      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                            Sep 25 2015, 9:23 am
      regarded as precedent or cited 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
      Zachary J. Stock
      Zachary J. Stock, Attorney at Law, P.C.
      Carmel, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      M.L.,                                                    September 25, 2015
      Appellant,                                               Court of Appeals Case No.
                                                               33A01-1505-DR-318
              v.                                               Appeal from the Henry Circuit
                                                               Court
      M.F. and M.Fu.,                                          The Honorable Mary G. Willis,
      Appellees                                                Judge
                                                               Trial Court Cause No.
                                                               33C01-0807-DR-59



      Bailey, Judge.



                                          Case Summary
[1]   M.L. (“Grandmother”) has custody of the three children of divorced parents

      M.F. (“Mother”) and M.Fu. (“Father”). Grandmother appeals a child support
      Court of Appeals of Indiana | Memorandum Decision 33A01-1505-DR-318 | September 25, 2015   Page 1 of 5
      order entered upon her petition for child support modification. She presents the

      sole issue of whether the trial court abused its discretion in determining Father’s

      gross income available for child support. We reverse and remand.



                            Facts and Procedural History
[2]   In 2012, Grandmother intervened in a custody dispute between Mother and

      Father and was awarded physical custody of two of the parents’ children. The

      third child was placed in the custody of Father. Father was ordered to pay

      Grandmother $25.00 weekly as child support.


[3]   In November of 2014, Grandmother was awarded the physical custody of the

      third child. On December 10, 2014, Grandmother filed a petition seeking to

      modify Father’s child support obligation.


[4]   On March 18, 2015, Grandmother and Father appeared at a hearing.

      Grandmother testified that she had entered into a child support agreement with

      Mother, whose gross income was approximately $500.00 per week. She offered

      a child support worksheet indicating that Father’s weekly gross income was

      $1,391.00.


[5]   Father introduced into evidence a letter from his employer, Carter Express,

      stating that Father had changed from a full-time employee to a part-time

      employee, effective February 18, 2015. Father, who holds a commercial

      driver’s license, testified that he “did not dispute” the fact that his average

      earnings had been $1,391.00 weekly. (Tr. at 6.) He explained that he had

      Court of Appeals of Indiana | Memorandum Decision 33A01-1505-DR-318 | September 25, 2015   Page 2 of 5
      recently elected to become a “casual” employee, so that he could go to family

      counseling and seek to regain custody of his children. (Tr. at 7.) He also

      protested that he “can’t afford the $179.00 every week that they are asking for”

      and didn’t know “if there is anything that I could do to lower that.” (Tr. at 9.)

      Father subsequently testified that he had the potential of making fifteen to

      eighteen hundred dollars per week.


[6]   The trial court completed a child support worksheet assigning $500.00 weekly

      gross income to Father and $500.00 weekly gross income to Mother. Father

      was ordered to pay $143.00 weekly as child support for his three children.

      Grandmother appeals.



                                 Discussion and Decision
[7]   Grandmother argues that the trial court erred in calculating Father’s weekly

      gross income. Specifically, she contends that the order is inconsistent with

      evidence that Father had been earning $1,391.00 weekly prior to voluntary

      underemployment and that he had earning potential of up to $1,800.00 per

      week.


[8]   We initially observe that Father has failed to file an appellee’s brief. Under

      these circumstances, we do not undertake to develop an argument on his behalf,

      and we may reverse upon Grandmother’s prima facie showing of reversible

      error. Carter v. Grace Whitney Props., 939 N.E.2d 630, 633 (Ind. Ct. App. 2010).




      Court of Appeals of Indiana | Memorandum Decision 33A01-1505-DR-318 | September 25, 2015   Page 3 of 5
       Prima facie error is error “at first sight, on first appearance, or on the face of it.”

       Montgomery v. Faust, 910 N.E.2d 234, 237 (Ind. Ct. App. 2009).


[9]    Child support calculations are made utilizing the income shares model set forth

       in the Indiana Child Support Guidelines. Sandlin v. Sandlin, 972 N.E.2d 371,

       374 (Ind. Ct. App. 2012). Child support is based upon the premise that children

       should receive the same portion of parental income that they would have

       received if the parents and children were living in an intact household. Nowels

       v. Nowels, 836 N.E.2d 481, 489 (Ind. Ct. App. 2005). A trial court’s decision

       regarding child support will be upheld unless the trial court has abused its

       discretion. Morgal-Henrich v. Henrich, 970 N.E.2d 207, 212 (Ind. Ct. App. 2012).

       An abuse of discretion occurs when the decision is clearly against the logic and

       the effect of the facts and circumstances before the court or if the court has

       misinterpreted the law. Id.


[10]   The Indiana Child Support Guidelines define “weekly gross income” to include

       actual weekly gross income of the parent if employed to full capacity, potential

       income if unemployed or underemployed, and imputed income based upon “in-

       kind” benefits. For example, a trial court may impute income to a parent that is

       voluntarily unemployed or underemployed considering the parent’s work

       history, occupational qualifications, prevailing job opportunities, and earnings

       levels in the community. Meredith v. Meredith, 854 N.E.2d 942, 947 (Ind. Ct.

       App. 2006).


[11]   Here, the trial court’s order provided in relevant part:


       Court of Appeals of Indiana | Memorandum Decision 33A01-1505-DR-318 | September 25, 2015   Page 4 of 5
               [Father] recently worked for Carter Express as a driver and
               earned approximately $1,350 per week. That [Father] testified
               that he was capable of earning up to $1,800 per week.


               That in mid February of 2015, [Father] voluntarily went on part
               time status with Carter Express and his income became
               significantly reduced.


               That the Court finds that [Father’s] potential income is $500 per
               week and adopts the Court’s support calculation which is
               attached hereto[.]


       (App. at 18.)


[12]   In light of the trial court’s factual findings, Grandmother has established prima

       facie error. We reverse and remand for calculation of Father’s child support

       obligation consistent with the Indiana Child Support Guidelines.


[13]   Reversed and remanded.


        Baker, J., and Mathias, J., concur.




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