Vandenburgh v. Vandenburgh

• Decision Date: 16 November 2009
• Docket Number: No. 64A05-0811-CV-673.,64A05-0811-CV-673.
• Citation: 916 N.E.2d 723
• Parties: Thomas L. VANDENBURGH, Appellant-Petitioner, v. Candace A. VANDENBURGH, Appellee-Respondent.
• Court: Indiana Appellate Court

916 N.E.2d 723

Thomas L. VANDENBURGH, Appellant-Petitioner, v. Candace A. VANDENBURGH, Appellee-Respondent.

No. 64A05-0811-CV-673.

Court of Appeals of Indiana.

November 16, 2009.

Steven M. Bush, Millbranth and Bush, Valparaiso, IN, Attorney for Appellant.

OPINION

MAY, Judge.

Thomas Vandenburgh ("Father") appeals various child support issues, a finding he was in contempt, and an award of attorney fees to his former wife Candace ("Mother"). We affirm in part and remand.

FACTS AND PROCEDURAL HISTORY

Mother and Father were divorced in 2003. They had three children—Lisa, who at the time of the modification hearing that is part of the subject of this appeal, was twenty-one and a senior at Indiana University; John, who was going to be a senior at Purdue; and Mark, who was going to be a senior in high school. In September of 2006, after various motions, hearings, and orders, Father sought a child support modification. In an order issued June 30, 2008, the trial court modified support, determined Father owed Mother $2,500 in attorney fees, and found Father in contempt.¹

DISCUSSION AND DECISION

We note Mother did not provide us with an appellee's brief. When an appellee does not file a brief, we do not need to develop an argument for her and we apply a less stringent standard of review. In re Guardianship of R.M.M., 901 N.E.2d 586, 588 (Ind.Ct.App.2009). We may reverse the trial court if the appellant is able to establish prima facie error, which is error at first sight, on first appearance, or on the face of it. Id. The appellee's failure to submit a brief does not relieve us of our obligation to correctly apply the law to the facts in the record in order to determine whether reversal is required. Khaja v. Khan, 902 N.E.2d 857, 868 (Ind.Ct.App.2009), reh'g denied. Because of the multiple deficiencies in his brief, Father has not shown prima facie error.

1. Child Support—Overnight Credit and Split Custody

Decisions regarding child support generally rest within the sound discretion of the trial court. Smith v. Smith, 793 N.E.2d 282, 284 (Ind.Ct.App.2003). We reverse such a determination only if there has been an abuse of discretion or the trial court's determination is contrary to law. Id. By the same token, the purpose of child support is the welfare of the child and not the punishment of the father. Id. In some circumstances, a credit may be granted to the noncustodial parent in the event of nonconforming support payments. Id. at 284-85. More specifically, the trial court may afford relief from an unmodified support order if the noncustodial parent has, by agreement with the custodial parent, assumed custody and has provided food, clothing, shelter, medical attention, and school expenses and has exercised parental control for an extended period. Id. at 285.

The trial court expressly declined to enter a parenting time credit as to Mark. Father asserts that was an abuse of discretion because Mark testified he stayed overnight with Father Mondays and Thursdays every week and approximately twenty additional overnights per year.²

Indiana Child Support Guideline 3(G)(4) provides that trial courts "may grant the noncustodial parent a credit toward his or her weekly child support obligation ... based upon the calculation from a Parenting Time Credit Worksheet." Young v. Young, 891 N.E.2d 1045, 1047 (Ind.2008). We must decline father's invitation to hold this guideline required the trial court to do so.

In Sherrard v. Bd. of Comm'rs of Fulton County, 151 Ind.App. 127, 130, 278 N.E.2d 307, 309 (1972), we noted the rule of statutory construction that "[w]ords and phrases shall be taken in their plain, or ordinary and usual, sense. Technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import." (quoting Ind.Code § 1-1-4-1).³ There we addressed a statute that said if a county surveyor is registered, "then the county council may increase the salary of one and one half (1 1/2) the base salary by any amount not to exceed $2000.00 per year." Id. at 129, 278 N.E.2d at 309. We determined the language of that statute need not be interpreted "in a technical nature," so we treated the words "may" and "shall" in their "plain and ordinary sense of being discretionary and mandatory respectively." Id. at 130, 278 N.E.2d at 309.

We do not believe language in the Child Support Guidelines must be interpreted "in a technical nature," and accordingly hold the language "may grant the noncustodial parent a credit toward his or her weekly child support obligation" means what it says—such credit is not mandatory. See Grant v. Hager, 868 N.E.2d 801, 802 (Ind.2007) (noting under the Guidelines, a Parenting Time Credit is "authorized" based on the number of overnights children spend with the non-custodial parent). We accordingly decline to hold the trial court was obliged to grant parenting time credit just because Father asked it to and provided evidence that might permit such credit.

Nor may we reverse a parenting time credit determination unless the trial court manifestly abuses its discretion. Saalfrank v. Saalfrank, 899 N.E.2d 671, 681 (Ind.Ct.App.2008). "No abuse of discretion occurs if there is a rational basis in the record supporting the trial court's determination." Id. The record before us supports the trial court's determination.

The Child Support Guidelines contain a formula for calculating parenting time credit based on the number of "overnights" per year that the noncustodial parent spends with the children. Child Supp. G. 6 Table PT. The commentary to the guidelines provides an "overnight" "should include ... the costs of feeding and transporting the child, attending to school work and the like. Merely providing a child with a place to sleep in order to obtain a credit is prohibited." Child Supp. G. 6 cmt. The rationale behind the parenting time credit is that overnight visits with the noncustodial parent may alter some of the financial burden of the custodial and noncustodial parents in caring for the children. Young, 891 N.E.2d at 1048. Because calculating the amount of financial burden alleviated by an overnight visit is difficult, the guidelines provide a standardized parenting time credit formula. Id. Not all visits in which a child stays overnight may qualify for the parenting time credit. Id.

Mark testified as to the number of occasions when he stayed overnight with Father, and he testified Father provides dinner and breakfast on those occasions. But he also testified Mother paid for his clothing, medical care, and contributed to the purchase of his car, and that he provides his own transportation to school. There was evidence before the court that the overnights did not "alter some of the financial burden of the custodial and noncustodial parents in caring for the children" to the extent a credit was required. We cannot find an abuse of discretion.

Father also asserts the trial court did not properly "calculate a split custody child support," partly because it did not grant Father a credit for the overnights addressed above, but also because it abused its discretion when it "gave [Mother] a credit for insurance when the testimony was that [Father] provided insurance for John," (Br. of Appellant at 17), and when it did not include a post-secondary worksheet for John.

As to the former allegation, Father asserts "[g]iving [Mother] a credit for health insurance is contrary to the evidence, given [Father's] testimony that he provided the health insurance for John. (Tr.p.19.)" (Br. of Appellant at 17.) The record before us includes transcripts of two different hearings, and the two are not sequentially numbered. There is nothing on page nineteen of either transcript that supports Father's assertion, or even mentions John. As explained above, we are not obliged to undertake the burden of searching the record and stating Father's case for him. We accordingly decline to scour the nearly two hundred pages of transcript in the record in an attempt to find the evidence on which Father relies, and we therefore cannot address that allegation of error.

As to the latter allegation, Father asserts, "[T]he worksheets attached to the court's order do not include the overnight parenting credit, and on John's worksheet, the post-secondary educational page is not attached, thus there is no way to know what calculations the court used to arrive at the figure for Line J. (Appellant's App. p. 116-123)." (Br. of Appellant at 17.) Nothing in the eight-page span of the record to which Father refers us, including the two Child Support Obligation Worksheets found within the eight pages, appears to include a "Line J," nor does father provide a specific enough citation to the record to allow us to determine which worksheet is "John's."

While we are unable to address these allegations as presented by Father due to the deficiencies in his brief, we must remand for clarification as the Child Support Obligation Worksheets attached to the court's order are not signed or verified. We cannot review a support order to determine if it complies with the guidelines unless the order reveals the basis for the amount awarded. "Such revelation could be accomplished either by specific findings or by incorporation of a proper worksheet." Cobb v. Cobb, 588 N.E.2d 571, 574 (Ind.Ct.App.1992). The trial court's findings do not explain in detail how the court arrived at the amounts it awarded, and the worksheets were improper because they were not signed or verified. See id. (basing child support order on unverified and unsigned worksheet was error because use of such a worksheet "has no sanction under either the child support guidelines or the rules of evidence and trial procedure."). We must therefore remand so the trial court may provide more specific findings or signed and verified worksheets.

2. Contempt

The trial court correctly found Father in contempt because he "unilaterally...