MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Mar 04 2019, 10:20 am

court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   APPELLEE PRO SE
Sarah Trostle                                            Joseph Entezari
Eimerman Law                                             Indianapolis, Indiana
Zionsville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Marriage of:                                  March 4, 2019

Mandana Khatibi-Entezari,                                Court of Appeals Case No.
                                                         18A-DR-1748
Appellant-Petitioner,
                                                         Appeal from the Hamilton
        v.                                               Superior Court
                                                         The Honorable Jonathan M.
Joseph Entezari,                                         Brown, Judge
                                                         The Honorable William P.
Appellee-Respondent.
                                                         Greenaway, Magistrate
                                                         Trial Court Cause No.
                                                         29D02-0807-DR-851



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-1748 | March 4, 2019                Page 1 of 10
                                       Statement of the Case
[1]   Mandana Khatibi-Entezari (“Mother”) appeals the trial court’s modification of

      child support in favor of Joseph Entezari (“Father”). Mother raises five issues

      for our review, which we restate as follows:


              1.      Whether the trial court erred when it found that Father
                      had overpaid his child-support obligations.


              2.      Whether the trial court erred when it concluded that the
                      original child-support order was not an in gross order.


              3.      Whether the trial court erred when it found that Father
                      had paid $5,640 in child support directly to Mother rather
                      than through the clerk of the court.


              4.      Whether the trial court erred when it made a downward
                      adjustment to Father’s income.


              5.      Whether the trial court erred when it found that Father
                      had satisfied his obligation to pay to Mother one-half of
                      their accounts.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Mother and Father were married in January of 1985 and had three children

      during their marriage, S.E., A.E., and J.E. In 2008, Mother filed her petition

      for the dissolution of the marriage. In April of 2010, the parties entered into a

      settlement agreement in the dissolution action, which the trial court adopted in


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1748 | March 4, 2019   Page 2 of 10
      its ensuing decree of dissolution. At that time, S.E. had already been

      emancipated, A.E. was seventeen years old, and J.E. was seven years old.


[4]   The settlement agreement provided in relevant part as follows:


              6. SUPPORT. [Father] shall pay to [Mother], through the office
              of the Clerk of this Court, a sum to be agreed upon or determined
              by the Court for the support and maintenance of [A.E. and J.E.]
              . . . It is agreed that child support shall be determined as if
              [Father] is paying child support for two (2) children and a
              separate calculation shall be made on the assumption that
              [Father] is paying child support for (1) child. In those weeks
              when [A.E.] is with [Father] for a full week, [Father] shall pay
              support to [Mother] on . . . the calculation made for one (1) child.
              In those weeks where [A.E.] and [J.E.] are both physically with
              [Mother,] [Father] shall pay support to [Mother] on . . . the
              calculation made for two (2) children. It is agreed that support
              may be paid directly to [Mother] by [Father] . . . , it being the
              responsibility of [Father] to keep receipts to show what support
              has been paid. . . .


                                                     ***


              20. BANK ACCOUNTS. [Father] shall pay to [Mother], within
              ninety (90) days of the date of this agreement, an amount equal
              to one[-]half of the balance existing in the savings account,
              checking account, and any other bank account as of April 28,
              2010. . . .


      Appellant’s App. Vol. 2 at 16, 21 (emphases removed).


[5]   Attached to the settlement agreement were two child-support worksheets, one

      based on support for both A.E. and J.E. and one based on support for only J.E.


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1748 | March 4, 2019   Page 3 of 10
      On both worksheets, the parties agreed that Father had a weekly income of

      $1,200 and Mother had a weekly income of $290. In its decree, the trial court

      accepted the alternating support obligations in accordance with the settlement

      agreement and the attached worksheets. In 2017, Mother filed a motion to

      show cause in which she alleged that Father had accumulated a child-support

      arrearage and had failed to pay on other obligations pursuant to the decree and

      settlement agreement. Father, in turn, moved to modify his child-support

      obligation.


[6]   The trial court held an evidentiary hearing on the competing motions, at which

      both Mother and Father testified before the court. In his testimony, Father

      stated that he had ceased paying child support for A.E. in January of 2013, after

      A.E. had turned twenty-years old, because A.E. had been emancipated as a

      matter of law. He also testified that he had paid $5,640 in child support directly

      to Mother rather than through the clerk of the trial court. He further testified

      that his current income was about half of what it was at the time of the

      settlement agreement, which testimony he supported with his tax returns, and

      he agreed with Mother’s corresponding testimony that her income was about

      double what it was at the time of the settlement agreement. And he testified

      that there were no accounts in existence on April 28, 2010, for him to split with

      Mother pursuant to paragraph 20 of the settlement agreement.


[7]   Thereafter, the trial court entered its order denying Mother’s motion to show

      cause and granting Father’s motion to modify child support. In its order, the

      trial court found as follows:

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1748 | March 4, 2019   Page 4 of 10
        6. [A.E.] was emancipated as a matter of law on July 1, 2012.


        7. Thereafter, on January 11, 2013, [Father] began to pay the
        amount specifically designated for [J.E.] only . . . .


        8. There were also child support payments made by [Father]
        directly to [Mother] in the amount of $5,640.00, as allowable by
        the Decree and Settlement Agreement.


        9. The parties’ child support order was not an in gross,
        indivisible support order due to the alternat[ing] provision, the
        designation of amounts per child, and the two separate child
        support worksheets.


        10. No child support arrearage exists, and an overpayment
        resulted.


        11. The total overpayment of $[8.742.65]1 . . . shall be reflected
        as a credit to [Father] against future child support payments.


                                                 ***


        15. There has been no evidence on which the Court can rely to
        establish the amount of the bank accounts on . . . April 28,
        2010. . . .


        16. [Father] has fully satisfied his obligation regarding payment
        of half the balance of any bank accounts to [Mother] . . . .




1
  The exact amount of Father’s overpayment is based on a subsequent trial court order in which the court
clarified this amount.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-1748 | March 4, 2019                  Page 5 of 10
      Appellant’s App. Vol. 2 at 43-45 (citations omitted). This appeal ensued.


                                       Discussion and Decision
                                               Standard of Review

[8]   Mother appeals the trial court’s modification order. The court’s modification

      order includes findings of fact and conclusions thereon following an evidentiary

      hearing before the court. We review such judgments under our clearly

      erroneous standard of review. Bogner v. Bogner, 29 N.E.3d 733, 738 (Ind.

      2015);2 see also Anderson v. Wayne Post 64, Am. Legion Corp., 4 N.E.3d 1200, 1206

      n.6 (Ind. Ct. App. 2014) (stating that “our usual review . . . when the trial court

      is in the unique position of determining the . . . facts” is for “clear error”), trans.

      denied. Under that standard, we engage in a two-tiered review: first, we

      “determine whether the evidence supports the findings” and, second, we

      determine “whether the findings support the judgment.” K.E. v. Ind. Dep’t of

      Child Servs., 39 N.E.3d 641, 646 (Ind. 2015). We consider “[o]nly the evidence

      and reasonable inferences that are favorable to the judgment.” Id.


                                     Issue One: Father’s Overpayment

[9]   Mother asserts that the trial court erred when it found that Father had overpaid

      his child support for three reasons. First, Mother asserts that Indiana Code




      2
        In her brief on appeal, Mother asserts that our review of the modification order is for an abuse of
      discretion. But, as our Supreme Court reiterated in Bogner: “This Court has clarified that clear error, and not
      abuse of discretion, is the proper standard of review for support modifications.” 29 N.E.3d at 738 n.2 (citing
      McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1251-52 (Ind. 1994)).

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1748 | March 4, 2019                     Page 6 of 10
       Section 31-16-6-6 (2018), which declares that “[t]he duty to support a child

       under this chapter . . . ceases when the child becomes nineteen (19) years of

       age,” does not apply to A.E. because that statutory language became effective

       on July 1, 2012, after the entry of the decree of dissolution. At the time the

       court entered the decree of dissolution, the age of emancipation was twenty-one

       years old. See I.C. § 31-16-6-6(a) (2010).


[10]   This Court has repeatedly rejected arguments such as Mother’s. In Turner v.

       Turner, for example, we held that the trial court erred when it “determined that

       the language in the dissolution decree—which provided that [the parent] was

       obligated to pay child support until [the child] reached the age of twenty-one—

       trumped the amended statute . . . .” 983 N.E.2d 643, 648 (Ind. Ct. App. 2013).

       And we held that “[t]he trial court had no discretion to go outside the law set

       out in the termination of child support statute and to extend [the parent’s] duty

       to pay child support beyond what is required by law.” Id.; see also Baker v. Grout,

       ___ N.E.3d ___, No. 18A-DR-1572, 2018 WL 6441628, at *2-3 (Ind. Ct. App.

       Dec. 10, 2018) (holding that, “[n]ot only has [the parent] shown prima facie

       error, we also conclude that she has shown that the trial court abused its

       discretion when it denied her petition to terminate child support” on facts

       similar to those in Turner). For the same reasons, we reject Mother’s argument

       here.


[11]   Second, Mother argues that the trial court erred in calculating Father’s

       overpayment of child support because the court “continued to give credit to

       Father for overnights that he admitted he had not exercised.” Appellant’s Br. at

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1748 | March 4, 2019   Page 7 of 10
       12. Mother’s argument here appears to be that the court erred in not reducing

       the overpayment for times Father would have had custody of J.E., but nothing

       in the decree of dissolution allowed Father to reduce his weekly child-support

       payment for J.E. based on Father’s exercise of parenting time. And the

       modification order is based on evidence that shows Father’s actual payments to

       Mother and his weekly support for J.E. in accordance with the settlement

       agreement. Thus, we reject this argument.


[12]   Third, Mother asserts that the trial court erred both when it calculated Father’s

       current income and when it did not find that Father owes a child-support

       arrearage. Mother’s argument here is contrary to our standard of review. The

       trial court’s findings on both questions are based on the evidence before it,

       namely, Father’s testimony and his tax returns, and we will not reweigh the

       evidence on appeal. We hold that the trial court did not clearly err when it

       found that Father had an overpayment of child support.


                                        Issue Two: In Gross Order

[13]   Mother next argues that the trial court erred when it concluded that the child-

       support obligation established in the decree of dissolution was not an in gross

       order. As we have explained:


               An indivisible, in gross order refers to a situation where a parent
               is ordered to pay a specified sum of undivided support for more
               than one child.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1748 | March 4, 2019   Page 8 of 10
               Under this type of order, the parent must pay the total support
               amount until the support payments are modified by court order
               or all of the children are emancipated . . . .


       Sterrett v. Hartzell, 640 N.E.2d 74, 77 (Ind. Ct. App. 1994) (citations omitted).


[14]   Mother’s five-page long argument on this issue is not well taken. The decree of

       dissolution was patently not an in gross order for the payment of child support.

       Rather, as the trial court found, the original child-support order was explicitly

       divided between payments for both A.E. and J.E. and payments for only J.E.

       Accordingly, we affirm the trial court’s judgment on this issue.


                         Issue Three: Father’s Payments Directly to Mother

[15]   Next, Mother asserts that the trial court erred when it credited $5,640 in child-

       support payments to Father. According to Mother, Father’s child-support

       payments were made to the clerk of the trial court, and Father’s additional

       payments directly to her were for other expenses.


[16]   Again, Mother’s argument is not well taken. Although the settlement

       agreement provided that Father could make child-support payments to the

       clerk, it also provided that he could make them directly to Mother. And he

       testified that he did so in the amount of $5,640, which testimony the trial court

       credited over Mother’s testimony and evidence. We cannot say that the trial

       court erred on this issue.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1748 | March 4, 2019   Page 9 of 10
                                  Issue Four: Father’s Current Income

[17]   Mother next asserts that the trial court erred when it found that Father’s current

       income is less now than it was at the time of the decree of dissolution. Insofar

       as Mother’s argument here is different than her argument under Issue One, we

       note that Mother’s argument here is nothing more than a request for this Court

       to reweigh the evidence that was before the trial court, which we cannot do.

       The trial court’s finding is supported by the evidence before it, and we affirm on

       this issue.


                                 Issue Five: Division of Bank Accounts

[18]   Finally, Mother argues that the trial court erred when it found that Father had

       fully satisfied his obligation to pay to Mother one-half of the parties’ accounts

       within ninety days of the entry into the settlement agreement. But the trial

       court explicitly stated that it did not find Mother’s evidence on this question

       reliable and, instead, the trial court relied on Father’s testimony that he had

       satisfied his obligations. We are in no position to reconsider or reweigh the

       evidence as Mother argues. We affirm the trial court on this and all other

       issues.


[19]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1748 | March 4, 2019   Page 10 of 10
