Freese v. Burns, 29A04-0112-CV-555.

• Decision Date: 17 July 2002
• Docket Number: No. 29A04-0112-CV-555.,29A04-0112-CV-555.
• Citation: 771 N.E.2d 697
• Parties: In re the Marriage of Debora (Burns) FREESE, Appellant, v. Bruce K. BURNS, Appellee.
• Court: Indiana Appellate Court

771 N.E.2d 697

In re the Marriage of Debora (Burns) FREESE, Appellant, v. Bruce K. BURNS, Appellee.

No. 29A04-0112-CV-555.

Court of Appeals of Indiana.

July 17, 2002.

Lowell A. Shroyer, Beech Grove, Indiana, Attorney for Appellant.

George A. Lohmeier, Allen Wellman McNew, Greenfield, Indiana, Attorney for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Respondent Debora Freese ("Debora") appeals the denial of her petition to modify the child support order entered contemporaneously with the dissolution of her marriage to Appellee-Petitioner Bruce Burns ("Bruce"). We reverse and remand.

Issues

Debora presents six issues for review, which we consolidate and restate as:

I. Whether the trial court erred in excluding Debora's proffered Exhibit B; and,

II. Whether the trial court's findings of fact and conclusions of law are clearly erroneous.

Facts and Procedural History

Bruce and Debora were divorced on January 31, 1994. Pursuant to the parties' agreement, the dissolution court ordered that Bruce and Debora share joint physical custody of their two children. Each parent was to have the children in his or her care an equal amount of time, and neither was ordered to pay child support payments. However, Bruce agreed "to be solely responsible for all the expenses of the children, including the day care." On November 17, 2000, Debora filed a petition for modification of child support. A hearing was held on November 7, 2001.

On November 21, 2001, pursuant to Bruce's motion, the trial court entered Findings of Fact and Conclusions of Law. Debora's petition for modification was denied; she now appeals.

Discussion and Decision

I. Exclusion of Debora's Exhibit

Initially, Debora claims error in the exclusion of her proffered Exhibit B, a United States Bureau of Labor Statistics Consumer Price Index publication, which purportedly disclosed average consumer expenditures. The trial court excluded the proffered exhibit on grounds of relevance.

Indiana Evidence Rule 402 provides in pertinent part: "[e]vidence which is not relevant is not admissible." Additionally, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence. Evid. R. 403. A trial court's decision to admit or exclude evidence is within its discretion and will be disturbed on appeal only when the admission or exclusion is clearly erroneous and against the logic and effect of the facts and circumstances before the court. Hite v. Haase, 729 N.E.2d 170, 178 (Ind.Ct.App. 2000).

Debora testified that she compared her household expenses to those reflected in Exhibit B and concluded "her money was going about the same place as that of everybody else in America." (Tr. 22.) However, Exhibit B is not directly probative of either Debora's or Bruce's expenses. Moreover, child support awards in Indiana are based upon the Indiana Child Support Guidelines ("Guidelines") rather than a detailed analysis of a particular household's expenses. Ind. Child Support Guideline 2.¹ Therefore, the trial court's determination that Exhibit B was not relevant to an issue in the case is not against the logic and effect of the facts and circumstances before the court. We find no abuse of discretion.

II. Findings of Fact and Conclusions of Law

A. Standard of Review

Indiana Code section 31-16-8-1 provides that an order with respect to child support may be modified: (1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or (2) upon a showing that a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines, and the order requested to be modified or revoked was issued at least twelve months before the petition requesting modification was filed.

Here, the trial court entered Findings of Fact and Conclusions of Law. Thus, we apply a two-tiered standard of review: first, we determine whether the evidence supports the findings and second, whether the findings support the judgment. Carmichael v. Siegel, 754 N.E.2d 619, 625 (Ind.Ct.App.2001). We disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. Id. We do not reweigh the evidence, but consider only the evidence favorable to the trial court's judgment. Id. Challengers must establish that the trial court's findings are clearly erroneous. Id. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. Id. However, we do not defer to conclusions of law, and a judgment is clearly erroneous if it relies on an incorrect legal standard. Id.

B. Analysis

At hearing and on appeal, the parties have not disputed the relevant facts surrounding the petition for modification, but rather have disputed whether those facts constitute a substantial and continuing change in circumstances.

Evidence adduced at the hearing discloses that the parties' children were four and one at the time of the marital dissolution. Due to the disparity of the parties' incomes, Bruce agreed to pay the "expenses" of the children. At that time, day care expenses were a significant expense payable by Bruce. However, the parties were unable to agree on which other "expenses" were contemplated by the dissolution agreement. Debora sought contributions from Bruce for a portion of commingled household expenses such as groceries, housing, transportation and utilities. Bruce declined to reimburse Debora for those indirect expenses, interpreting "expenses" as "direct expenses." (Tr. 85.) Bruce paid for school lunches, clothing and extracurricular activities. In 1999, the amount Bruce paid for the children's expenses amounted to $5,815.63.

At the time of the modification hearing, the parties' children were twelve and nine. Debora was no longer employed outside the home; thus, no childcare expense was being incurred. Both Bruce and Debora had remarried and each had a subsequently born child. Bruce, a certified public accountant, earned $237,000.00 in the year preceding the modification hearing. Debora lacked current wage income, but agreed that income should be imputed to her based upon her last employment. The trial court found no change in circumstances warranting a child support modification.

Debora challenges the Conclusions of Law providing in pertinent part (1) that Indiana Code section 31-16-8-1 is inapplicable when a parent has agreed to pay more than Guideline support, (2) that a child support order is not required in favor of a parent who had ample resources, (3) that neither Debora's subsequently born child or change in employment constitutes a relevant change in circumstances, and (4) that modification is not warranted.

The mere passage of time, without more, does not effect a statutory change in circumstances necessitating modification. Here, however, the evidence adduced at the modification hearing points solely to the existence of a substantial and continuing change in circumstances, including a five-fold increase in Bruce's income, the termination of Debora's paid employment, the addition of two dependents, the passage of seven years and the termination of daycare expenses. Nevertheless, the trial court refused to modify the obsolete child support order, which contemplated no child support payments by either parent.

The trial court's decision stems from the erroneous premises that Bruce had agreed to pay an amount in excess of...