Glover v. Torrence

• Decision Date: 07 February 2000
• Docket Number: No. 49A02-9903-CV-205.,49A02-9903-CV-205.
• Citation: 723 N.E.2d 924
• Parties: In re The Marriage of William T. GLOVER, Appellant-Respondent, v. Tammy TORRENCE, Appellee-Petitioner.
• Court: Indiana Appellate Court

723 N.E.2d 924

In re The Marriage of William T. GLOVER, Appellant-Respondent, v. Tammy TORRENCE, Appellee-Petitioner.

No. 49A02-9903-CV-205.

Court of Appeals of Indiana.

February 7, 2000.

David M. Henn, Stowers, Weddle & Henn, Indianapolis, Indiana, for Appellant.

Michael Cheerva, Phelps & Fara, Indianapolis, Indiana, for Appellee.

OPINION

BAKER, Judge

Appellant-Respondent William T. Glover ("Father") appeals the modification/increase of his child support obligation after a trial before the bench upon the petition of Appellee-Petitioner Tammy Torrence ("Mother"). Father also appeals the trial court's grant of relief from judgment with respect to two earlier child support orders established in 1991 and 1994 respectively on the basis that Father falsely verified (understated) his income during those proceedings. Father raises eight issues which we consolidate and restate as follows: (1) Whether the trial court erred in awarding Mother a child support arrearage based on Father's false verification of his income during modification proceedings held in 1994; (2) Whether the trial court erred in awarding Mother a child support arrearage based on Father's false verification of his income during modification proceedings held in 1991; (3) Whether the trial court erred in setting the amount of Father's present child support obligation; (4) Whether the trial court abused its discretion by allocating the dependency income tax exemption to Mother; and, (5) Whether the trial court erred by ordering Father to pay Mother's reasonable attorney's fees in the amount of $6,400.00.

FACTS

The evidence most favorable to the trial court's judgment reveals that Father and Mother married in 1982, their child was born in 1983, and the parties were divorced in 1984. Mother was awarded custody and Father was ordered to pay child support in the amount of $25.00 per week.

Thereafter, in 1991, Mother filed a petition to modify (increase) Father's child support obligation. During these proceedings, Father filed a "Verified Financial Declaration" with the court in which he affirmed under penalty of perjury that he earned $400.00 per week. R. at 43-47. The case was settled by the parties' agreement that Father's child support obligation be increased to $89.00 per week. R. at 54.

On July 12, 1993, Father filed a verified petition (under penalty of perjury) to modify his child support obligation, which read in pertinent part as follows:

On March 15, 1991, this Court entered a child support order in the amount of eighty-nine dollars ($89.00) per week. This child support was based, in part, upon [Father's] gross earnings of four hundred dollars ($400.00). After the entry of this child support order, [Father] lost his job and took employment . . . [that paid] two hundred and sixty dollars ($260.00) per week.

R. at 103-04. Father also alleged in his petition that his 1994 earnings would be lower because he was to be incarcerated for a felony conviction. R. at 103, 321. Father spent three months in jail. Father's petition to modify was submitted to mediation during which the parties reached an agreement that provided, among other things, that Father's child support obligation would be lowered to $57.00 per week. R. at 121. In conjunction with the 1994 modification agreement, Father filed a verified child support worksheet, signed on July 21, 1994, in which he affirmed, again under penalties of perjury, that he earned $366.00 per week. R. at 119, 259. On August 3, 1994, the trial court approved the parties' agreement. R. at 120-22.

In 1998, Mother initiated the present proceedings by filing a pleading styled "MOTION TO SET ASIDE AGREEMENT OF AUGUST 3,1994 FOR FRAUD." R. at 166. Mother requested relief under Ind. Trial Rule 60(B)(3) alleging that Father had committed a fraud upon the court by perjuriously misrepresenting that he earned only $366.00 per week on the child support worksheet. Mother submitted Father's 1994 income tax returns which revealed that Father earned nearly $500.00 per week that year which indicated that he should have been paying $15.00 more per week in child support under the guidelines. R. at 167, 170. Mother requested that the 1994 modification proceedings be reopened and that Father be found in arrears in the amount of child support that Father would have owed had he accurately represented his earnings. Mother also requested that Father's current child support obligation be modified/increased.

The matter proceeded to trial on October 14 and 18, 1998. During opening statements, Mother's attorney stated:

And we are going to be asking the Court to set aside the `94 order for fraud . . . . and there is evidence of fraud in `91, also. . . as to what [Father's] income and his ability to pay. . . .

R. at 239. Father objected to evidence pertaining to the allegedly perjurious statements made during the 1991 proceedings on the basis of relevance. R. at 281. Father's counsel argued:

This was back in `91, and the agreement that we're talking about setting aside is `94.

R. at 281. Mother's attorney argued that the evidence was relevant to establish that Father "committed the same or similar fraud in the past." R. at 281. The trial court overruled Father's objection. Later, Father raised another objection pertaining to evidence regarding the period before 1994. R. at 348. Mother's attorney responded:

Your Honor, our purpose for offering it is, we do have a petition on file for the fraud, and it was related to `94. There has been evidence offered as to `91, and this is a loan application that is signed under penalty of perjury and imprisonment. So I think as far as the admissibility. . . this Court has plenty of evidence in front of it as to what he swore to somebody else besides this Court he was making, at the same time he was swearing to this Court that he was making a substantially less sum, and the child support was calculated based on that.

R. at 348. The trial court again overruled Father's objection.

Evidence was submitted which indicated that Father had actually earned approximately $1,030.00 per week in 1991. R. at 289-90. Records from Father's employer revealed that he had earned approximately $525.55 per week in 1994. Mother testified that Father did not exercise regular visitation with the child in 1994.¹ R. at 323. Moreover, Father openly admitted that he had provided false information to the court in the past. R. at 384, 423.

Father testified that he has remarried and has adopted his wife's child. Father filed a Verified Financial Declaration in which he swore under penalty of perjury that he was currently earning $400.00 per week. R. at 175-77. However, in the same financial declaration, Father declared expenses exceeding $1,000.00 per week. R. at 175-77. In total, Father's evidence indicated that his expenses totaled $55,400.00 per year or $1,065.00 per week. R. at 204. According to Father's income tax return, Father's wife does not work outside the home. R. at 358, 414. However, Father's wife receives $9,823.00 in social security death benefits as the result of her former husband's death on behalf of the child Father adopted. R. at 200, 413.

Mother does not work outside the home. Mother remarried and two children were born to that marriage. However, Mother's husband died. As a result of her husband's death, Mother receives social security death benefits in the amount of approximately $25,668.00 per year on her own behalf and on the behalf of all three children, including Father's child. R. at 308, 312. On the child support worksheet, Mother listed her income as $331.62 a week, representing the amount of social security benefits she received on her own behalf and on the behalf of Father's child. R. at 308, 436. Although Mother has not had taxable income in the recent past, she plans to marry her fiancé and requested that the trial court allocate the income tax exemption for the child to her in order to reduce the income tax on the joint income tax returns she would be filing with her husband. Mother's fiancé carries health insurance through his employer on Father's child at the cost of $24.00 per month. R. at 293-95.

In its findings and judgment, the trial court determined that, had Father accurately disclosed his income, he would have been required to pay additional child support in the amounts of (1) $7,605.00 (representing the period between 1991 and 1994), and (2) $6,398.60 (representing the period between 1994 to 1998). R. at 206-07. The trial court granted Mother relief from both the 1991 and 1994 modification proceedings and ordered Father to pay Mother the sum of those amounts, $14,003.60. R. at 207.

The trial court rejected Father's evidence regarding his income and found that he earned $55,400.00 per year or $1,065.00 per week based upon his reported expenses. R. at 204, 211. In reaching this conclusion, the trial court expressly found that (1) Father had never been truthful about his income and ability to support himself, (2) the evidence showed that Father's household expenses totaled $55,440.00 per year, and (3) Father's wife did not work outside the home. R. at 204. The trial court determined Mother's income to be $331.62 per week based on the amount of social security benefits she receives on her own behalf and on the behalf of Father's child. R. at 211. Applying the Indiana Child Support Guidelines, the trial court ordered that Father's current child support obligation be increased to $146.00 per week. R. at 204, 211. Further, the trial court entered the following finding with respect to the income tax exemption for the child:

The amendments to the Indiana Child Support Rules and Guidelines now specifically provide commentary for when a Court should order a release of the income tax exemptions. See, Support Guideline 6. Additional commentary. Considering the factors mentioned by said commentary, the Court finds that [Mother's] household should benefit from having [the child] as

...