Saalfrank v. Saalfrank
| Decision Date | 31 December 2008 |
| Docket Number | No. 02A04-0803-CV-143.,02A04-0803-CV-143. |
| Citation | 899 N.E.2d 671 |
| Parties | Brenda SAALFRANK, Appellant, v. Scott SAALFRANK, Appellee. |
| Court | Indiana Appellate Court |
Brenda Saalfrank, Fort Wayne, IN, Appellant pro se.
Heidi K. Koeneman, Christoff & Christoff, Fort Wayne, IN, Attorney for Appellee.
Brenda Saalfrank ("Mother") appeals the trial court's Order regarding Child Support, Modifying Parenting Time, and regarding Contribution to Post-Secondary Education ("Modification Order"). We affirm.
Mother presents four issues, which we consolidate and restate as follows:
I. Whether the trial court clearly erred in not modifying child support;
II. Whether the trial court abused its discretion in modifying parenting time; and
III. Whether the trial court abused its discretion in ordering Mother to pay attorney fees to Father.
Meanwhile, Scott Saalfrank ("Father") raises the sole issue of whether he should recover appellate attorney fees.
Mother and Father had two children, B.S. born in 1989 and A.S. born in 1992. Their marriage was dissolved in 1998. Mother received custody of their two children, and Father was ordered to pay $195 per week in child support. In 1999, child support was modified to $183 per week. Father also paid $25 per week for the children's health care insurance.
Father moved to Indianapolis in 2001 and then relocated to Dixon, Illinois in 2007 for a higher-paying job. The drive between Dixon and Mother's home in Ft. Wayne is approximately five hours.
Mother, a registered nurse, entered a relationship with a doctor ("Doctor"); they resided together and had two subsequent-born children ("Subsequent Children"). She worked full-time at a hospital through 2002. From 2003 through 2006, she worked part-time for the Doctor, doing collections, bookkeeping, and scheduling. She earned no income in 2007.
Mother and Father each filed a petition to modify parenting time. In addition, Mother filed a petition to modify child support, while Father filed a petition for college expenses and a request for sanctions arising from discovery violations.1
An evidentiary hearing was conducted on February 5, 2008. After the hearing, the trial court entered its Modification Order and ordered Mother to pay Father $4070 in attorney fees.
Mother now appeals, pro se.
Mother argues that the trial court abused its discretion in not modifying child support. As a general matter, the trial court found that the circumstances had not changed substantially. However, in light of the trial court's findings as to B.S.'s aptitude and ability, the trial court ordered support for his college education expenses. The trial court therefore performed two child support calculations, differing only in whether B.S. attended a "college away from home." Appendix at 14. If so, Father's child support would be reduced to $143 per week, effective September 1, 2008. Otherwise, child support would remain unchanged. In fact, the trial court's updated calculation produced a child support obligation of $183 per week, precisely the same amount Father was already ordered to pay.
"A trial court's calculation of child support is presumptively valid." Young v. Young, 891 N.E.2d 1045, 1047 (Ind.2008). We reverse a decision regarding child support only if it is clearly erroneous or contrary to law. Id. We do not reweigh the evidence and consider only the evidence most favorable to the judgment. Tirey v. Tirey, 806 N.E.2d 360, 363 (Ind. Ct.App.2004), trans. denied. Modification of child support may be made only if the circumstances changed so substantially that the terms became unreasonable or if child support under the existing order differed by more than twenty percent from a calculation of child support under the new circumstances. Ind.Code § 31-16-8-1(b) and Ind. Child Support Guideline 4. As the petitioner, Mother had the burden of establishing that she was entitled to have the child support order modified. Cross v. Cross, 891 N.E.2d 635, 641 (Ind.Ct.App. 2008).
Mother does not contest the reduction of child support if B.S. goes to college away from home and, at least on appeal, does not contest her duty to contribute toward B.S.'s college expenses. Her claim is that the trial court made five errors in determining the parents' respective weekly gross incomes and she asks for child support to be reconsidered in light of the five alleged errors.
The following summarizes the trial court's findings and Mother's argument for the parents' respective Weekly Gross Incomes and the Recommended Child Support Obligation:
Findings Mother Difference
Father's Weekly
Gross Income $1615 $1712 ($ 97)
Mother's Weekly
Gross Income $1393 $ 521 $872
Child Support
Obligation $ 183 $ 289 ($106)
This demonstrates that most of Mother's argument pertains to the calculation of her Weekly Gross Income.
The Indiana Child Support Guidelines provide as follows for potential income and subsequent children:
If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor's work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community.
Ind. Child Support Guideline 3(A)(3). The Commentary to this Guideline provides that one purpose of imputing potential income to a parent "is 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(A), Commentary 2(c). Furthermore,
When a parent has some history of working and is capable of entering the work force, but voluntarily fails or refuses to work or to be employed in a capacity in keeping with his or her capabilities, such a parent's potential income should be determined to be a part of the gross income of that parent. The amount to be attributed as potential income in such a case would be the amount that the evidence demonstrates he or she was capable of earning in the past. If for example the custodial parent had been a nurse or a licensed engineer, it is unreasonable to determine his or her potential at the minimum wage level.
[R]egular and continuing payments made by a family member, subsequent spouse, roommate or live-in friend that reduce the parent's costs for rent, utilities, or groceries, may be the basis for imputing income. The marriage of a parent to a spouse with sufficient affluence to obviate the necessity for the parent to work may give rise to a situation where either potential income or imputed income or both should be considered in arriving at gross income.
Child.Supp. G. 3(A), Comm. 2(d).
Mother worked full-time as a registered nurse at a hospital until 2002, when she earned $53,081. Because Mother's hospital gave cost-of-living adjustments to nurses, if she had remained employed at the hospital, then her 2007 income would have been at least $60,811. From 2003 through 2006, she worked part-time for the Doctor, performing clerical work. She earned no income in 2007, but her nursing license was still active. Father introduced summaries of nursing positions available in January 2008, compiled by two hospitals. The trial court found Mother to be voluntarily unemployed. While not remarried, Mother, Doctor, B.S., A.S., and the Subsequent Children lived together. Mother did not pay for housing or utilities. Finally, while Mother testified at the hearing that working full-time would cause her to have day-care expenses for her two Subsequent Children, she submitted no evidence regarding the amount of such expenses. She therefore failed to meet her burden of proof as to that assertion. Based upon the evidence, the record contained support for the trial court's decision to include Mother's potential earnings in calculating her Weekly Gross Income.
Mother asserts that the trial court erred in not accounting for her two Subsequent Children. Within the calculation, subsequent children are addressed by use of a multiplier that reduces the parent's Weekly Gross Income. Child.Supp. G. 3(A)(4) and Comm. 3. The multiplier varies by the number of subsequent children, for example, .935 for one subsequent child and .903 for two subsequent children. Id. There is a rebuttable presumption that the application of the Guidelines produces "the correct amount of child support to be awarded." Ind. Child Support Rule 2. "If the court concludes from the evidence in a particular case that the amount of the award reached through application of the guidelines would be unjust, the court shall enter a written finding articulating the factual circumstances supporting that conclusion." Ind. Child Support Rule 3 (emphasis added). "Deviation is proper if strict application of the Guidelines would be `unreasonable, unjust, or inappropriate.'" Garrod v. Garrod, 655 N.E.2d 336, 338 (Ind.1995) (citation omitted) (emphasis added); see also Young, 891 N.E.2d at 1048 ().
Here, the trial court deviated from the Guidelines by concluding that the calculation in this case should not account for Mother's two Subsequent Children. As required, the trial court found and stated in writing its reason for deviating from the Guidelines. However, the trial court changed the calculation itself, by not using the multiplier, rather than performing the calculation as specified and then considering deviation.
While perhaps a technicality, our review reveals no support for deviating from the precise method of the Guideline calculation. To the contrary, the plain...
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