Hamiter v. Torrence

• Decision Date: 27 October 1999
• Docket Number: No. 49A05-9812-JV-605.,49A05-9812-JV-605.
• Citation: 717 N.E.2d 1249
• Parties: Ingram M. HAMITER, Appellant-Petitioner, v. Brian K. TORRENCE, Appellee-Respondent.
• Court: Indiana Appellate Court

717 N.E.2d 1249

Ingram M. HAMITER, Appellant-Petitioner, v. Brian K. TORRENCE, Appellee-Respondent.

No. 49A05-9812-JV-605.

Court of Appeals of Indiana.

October 27, 1999.

Jeffrey A. Modisett, Attorney General of Indiana, Kathryn Janeway, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellant.

OPINION

ROBB, Judge

Ingram M. Hamiter ("Mother") appeals the trial court's modification of Brian Torrence's ("Father") child support obligation for their child. We reverse and remand, holding that the trial court erred to the extent it reduced the presumptive child support amount in an effort to exclude Father's overtime pay as a component of his child support obligation and in deviating from the presumptive child support amount due to a "windfall."

Issues

Mother raises two issues for our review, which we restate as follows:

1. Whether the trial court properly determined the amount of Father's gross income for purposes of computing his presumptive child support obligation; and

2. Whether the trial court properly reduced Father's presumptive child support obligation because of a "windfall."

Facts and Procedural History

Mother and Father are parents of W.H., a child born out-of-wedlock on November 27, 1987. In early 1988, Mother and Father entered into a consent decree that established the paternity of W.H. and ordered Father to pay child support in the amount of $25 per week. Some time later, the parties agreed that Father's child support obligation should be raised to $75 per week.

In July 1998, Mother filed a petition to modify support. A hearing was held on this petition; however, the hearing was not recorded. A handwritten entry on the Minutes of the Court dated September 8, 1998, apparently memorialized the judgment of the court following this hearing:

Income [withholding] in effect, [Father] in compliance. Father earning at a rate of Twenty-two Dollars per hour. Mother working parttime [sic]. Guideline support indicates Two Hundred Eighteen Dollars per week. Court orders support at One Hundred Fifty Dollars per week via Income [withholding] for the reason that Guideline support constitutes a windfall, is determined by or in part by reliance on overtime, [without] a showing of the continuity thereof. Prosecutor's objection made [and] noted....

R. 10.

After commencing this appeal, Mother moved to settle the record pursuant to Indiana Appellate Rule 7.2(A)(3)(c), which provides for a statement of the evidence to be prepared by a party when the proceedings are not recorded or when a transcript is not available. Accordingly, the trial court signed an order that the following statement of evidence was to become a part of the trial record:

1. [Father] agreed that the average weekly income amount shown on the Child Support Worksheet was averaged over the preceeding [sic] year and included consistent overtime pay that would continue to be consistently available in the future.

2. [Father] did not request or seek a deviation from application of the Child Support Guidelines, but the State offered and [Father] accepted credit for visitation.

Supp. R. 1.¹ Mother appeals the trial court's reduction of Father's child support obligation from the presumptive amount.

Discussion and Decision

I. Standard of Review

We begin by noting that Father has failed to file an appellee's brief. When the appellee fails to submit a brief, we need not undertake the appellee's burden of controverting arguments advanced for reversal. Santana v. Santana, 708 N.E.2d 886, 887 (Ind.Ct.App.1999). Rather, we may reverse the trial court if the appellant makes a prima facie case of error. Id. "Prima facie" is defined as "at first sight, on first appearance, or on the face of it." Johnson County Rural Elec. v. Burnell, 484 N.E.2d 989, 991 (Ind.Ct.App.1985).

In reviewing orders modifying child support, we consider only the evidence and reasonable inferences favorable to the judgment. Kinsey v. Kinsey, 640 N.E.2d 42, 43-44 (Ind.1994). The modification will not be set aside unless it is clearly erroneous, giving due regard to the trial court's opportunity to judge the credibility of the witnesses. Id. at 44. Reversal of a child support order which deviates from the presumptive Guideline amount is appropriate only where the trial court's determination is clearly against the logic and effect of the facts and circumstances before the court. Id. at 43.

II. Father's Overtime as a Component of Weekly Gross Income

In determining the presumptive child support amount, the Child Support Guidelines begin with the parties' weekly gross income figures. The Guidelines define "weekly gross income" to include "income from any source...." Child Supp. G. 3(A). However, the commentary to Guideline 3(A) states that although overtime is includable in a parent's weekly gross income figure, it is very fact-sensitive and thus, when a court determines that it is not appropriate to include irregular income in the weekly gross income figure used to determine the child support amount, it should express its reasons. See Carter by Carter v. Morrow, 563 N.E.2d 183, 186 (Ind.Ct.App.1990) (stating that, in making the determination that father's overtime pay should not be included in his weekly gross income figure because of future uncertainty, the trial judge complied exactly with the requirement of Child Supp. R. 3 that trial courts articulate the reasons for their decision).

Although couched in the "Minutes of the Court" entry as a deviation from the presumptive Guideline child support amount, exclusion of Father's overtime actually goes to the issue of determining his weekly gross income. If the continuity of Father's overtime was uncertain, as stated in the "Minutes of the Court" entry, then it should not have been included in his weekly gross income figure. Thus, exclusion of overtime is not a deviation from the presumptive Guideline child support amount because the overtime is a component of the calculation in arriving at support; not a variance from an amount already determined.

The Guidelines provide for a child support worksheet to be completed and filed with the trial court, signed by the parties and supported by documentation. Child Supp. G. 3(B). If the parties cannot agree on the weekly gross income figures to be included on the worksheet, then each party may submit their own worksheet and documentation, from which the trial court can determine the parties' respective weekly gross incomes and compute the appropriate child support amount. Commentary to Child Supp. G. 3(B). Each party bears the burden of justifying the incomes used in his or her own worksheet.

In this case, a single child support obligation worksheet was signed and filed jointly by the parties. R. 64. Father's weekly gross income figure was shown to be $1,387 on average. Father's signature on the worksheet "affirm[s] under penalties for perjury that the foregoing representations are true." R. 64. This figure included overtime pay which Father agreed would continue to be consistently available in the future. Supp. R. 1. Thus, there was evidence before the trial court that Father earned consistent overtime pay which should be included in the weekly gross income figure used to determine his child support obligation. There was no conflicting evidence with regard to the overtime. See Dye v. Young, 655 N.E.2d 549, 550 (Ind.Ct.App.1995) (stating that because father failed to file his own child support worksheet or to provide the court with a figure he claimed to be his weekly gross income, the trial court was well within its discretion to adopt the figures supplied by mother in determining child support). Thus, the trial court's determination that Father's overtime was not shown to be consistent and should be excluded is clearly erroneous. Mother met her burden of showing that Father's overtime pay should be included in the calculation of child support.

III. Presumptive Child Support as a "Windfall"

Indiana Child Support Rule 2 states that in a proceeding for child support, "there shall be a rebuttable presumption that the amount of the award which would result from the application of the [Guidelines] is the correct amount of child support to be awarded." Child support awards under the Guidelines are designed to provide the children as closely as possible with the same standard of living they would have enjoyed had the marriage not been dissolved. Bussert v. Bussert, 677 N.E.2d 68, 70 (Ind.Ct.App.1997), trans. denied. The "income shares model" adopted by the Indiana Child Support Guidelines reflects this principle. Commentary to Child Supp. Guideline 1. The income shares model set forth in the Guidelines apportions the cost of children between the parents in proportion to each parent's weekly available income. Jendreas v. Jendreas, 664 N.E.2d 367, 372 (Ind.Ct.App. 1996), trans. denied.

If the trial court determines that ordering the Guideline amount of child support would be unjust or inappropriate, the court must set forth a written finding stating the factual basis for the deviation. Commentary to Guideline 3(F); Skalon v. Skalon-Gayer, 695 N.E.2d 953, 955 (Ind.Ct.App.1997). In this case, the trial court merely stated that ordering child support in the Guideline amount would constitute a "windfall." However, neither the evidence nor the judgment shed light on the exact nature of the alleged windfall.² As previously noted, the Guidelines attempt to provide children with the same portion of parental income after a dissolution that they would have enjoyed had the family remained intact. In re the Marriage of Lang, 668 N.E.2d 285, 289 (Ind.Ct.App.1996). The right to support lies exclusively with the child, and a parent merely holds child support payments in trust...