sound discretion of the trial court and we review such

       findings under an abuse of discretion standard. Reynolds v. Reynolds, 64 N.E.3d

       829, 832 (Ind. 2016).


[11]   Where the trial court issues specific findings sua sponte, as it did in this case, the

       specific findings control our review and the judgment only as to the issues those

       Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019             Page 6 of 15
       specific findings cover. Trust No. 6011, Lake County Trust Co. v. Heil’s Haven

       Condos. Homeowners Ass’n, 967 N.E.2d 6, 14 (Ind. Ct. App. 2012), trans. denied.

       Where there are no specific findings, a general judgment standard applies, and

       we may affirm on any legal theory supported by the evidence. Id. We apply a

       two-tier standard in evaluating sua sponte findings and conclusions: (1) whether

       the evidence supports the findings, and (2) whether the findings support the

       judgment. Id. We do not reweigh the evidence or assess the credibility of the

       witnesses. Mitchell v. Mitchell, 875 N.E.2d 320, 322 (Ind. Ct. App. 2007), trans.

       denied.


                                      Father’s Gambling Income
[12]   Father argues the trial court improperly treated his gambling income as regular

       income in determining his child support obligation. A trial court determines a

       child support obligation by looking at each parent’s gross weekly income, which

       is the actual gross weekly income of a parent employed to his or her full

       capacity, the potential income of a voluntarily unemployed or underemployed

       parent, and any imputed income based upon in-kind benefits. Meredith v.

       Meredith, 854 N.E.2d 942, 947 (Ind. Ct. App. 2006). The court determines a

       parent’s potential income by looking at “the obligor’s potential and probable

       earnings level based on the obligor’s work history, occupational qualifications,

       prevailing job opportunities, and earnings levels in the community.” Id.

       However, a parent’s past earnings do not necessarily guarantee future earnings.

       Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019         Page 7 of 15
       “Overtime, commissions, bonuses, and other forms of irregular income are

       included in the total income approach provided by the Guidelines, ‘but each is

       also very fact-sensitive.’” Id. at 948 (quoting Child Supp. G. 3, cmt. 2(b)).

       Father relies on Meredith to argue that his casino earnings should be treated as

       irregular income, with the court ordering Father to pay a fixed percentage of his

       gambling earnings rather than ordering him to pay a specific amount.


[13]   However, Father’s gambling earnings differ from the overtime earnings

       discussed in Meredith. Overtime earnings depend on the whims of an employer.

       A person may volunteer to work overtime, but the employer ultimately controls

       whether the person will have the opportunity to work overtime and the amount

       of overtime the person will work. Father, in contrast, is a self-employed

       professional gambler. Gambling is not a mere hobby for Father. It is his

       occupation. His profession is fraught with risk, but it has an alluring upside.

       He controls when he goes to the casino, how long he spends at the casino, and

       how much money he risks at the casino.


[14]   In Trabucco v. Trabucco, the husband was a urologist who was arrested for

       maintaining a marijuana grow operation and convicted of marijuana

       possession. 944 N.E.2d 544, 547 (Ind. Ct. App. 2011), trans. denied. Husband’s

       income fluctuated after the conviction because his medical license was briefly

       suspended, he had difficulty obtaining malpractice insurance, he lost patients,


       Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019         Page 8 of 15
       and he experienced other problems. Id. at 547-48. The trial court calculated

       husband’s gross weekly income by taking the income reported on husband’s tax

       returns over a five-year period, disregarding the highest and lowest annual

       incomes, and averaging the incomes for the remaining three years. Id. at 548.

       We affirmed the trial court’s income calculation. Id. at 553. Courts often use

       income averaging to determine the gross weekly income of self-employed child

       support obligors. Id. at 552. We noted “all forms of self-employment create

       some level of unpredictability in income, and such factual determinations are

       best left to the trial court.” Id.


[15]   Similarly, in the case at bar, we will not substitute our judgment for that of the

       trial court. Thus, we cannot say the trial court abused its discretion in

       determining Father’s gross weekly income by averaging his gambling earnings

       and adding that amount to his annuity income. See In re Paternity of G.R.G., 829

       N.E.2d 114, 119 (Ind. Ct. App. 2005) (holding trial court did not abuse its

       discretion by determining obligor’s gross income by averaging his fluctuating

       income).


                        Award of Healthcare Premiums to Mother
[16]   Father asserts the trial court erred in awarding Mother health insurance

       premium credit for half of 2016 and most of 2017. He argues these health

       insurance premiums were paid by Mother’s ex-husband. However, Mother’s

       testimony indicates that while Child was covered under Mother’s ex-husband’s

       Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019           Page 9 of 15
       health insurance for a time, she was not covered during the 2016-2017

       timeframe. Mother was paying COBRA, and Mother testified that COBRA

       cost $1,053 per month for her and her daughter. Father’s argument that the

       trial court erroneously credited Mother for health insurance premiums is merely

       a request for us to reweigh the evidence, which we will not do. See Ponziano

       Const. Servs., Inc. v. Quadri Enters., LLC, 980 N.E.2d 867, 873 (Ind. Ct. App.

       2012) (appellate court does not reweigh evidence or judge the credibility of

       witnesses).


[17]   Father also argues the trial court erroneously awarded Mother credit for half of

       her total health insurance premium through Ambetter in calculating child

       support because he claims Mother failed to produce evidence regarding what

       portion of her health insurance premium is attributable to her and what portion

       is attributable to Child. Mother testified that her insurance premium cannot be

       broken down to determine what portion covers her and what portion covers

       Child. We cannot say the trial court abused its discretion in its award of credit

       for the healthcare premiums to Mother because evidence in the record supports

       the trial court’s allocation. See In re Paternity of Jo.J., 992 N.E.2d 760, 771 (Ind.

       Ct. App. 2013) (rejecting invitation to reweigh the evidence and holding trial

       court’s determination of Mother’s weekly gross income was not clearly

       erroneous).




       Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019          Page 10 of 15
                           Modification of Settlement Agreement
[18]   Father argues the trial court impermissibly modified a settlement agreement

       when it specified a price range and conditions for the horse Father is to

       purchase for Child. The general rules of contract interpretation govern the

       interpretation of a settlement agreement. Kiltz v. Kiltz, 708 N.E.2d 600, 602

       (Ind. Ct. App. 1999), trans. denied. If a contract is unambiguous, the court looks

       to the “four corners” of the document to determine the intent of the parties.

       McCord v. McCord, 852 N.E.2d 35, 43 (Ind. Ct. App. 2006), trans. denied.

       However, if a contract term is ambiguous, the court may allow evidence to

       clarify the ambiguity. Id. A term is ambiguous if reasonably intelligent people

       can differ as to the meaning of the term. Id.


[19]   The term “horse” in the March 13, 2015, agreed order is ambiguous because

       two reasonable people can interpret “horse” differently. There are many

       different breeds of horse, horses vary in price, and a rider will get along with

       some horses better than others. For instance, in this case, Father offered to

       purchase a horse with a sale price of $800, but Mother interprets “horse” to

       mean an animal worth over $10,000. Thus, the trial court did not err in taking

       evidence to clarify the meaning of the contract term “horse.” Father testified

       that he wants Child to ride a horse that is safe and that he wants to be involved

       in selecting the horse. The trial court did not err in clarifying the term “horse”

       to be a steed that will meet Child’s needs without being unduly expensive or in

       Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019        Page 11 of 15
       providing a procedure for the parties to choose a suitable horse. See Shepherd v.

       Tackett, 954 N.E.2d 477, 482 (Ind. Ct. App. 2011) (holding trial court’s order on

       meaning of “assignment” in dissolution decree was a clarification rather than a

       modification of the decree).


                                                    Contempt
[20]   Father argues the court erred in finding him in contempt for failing to pay for

       Child’s 2017 and 2018 horseback riding lessons. A person is guilty of indirect

       contempt when he or she knows about a lawfully entered court order and

       willfully disobeys the order. Mitchell v. Mitchell, 785 N.E.2d 1194, 1198 (Ind.

       Ct. App. 2003). “However, the court’s order must be clear and certain such

       that there is no question regarding what a person may or may not do and no

       question regarding when the order is being violated.” Id. A court may not hold

       a party in contempt for failing to comply with an ambiguous or indefinite order.

       Id.


[21]   Father argues the 2015 order was ambiguous because it ordered him to pay

       horseback riding fees only for 2015 and 2016. We disagree. The order directs

       Father to reimburse Mother for Child’s extracurricular activities during the

       2014-2015 school year, allocates financial responsibility for the 2015-2016

       school year, and directs the parties to communicate regarding Child’s

       extracurricular activities after the 2015-2016 school year, with Father to pay


       Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019       Page 12 of 15
       84% of the fees associated with those activities. Therefore, even though the

       order mentions only 2015 and 2016, Father was aware of Child’s interest in

       horseback riding and knew he would have to bear at least some of the financial

       burden if she continued the lessons beyond 2016.


[22]   From the initial decree, the court apportioned a part of the ongoing expenses

       associated with Child’s extracurricular activities to Father. As the trial court

       notes in paragraph 11 of the November 9, 2018 order, the parties could not

       have intended to return to court every year for modification of the settlement

       agreement when Child decided she wanted to continue horseback riding

       lessons. The order anticipated the parties would communicate and Father

       would pay his stated percentage for horseback riding lessons, or some other

       extracurricular activity, beyond 2016. Father’s failure to pay constitutes

       contempt. See id. at 1198 (holding wife was in contempt when she surrendered

       a $100,616 life insurance policy for cash value and a court order directed her to

       transfer a $100,000 life insurance policy to daughter).


[23]   However, the trial court puts the cart before the horse in finding Father in

       contempt for failing to purchase a saddle, because expert testimony indicates a

       saddle must be fitted to the horse and the parties have not yet agreed on a horse.

       Kieran Dulik testified saddles “are fit to the horse that they are used for. So

       there are narrow, there are wide, there are longer flaps, shorter flaps, so you

       want it to fit the horse that it’s going to be used for.” (Tr. Vol. 2 at 21.) Child
       Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019          Page 13 of 15
       requires a jumping saddle, which can cost between $800 and $5,000. Dulik

       recommended a $1,200 saddle. Father testified that he is willing to purchase a

       saddle once the parties have agreed on a horse. However, Father and Mother

       disagree on the proper horse for Child and the March 13, 2015, order did not

       specify the type of horse, the age, or the cost of the horse. The trial court found

       Father to not be in contempt for his failure to purchase a horse but found Father

       in contempt because the March 13, 2015, order required him to purchase a

       saddle and he had not done so. These conclusions do not logically fit together.

       If Father is not in contempt for failing to purchase a horse, then he cannot be in

       contempt for failing to purchase a horse-specific accessory. Thus, Father

       should not be held in contempt for failing to purchase a saddle for a horse Child

       does not yet possess. See Paternity of J.W. v. Piersimoni, 79 N.E.3d 975, 982 (Ind.

       Ct. App. 2017) (reversing trial court’s finding of contempt because mother’s

       conduct did not amount to willful disobedience of court’s parenting time order).



                                                 Conclusion
[24]   The trial court did not abuse its discretion in calculating Father’s income,

       clarifying that the parties must find a horse for Child in the $3,000 to $10,000

       price range, crediting Mother for the payment of healthcare premiums, or

       finding Father in contempt for failing to pay for Child’s horseback riding

       lessons in 2017 and 2018. However, the trial court abused its discretion in

       finding Father in contempt for failing to purchase a saddle. Therefore, we

       Court of Appeals of Indiana | Opinion 18A-JP-2907 | June 28, 2019        Page 14 of 15
       affirm in part, reverse in part, and remand for further proceedings consistent

       with this opinion.


[25]   Affirmed in part, reversed in part, and remanded.


       Mathias, J., and Brown, J., concur.




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