Knaus v. York

• Decision Date: 19 February 1992
• Docket Number: No. 58A01-9110-CV-303,58A01-9110-CV-303
• Citation: 586 N.E.2d 909
• Parties: Barry KNAUS, Appellant-Defendant, v. Christi YORK, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 909

586 N.E.2d 909

Barry KNAUS, Appellant-Defendant, v. Christi YORK, Appellee-Plaintiff.

No. 58A01-9110-CV-303.

Court of Appeals of Indiana First District.

Feb. 19, 1992.

W. Gregory Coy, Eaton & Romweber, Versailles, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Leneigha L. Downs, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

BAKER, Judge.

Barry Knaus appeals from an order establishing child support for his ten-year-old son, B.Y. He raises six issues for our review, which we restate as:

I. Whether it was proper for the trial court to determine Barry's visitation and child support at different hearings.

II. Whether the child support award of $107.00 per week was supported by the evidence.

III. Whether it was proper to require Barry to pay the state's expert witness fees.

IV. Whether there was sufficient evidence to support the award of $2,000.00 in back support payments.

V. Whether a list specifying the fees for the state's expert witness was properly admitted into evidence.

VI. Whether the mother's child support worksheet was properly admitted into evidence.

We affirm.

FACTS

In 1982, Christi York (Christi) filed a petition to establish the paternity of her son, B.Y. The trial was not held until January 30, 1991, at which time the jury

found Barry Knaus (Barry) was B.Y.'s father. B.Y. was ten years old when the paternity determination was finally made. The court entered Barry's child support obligations on May 30, 1991, and his visitation rights were decided at a hearing on August 2, 1991.

DISCUSSION AND DECISION

I

First, Barry argues it was impermissible for the trial court to determine child support and visitation in separate hearings. IND.CODE 31-6-6.1-10(a) provides, in relevant part: "Upon finding that a man is the child's biological father, the court shall, in the initial determination, conduct a hearing to determine the issues of support, custody, and visitation." Barry construes this statute to require that support, custody, and visitation must be decided in one hearing. We disagree.

When construing a statute we give words their ordinary significance and commonly accepted meaning unless from the statute a different meaning is clearly manifested. In re R.B.T. (1990), Ind.App., 550 N.E.2d 769, 770. Furthermore, we must view a statute within the context of the entire act. Id.

Barry does not argue that he has been denied visitation rights; he concedes that on August 2, 1991, the court held a hearing for this very purpose. Neither does he show that he has been prejudiced by the court conducting separate hearings for child support and visitation. He simply complains that his visitation rights were not decided at the same hearing when his child support obligation was decided.

As the state ¹ correctly notes, decisions regarding child support and visitation rights lie within the trial court's sound discretion. In re Bratcher (1990), Ind.App., 551 N.E.2d 1160, 1163 (child support orders are for the trial court's discretion); In re Joe (1985), Ind.App., 486 N.E.2d 1052, 1055 (decisions involving visitation rights are committed to the discretion of the trial court). By construing the statute to require that all decisions be made in one hearing, we saddle the trial court with the burdensome requirement that all issues be prepared for resolution before any one may be decided. Because trial courts have discretion when making child support and visitation orders, they are afforded the same discretion to decide whether to hear the evidence in one hearing or in separate hearings. This discretion is not inconsistent with the mandate that the court conduct "a hearing to determine the issues of support, custody, and visitation." IND.CODE 31-6-6.1-10(a).

II

Next, Barry argues that the child support award of $107.00 per week was not supported by the evidence. ² Specifically, he complains that the award more than doubles Christi's take home pay and exceeds her expenses to support B.Y., the support order does not take into consideration expenses incurred by Barry to drive 315 miles to see his son, and the court failed to deduct enough from Barry's weekly available income for Barry's obligations to his three other children. This court reviews child support orders only for an abuse of discretion. In re Bratcher, supra, at 1163. We will not reweigh the evidence or substitute our judgment for that of the trial court. Farmer v. Minor (1986), Ind.App., 495 N.E.2d 553, 559, trans. denied.

When the trial court orders child support payments, IND.CODE 31-6-6.1-13(a) provides that it must consider all relevant factors, including:

(1) The financial resources of the custodial parent.

(2) The standard of living the child would have enjoyed had the parents been married and remained married to each other.

(3) The physical and mental condition of the child and his educational needs.

(4) The financial resources and needs of the noncustodial parent.

Furthermore, the trial court is to apply the Indiana Child Support Guidelines in "every instance in which child support is established including, but not limited to, dissolutions of marriage and paternity actions." Commentary, Ind. Child Support Guideline 2.

Here, the trial court arrived at Barry's support obligation by applying the Indiana Child Support Rules and Guidelines as adopted by the Indiana Supreme Court. From the evidence offered by both Christi and Barry, the trial judge found that Barry's weekly gross income was $657.00, and Christi's was $120.00. The court then deducted from Barry's weekly income $120.00 for his support obligation to three other children, which made his available weekly income $537.00. The basic child support obligation for B.Y. was calculated to be $111.00 plus $20.00 per week for Christi's work-related baby-sitting expenses, for a total of $131.00. Using the Guidelines, the trial court determined that Barry was responsible for 82% of the $131.00, or $107.00. To alleviate financial hardship to Barry, the trial court phased in the support payment by ordering Barry to pay $60.00 a week for the first year. Thereafter, Barry must pay $107.00 a week until B.Y. attains majority, marries, becomes emancipated, enters military service, or until further ordered by the court.

First, Barry complains that the $107.00 award more than doubles Christi's take home pay and exceeds the expenses she incurs for B.Y. The record reveals that Christi currently works approximately 32 hours every two weeks while she carries 13 hours as a student at the University of Cincinnati. She is able to provide for her ten-year-old son only with financial assistance from her family, which includes living rent-free with Christi's grandmother. Christi testified, however, that she pays for half of the food out of her income. We find that the award complies with the recommended Guidelines and is supported by Barry's income, Christi's income, and the standard of living B.Y. would have enjoyed had his parents married each other and remained married. Commentary, Child Support Guideline 1. In light of this evidence, it was not an abuse of the trial court's discretion to order Barry to pay $107.00 per week to assist with his son's support. See In re R.B.T., supra, at 772.

Barry also argues that the trial court should have deviated from the guidelines because he will incur "significant travel expenses" to visit the child. See Commentary, Child Support Guideline 1. Barry lives in Michigan and B.Y. resides in Southern Indiana. At trial, Barry failed to offer evidence regarding future travel expenses or to request that the trial court consider travel expenses when determining his support obligation. Because this issue was not first raised at trial, it is accordingly waived. Williams v. City of Indianapolis (1990), Ind.App., 558 N.E.2d 884, 887, trans. denied. We note that even if Barry had properly raised the issue at trial, the determination of whether the expenses were significant and whether to consider them would have been left to the trial court's sound discretion. See, e.g., Lulay v. Lulay (1991), Ind.App., 583 N.E.2d 171 (apportionment of uninsured medical expenses under the guidelines is left to the trial court's sound discretion).

Barry also argues that the trial court failed to deduct enough from his weekly available income to reflect his support obligations to three other children. Pursuant to Child Support Guideline 3(C)(2), the trial court should deduct from the parent's weekly gross income his legal support duty for other children. In this case, the court deducted $120.00 per week for support obligations Barry owed to three other children. Without providing explanation or legal authority, Barry states that the deduction should have been $209.00. We disagree.

We note that Christi correctly recognizes in her Appellee's Brief that any deduction was, in fact, contrary to the "first in time, first in right rule." Commentary, Child Support Guideline 3(C). Under the commentary to the Guidelines, therefore, the trial court, in its discretion, is permitted to not consider support of later born children when calculating the income available to support first born children. Here, the three other children to whom Barry owes support were born after B.Y. Because the trial court could have allowed no deduction for support obligations owed to the later born children, we find that the $120.00 deduction was not an abuse of the trial court's discretion.

III

Next, Barry argues that the trial court abused its discretion when it ordered him to pay the state's expert witness fees of $700.00. He argues that because IND.CODE 31-6-6.1-18 provides for recovery of the reasonable expenses of any medical tests and reasonable attorney's fees, but does not provide for expert witness fees, the legislature necessarily intended to exclude recovery of expert witness fees in paternity actions. We disagree.

Under IND.CODE 31-6-6.1-8, blood testing in...