In re Paternity of G.R.B.

• Decision Date: 10 June 2005
• Docket Number: No. 32A05-0412-JV-649.,32A05-0412-JV-649.
• Citation: 829 N.E.2d 114
• Parties: In re: The Paternity of G.R.G., Robert A. Gregory II, Appellant-Respondent. v. Denise K. Manning, Appellee-Petitioner.
• Court: Indiana Supreme Court

829 N.E.2d 114

In re: The Paternity of G.R.G.,

Robert A. Gregory II, Appellant-Respondent. v. Denise K. Manning, Appellee-Petitioner.

No. 32A05-0412-JV-649.

Court of Appeals of Indiana.

June 10, 2005.

COPYRIGHT MATERIAL OMITTED

Denise F. Hayden, Indianapolis, for Appellant.

William O. Harrington, Scott C. Quick, William O. Harrington, P.C., Danville, for Appellee.

OPINION

MAY, Judge.

Robert A. Gregory ("Father") appeals from the trial court's order in the paternity action filed by Denise K. Manning ("Mother"). Father raises six issues, which we restate as:

1. Whether the trial court properly determined Father's gross income in computing his child support obligation;

2. Whether the trial court erred in finding Father has a child support arrearage;

3. Whether the trial court erred in ordering Mother and Father communicate only in writing absent an emergency;

4. Whether the trial court erred in ordering that Father may not obtain school and medical records for G.R.G. directly from the school and medical provider;

5. Whether the trial court erred in entering the parenting time order; and

6. Whether the trial court's order that Mother and Father are forever restrained from discussing their disputes with G.R.G. amounts to an unconstitutional prior restraint on Father's free speech.

We affirm.

FACTS¹ AND PROCEDURAL HISTORY

Mother and Father are parents of G.R.G., a child born out-of-wedlock on September 9, 1995. Paternity was established on September 15, 1999. Mother has both legal and physical custody of G.R.G. and Father has parenting time.

On May 14, 2004, Mother filed a motion to modify the paternity order as to Father's parenting time and child support. Pursuant to Mother's motion, the trial court appointed a guardian ad litem who issued a report and recommendations.

DISCUSSION AND DECISION

The trial court entered findings and conclusions. Thus, we apply a two-tiered standard of review: we determine first whether the evidence supports the findings and, second, whether the findings support the judgment. Turner v. Turner, 785 N.E.2d 259, 263 (Ind.Ct.App.2003), trans. denied. 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 and we consider only the evidence favorable to the trial court's judgment. Id. A challenger, here Father, must establish 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.

1. Weekly Gross Income

The trial court's calculation of Father's weekly gross income for child support purposes was not clearly erroneous. Our supreme court has placed a strong emphasis on trial court discretion in determining child support obligations and has acknowledged the principle that child support modifications will not be set aside unless they are clearly erroneous. Lea v. Lea, 691 N.E.2d 1214, 1217 (Ind.1998).

The court ordered Father to pay $133.80 per week. Father asserts the trial court erred in calculating the support obligation because it "adopted a figure calculated by the Mother which was an average of [Father's] 2002, 2003, 2004 year-to-date incomes." (Appellant's Br. at 10.) Father maintains the ending date the trial court used in averaging his 2004 income figure was August 31, 2004. He asserts the court's 2004 income figure is inaccurate because from January through August of 2004² he worked a large number of mandatory overtime hours. Father testified he would no longer receive overtime hours. Therefore, he maintains, "by using the averaged weekly income figure, [his] child support obligation becomes inflated and onerous." (Id.)

The Indiana Child Support Guidelines aid in the determination of the amount of child support that should be awarded and provide a measure for calculating each parent's share of the child support. Lea, 691 N.E.2d at 1217. "There is a rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded." Id.

When fashioning a child support order, the trial court's first task is to determine the weekly gross income of each parent. Scott v. Scott, 668 N.E.2d 691, 695-696 (Ind.Ct.App.1996). "Weekly gross income" is broadly defined to include not only actual income from employment but also potential income and imputed income from "in-kind" benefits. Glover v. Torrence, 723 N.E.2d 924, 936 (Ind.Ct.App.2000). Indiana Child Support Guideline 3(A) provides, in pertinent part:

Weekly gross income of each parent includes income from any source, ... and includes, but is not limited to, income from salaries, wages, commissions, bonuses, overtime, partnership distributions, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workmen's compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and alimony or maintenance received from other marriages.

While the Guidelines advocate a total income approach to calculating weekly gross income, they recognize determining income is fact-sensitive when irregular income, such as bonuses, overtime, and commissions, is involved. In re A.J.R., 702 N.E.2d 355, 359 (Ind.Ct.App.1998). The commentary to Guideline 3(A) provides:

There are numerous forms of income that are irregular or nonguaranteed, which cause difficulty in accurately determining the gross income of a party. Overtime, commissions, bonuses, periodic partnership distributions, voluntary extra work and extra hours worked by a professional are all illustrations, but far from an all-inclusive list, of such items. Each is includable in the total income approach taken by the Guidelines, but each is also very fact-sensitive.

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 its own worksheet and documentation, from which the trial court can determine the parties' respective weekly gross incomes and compute the appropriate child support amount. Child Supp. G. 3(B), cmt. 1. Each party bears the burden of justifying the incomes used in his or her own worksheet.

Mother and Father each submitted child support obligation worksheets to assist the trial court in calculating their weekly gross incomes. Mother stated Father's income was $1,377.00 per week and she requested $156.98 per week in child support. Father proposed the trial court find his weekly gross income was $945.23, so his child support obligation would be $108.00.

One method of treating irregular income is to require the obligor to pay a fixed percentage of the irregular income "in child support on a periodic but predetermined basis (weekly, bi-weekly, monthly, quarterly) rather than by the process of determining the average of the irregular income by past history and including it in the obligor's gross income calculation." Child Supp. G. 3(A), cmt. 2(b). Father invites us to remand this matter to the trial court "with instructions to determine [his] base income for purposes of calculating child support" (Appellant's Br. at 11), and asserts "the trial court should determine an appropriate percentage, if any, Father should pay of any irregular income he may receive." (Id.)

The trial court found Father's weekly gross income to be $1,170.00 based on Father's average income for a three-year period. (See Appellant's App. at 34.) The trial court took into account Father's income through August 7, 2004, which at that juncture, amounted to thirty-one weeks.

However, it does not follow, as asserted by Father, that income averaging cannot be used when an obligor's income, other than from self-employment, is subject to fluctuation. See Lloyd v. Lloyd, 755 N.E.2d 1165, 1170 (Ind.Ct.App.2001). Should Father's income hereafter diminish such that the current child support order becomes unreasonable, he is free to petition the trial court to modify the same. See Child Supp. G. 4, cmt. Therefore, we cannot say the trial court's calculation of Father's weekly gross income was clearly erroneous. See, e.g., Lea, 691 N.E.2d at 1217 (noting a rebuttable presumption that the amount of the award that would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded); Railing v. Hawkins, 746 N.E.2d 980, 982 (Ind.Ct.App.2001) (holding when a trial court determines it is not appropriate to include overtime income in the determination of a parent's child support obligation, the trial court should express its reasons). Accordingly, we affirm the trial court's calculation of Father's weekly gross income for child support purposes.

2. Child Support Arrearage

Father argues the trial court erred in ordering him to satisfy a child support arrearage. Father maintains there was no assertion during the hearing he was delinquent in the payment of any child support nor had Mother filed any action for the enforcement or collection of child support.

The trial court's order stated Father "shall pay an additional Twenty-Seven Dollars ($27.00) per week on the arrearage accumulated since the date of the filing of the case on 17 May, 2004, until the arrearage is satisfied." (Appellant's App. at 21.) Mother's counsel, in her opening statement, mentioned the arrearage the trial court addressed in its order:

There is also an issue with respect to child support. Back when the decree was entered the child support was set at ninety dollars per week. Uh, Mr. Gregory is current, or if not...