In re Paternity of EMP, 45A04-9908-JV-346.

• Decision Date: 13 January 2000
• Docket Number: No. 45A04-9908-JV-346.,45A04-9908-JV-346.
• Citation: 722 N.E.2d 349
• Parties: In re The Matter of the PATERNITY OF E.M.P. Darren Beavers, Appellant-Petitioner, v. Eva Eskew, Appellee-Respondent.
• Court: Indiana Appellate Court

722 N.E.2d 349

In re The Matter of the PATERNITY OF E.M.P.

Darren Beavers, Appellant-Petitioner, v. Eva Eskew, Appellee-Respondent.

No. 45A04-9908-JV-346.

Court of Appeals of Indiana.

January 13, 2000.

George R. Livarchik, Livarchik & Farahmand, Chesterton, Indiana, Attorney for Appellant.

James E. Rice, Rice & Kapitan, Highland, Indiana, Attorney for Appellee.

OPINION

SHARPNACK, Chief Judge

Darren Beavers ("Father") appeals from the trial court's order modifying his child support obligation. Father raises the following issues, which we restate as:

1) whether the trial court erred in finding that Father was voluntarily underemployed and in calculating his child support obligation based upon his potential income;

2) whether the trial court erred in ordering Father to pay Mother's attorney fees; and

3) whether the trial court erred in failing to reduce Father's gross weekly wages by the actual amount of court ordered support for his two subsequent children.

We affirm in part, reverse in part, and remand to the trial court.

The facts most favorable to the judgment follow. On April 20, 1992, E.P. was born out-of-wedlock to Eva Eskew ("Mother"). On January 14, 1994, a paternity order was entered which established that Beavers was the father of E.P. Father was ordered to pay $45.00 per week in child support.

Sometime after E.P.'s birth, Father had two subsequent children with his wife. However, this marriage ended in divorce in 1997. Father's ex-wife was awarded custody of the children, and Father was ordered to pay $165.00 per week in child support. Then, on June 8, 1998, Mother filed a petition for modification seeking an increase in the amount of support previously ordered for E.P. and requesting attorney fees. At the time Mother filed the petition for modification, Father was employed as a garbage collector. As a garbage collector, Father earned $34,707.78 in gross wages in 1996. In 1997, he earned $36,027.69. Father's earnings again increased in 1998, earning a gross salary of $46,680.00 for the year. However, on June 1, 1999, just eight days before the evidentiary hearing on Mother's petition for modification was held, Father quit his job as a garbage collector and began working for GTE. His rate of pay at the time of the hearing was $12.10 per hour, which equates to $484.00 in gross weekly wages, or $25,168.00 yearly. Father testified that he changed jobs, with a resulting significant decrease in pay, due to his bad knees, health concerns resulting from previous injuries incurred during his employment as a garbage collector, and to receive better benefits. With regard to Mother, it was uncontested that she has two subsequent born children who reside with her and that she has gross weekly wages of $600.00 per week, or $31,200.00 per year.

The trial court found that Father was voluntarily underemployed and therefore based its support order on his 1998 wages. However, because Father has two subsequent children, the trial court reduced the amount of his weekly wages, which the support order was based on, by .903, the appropriate factor established by the Child Support Guidelines for two children. Accordingly, Father was ordered to pay $115.80 per week in child support for E.P. The trial court also ordered Father to pay Mother's attorney fees in the amount of $800.00.

Modification of a child support order requires a showing of "a substantial change in circumstances that makes the terms unreasonable." Ind.Code § 31-14-11-8; see also Ind. Child Support Guideline 4 ("[t]he provisions of a child support order may be modified only if there is a substantial and continuing change of circumstances"). In reviewing a determination of whether child support should be modified, we will reverse the decision only for an abuse of discretion. Elliott v. Elliott, 634 N.E.2d 1345, 1348 (Ind.Ct.App. 1994), reh'g denied. We review the evidence most favorable to the judgment without reweighing the evidence or reassessing the credibility of the witnesses. Id. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court, including any reasonable inferences therefrom. Id.

I.

As his first assignment of error, Father alleges that the trial court erred in finding that he was voluntarily underemployed and in calculating his child support obligation based upon his potential income. In Indiana, when a parent becomes voluntarily unemployed or underemployed, the trial court must calculate support based upon a determination of potential income. Ind. Child Support Guideline 3(A); In re Paternity of Buehler, 576 N.E.2d 1354, 1355 (Ind.Ct.App.1991). The amount of potential income to be used is determined by considering the obligor's potential and probable earnings level based on the obligor's work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community. Id. The purposes behind determining potential income are to "discourage a parent from taking a lower paying job to avoid the payment of significant support" and to "fairly allocate the support obligation when one parent remarries, and because of the income of the new spouse, chooses not to be employed." Child Supp.G. 3, cmt. 2c; see also, Buehler,576 N.E.2d at 1355-1356. However, child support orders cannot be used to force parents to work to their full economic potential or make their career decisions based strictly upon the size of potential paychecks. Buehler,576 N.E.2d at 1356.

Father argues that because he has "legitimate reasons for changing to a lower paying job" and because "there is no evidence he changed jobs to evade a child support obligation," the trial court erred in finding him underemployed. Appellant's Brief, p. 22. Citing numerous decisions from this court, Father asserts that "[n]o known Indiana decision has found a parent is voluntarily unemployed or underemployed where the evidence shows some other legitimate reason to leave employment or take a lower paying position." Appellant's Brief, p. 14; Reply Brief, p. 1. Although the majority of the cases cited by Father are factually distinguishable, we do find support for Father's position in Elliott and Ullery. Elliott v. Elliott, 634 N.E.2d 1345 (Ind.Ct.App.1994), reh'g denied; Ullery v. Ullery, 605 N.E.2d 214 (Ind.Ct.App. 1992), trans. denied.

In Elliott, the father was fired from his job as a truck driver without good cause. Elliott, 634 N.E.2d at 1347. After a successful hearing seeking unemployment benefits, the father did not seek reemployment with his original employer because his former manager was no longer friendly with him. Id. at 1349. After four months of unemployment, he found another job making $80.00 less per week. Id. In addressing the mother's contention that the father could be earning more than he was currently, we noted that not only did the mother not present evidence that such higher earning positions were available, but that a parent may have legitimate reasons to leave his employment or to take a lower paying job. Id. Although we affirmed the child support order on other grounds, we held that it would be erroneous to find the father to be voluntarily underemployed. Id.

In Ullery, the most factually analogous case that Father cites, the father quit his job after the mother filed a petition to modify child support, assertedly because his employer was not treating him fairly. Ullery, 605 N.E.2d at 215. He denied that he quit as a result of the filing of the petition or that he had chosen not to be gainfully employed and not to pay his support. Id. The trial court denied the mother's petition to increase child support, noting that the father was unemployed. Id. On appeal, we held that the record supported the trial court's determination that the father was not voluntarily underemployed or that his current decline in income was purposely brought about to reduce his support payments, and therefore, we could not conclude that the trial court's refusal to increase his payments was an abuse of discretion. Id. at 216.

Here, Father testified that he had been pursuing this job change for three years. As a garbage collector, Father lifted twenty to twenty-four tons of garbage for six to seven and a half hours a day. Being tired after work and wanting only to go to sleep, Father testified that he did not want this to continue for the next forty years. Additionally, Father testified that he had bad knees, as well as other health concerns resulting from previous injuries incurred during his employment as a garbage collector. Father also indicated that his new job had better benefits and that he would gradually make more money the longer he was on the job. All of these facts, taken together, indicate that Father's decline in income was not purposely brought about to reduce his support payments. See id. at 215. Further, it appears that Father has legitimate reasons for quitting his job and taking a reduction in pay. See Elliott, 634 N.E.2d at 1347

. Keeping in mind that child support orders cannot be used to force parents to work to their full economic potential or make their career decisions based strictly upon the size of potential paychecks, we hold that there was no basis for a determination that Father was voluntarily underemployed for the purpose of determining his child support obligation. See Buehler,

576 N.E.2d at 1356.

II.

Father next contends that the trial court erred in ordering him to pay Mother's attorney fees. The trial court has broad discretion in assessing attorney fees, and we review an award of attorney fees for an abuse of discretion. Collier v. Collier, 696 N.E.2d 47, 53 (Ind.Ct.App. 1998), rev'd in part on other grounds, 702 N.E.2d 351 (Ind.1998)

. Accordingly, reversal is warranted only when the trial court's award is clearly against the logic and effect of the facts and circumstances before the court. Id. In assessing attorney's fees, the trial court...