Mabry v. Jones, 032019 INCA, 18A-JP-711
| Opinion Judge | BROWN, JUDGE. |
| Party Name | Wendy Mabry, Appellant, v. Anthony Jones, Appellee. |
| Attorney | Appellant Pro Se Wendy Mabry Indianapolis, Indiana |
| Judge Panel | Bailey, J., and Bradford, J., concur. |
| Case Date | March 20, 2019 |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Marion Circuit Court Trial Court Cause No. 49C01-0404-JP-1141 The Honorable Marie Kern, Magistrate
Appellant Pro Se Wendy Mabry Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE.
[¶1] Wendy Mabry ("Mother"), pro se, appeals the trial court's order denying her motion to modify the child support obligation of Anthony Jones ("Father"). Mother raises thirteen issues which we consolidate and restate as whether the court's findings are clearly erroneous. We affirm in part, reverse in part, and remand.
Facts and Procedural History
[¶2] Mother and Father have one child together. On October 19, 2006, the court entered a judgment of paternity and support providing that Mother and Father have joint legal custody, that Mother have primary physical custody and Father have parenting time, that Father pay child support of $69 per week, and that both parties provide medical insurance for the child. A child support obligation worksheet ("CSOW") dated October 19, 2006, showed Father's weekly gross income as $440, Mother's weekly gross income as $320, a prior born child or children credit of $95 for Mother, a parenting time credit of $6 for Father, and a recommended support obligation by Father of $69. An entry in the chronological case summary ("CCS") dated March 18, 2013, states the parties have no ability to communicate with each other and awarded legal custody to Mother.1 On April 30, 2014, the court entered a minute entry stating that Mother had requested a modification of child support, that a twenty percent change would have required an order of $83, that the calculation showed $80, and that Mother's request was denied. The court's worksheet showed Father's weekly gross income as $610, Mother's weekly gross income as $290, a subsequent child credit of $18.85 for Mother, a prior born child or children credit of $43 for Mother, a health insurance premium credit of $34.66 for Father, a parenting time credit of $7.19 for Father, and a recommended support obligation by Father of $80.
[¶3] An entry in the CCS dated January 26, 2016, states that Mother filed a motion to modify. On February 15, 2017, the court held a modification hearing. On March 8, 2017, the court entered an Order on Modification of Child Support which provided: 1. Father's current order for child support is $69 per week.
2. Mother is currently unemployed. She has a prior born child who is in college and is 18 years old; Mother is financially responsible for that child. Mother argues she should be given a credit for the legal duty associated with that child of $75 per week, but has provided no evidentiary basis for that number. Mother has a subsequent born child who lives with her.
4. Father . . . is paid $16.55 per hour and averages 40 hours per week, for a weekly gross income of $662. Father receives some overtime opportunities; for 2016, he earned $2, 255.47 in overtime pay.
5. Father maintains private health insurance on behalf of the minor child, but is not certain of the cost for the child's portion of that premium. The Court has reviewed prior calculations on support and notes that Father was previously given credit for $34.66 as the cost for the child's portion of the health insurance premiums. Based upon the Court's review of Father's current withholdings, the Court
believes this is an appropriate amount to credit Father for payment of that health insurance premium.
7. In addition to providing child support, Father provides in-kind benefits by buying clothes and shoes for the child, providing for haircuts and paying expenses associated with extra-curricular activities.
8. The Court is not including Father's overtime income in the determination of weekly gross income; over the course of 52 weeks, this overtime pay results in an average of $43 per pay period. Given the additional in-kind benefits Father provides, the Court believes it is in the child's best interests not to include that nominal amount in Father's weekly gross income determination, in order to continue to allow Father to have the ability to provide those benefits on the child's behalf.
12. The Court has prepared a CSOW, utilizing the figures as stated above. The recommended support obligation is $82 per week.
13. There must be at least a 20% difference between that child support obligation which Father is currently ordered to pay and that which is recommended by the CSOW. In order for that 20% threshold to be reached, the recommended obligation must be at least $83. Therefore, the Court cannot find that there is at least a 20% deviation between the current order and the recommended obligation under the Court's CSOW.
14. Mother's Petition to Modify Child Support is DENIED.
Appellant's Appendix Volume 2 at 23-24. The court's CSOW shows Father's weekly gross income as $662, Mother's weekly gross income as $290, a subsequent child credit of $18.85 for Mother, a prior born child or children credit of $43 for Mother, a basic child support obligation of $139, a health insurance premium credit of $34.66 for Father, a parenting time credit of $12.27 for Father, and a recommended support obligation by Father of $82. Mother filed a motion to correct error. Mother appealed and later filed a motion to remand which this court granted. After a hearing, the trial court denied Mother's motion to correct error.
Discussion
[¶4] Mother, pro se, maintains the trial court should have increased Father's child support obligation. A modification...
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