IN RE: the Paternity of M.B. (2024)

MEMORANDUM DECISION

[1] Latasha Brantley (“Mother”) appeals the denial of her motion to correct error, which challenged aspects of the trial court's order in a paternity action concerning Mother's child with Keith W. Gill (“Father”), M.B. (“Child”). Mother presents three issues for our review, which we restate as:

I. Whether the trial court erred in calculating Father's child support obligation;

II. Whether the trial court erred in resolving Mother's claim that Father was in arrears under the preliminary support order; and

III. Whether the trial court abused its discretion in its handling of matters related to a child dependency tax exemption.

[2] Applying a less stringent standard of review because Father did not file an Appellee's Brief, we identify prima facie error, and therefore, reverse the challenged aspects of the order and remand with instructions regarding the payment of child support and arrearages and the allocation of the exemption.

Facts and Procedural History

[3] Mother and Father are the parents of Child, who was born on April 20, 2022. In June 2022, Mother filed a pro se petition to establish Father's paternity of Child. On April 12, 2023, Mother filed a document that included what appeared to be weekly receipts for child care expenses. See Appellant's App. Vol. 2 pp. 8, 15–18.¹ On May 17, 2023, the trial court held a hearing on the petition. On August 15, 2023, the court entered a written order establishing Father's paternity of Child. The court included a preliminary custody order establishing that Mother had sole legal custody of Child, who would primarily reside with Mother, with a phase-in period for Father's parenting time. As to child support, the trial court entered a preliminary order requiring Father to pay Mother $148.00 per week beginning on Friday of that week. See id. at 21. At that time, Father was unemployed. The trial court attached a Child Support Obligation Worksheet, which documented how the court arrived at the figure of $148.00 per week. The worksheet reflected that the court was accounting for expenses Mother was currently paying for Child, which were $75.00 per week for health insurance and $210.00 per week for child care. See id. at 21, 23.²

[4] On December 4, 2023, Mother filed a document with the court titled “Kiddoz Childcare Financial Agreement,” which seemed to reflect that Mother was now incurring $290.00 per week for child care rather than only $210.00 per week. Id. at 24. The trial court held a final hearing on April 2, 2024, where Mother and Father proceeded pro se. By that point, Father was employed. At the hearing, the court asked Mother whether any circumstances had changed since the court entered the preliminary child support order. Mother responded that she was seeking an increase in child support “due to daycare costs and ․ [Child's] insurance.” Tr. Vol. 2 p. 8. Mother testified that she was still paying $75.00 per week for Child's health insurance premium and was now paying $290.00 per week for child care, which was $80.00 more per week than reflected in the preliminary child support order. See id. at 10. Although Mother had previously filed documents bearing on child care expenses, including the Kiddoz Childcare Financial Agreement, Mother did not refer to those filings or tender documentary evidence at the hearing supporting her claimed expenses. At one point, the court addressed the preliminary child support order. Father testified that he believed he was current on child support under the preliminary order, but Mother said Father was in arrears. The court asked Mother whether she had “the child support printouts ․ from the Clerk's Office” reflecting Father's payments. Id. at 21. Mother did not have current documents but said she “called today” and learned there was an “arrearage of $1,900.00.” Id. at 22.

[5] On April 5, 2024, the trial court issued its final order on legal custody, parenting time, and child support. Under the order, Mother had sole legal custody and the parties shared physical custody pursuant to an agreed parenting time schedule. Based on the agreed schedule, Child stayed with Mother the majority of the time, with Father exercising regular parenting time. As for financial matters, the trial court provided that the parties would “alternate claiming [Child] as a dependent for the purposes of state and federal taxes.” Appellant's App. Vol. 2 p. 26. The trial court then specified that “Mother will claim [Child] on odd-numbered taxable years and Father will claim [Child] on odd-numbered taxable years” so long as he was at least 95% compliant with child support. Id. at 26–27. The trial court also ordered Father to pay $167.00 per week in child support. See id. at 26. The court attached a worksheet supporting its calculation, with the worksheet reflecting that it attributed $0.00 in expenses for Child's health insurance premium and child care. Regarding these claimed expenses, the court stated: “The Court does not find Mother's testimony regarding the weekly amount of health insurance premium and day care [sic].” Id. As evidenced by a subsequent amendment to the order, the trial court meant to say that it did not find Mother's testimony on these matters “to be credible.” See id. at 39. Based on this finding, the court said that it “d[id] not enter the amounts [related to those claimed expenses] into the child support calculation.” Id. at 26. As for Mother's claim that Father was in arrears under the preliminary support order, the trial court did not calculate an arrearage or order payment of any arrearage, stating: “The Court is unable to determine Father's arrearage amount as no payment information was provided.” Id.

[6] Mother obtained counsel and filed a “Verified Motion to Correct Error Pursuant to Ind. Trial Rule 59 and Motion to Calculate Child Support Arrearages” on April 11, 2024. Id. at 29–37. Therein, Mother argued that the trial court erred by failing to account for her child care and health insurance expenses when calculating child support. See id. at 29–31. She ultimately asked that the court “amend its [o]rder and recalculate Father's weekly child support obligation to include [her] weekly payments for childcare and health insurance” and calculate “Father's arrearages ․ based on any increase in his weekly child support obligation.” Id. at 30. On April 19, 2024, the trial court summarily denied Mother's motion to correct error. On the same date, the trial court issued an amended order on the final hearing that “replac[ed] the order issued on April 5, 2024.” Id. at 38. The only substantive difference was that, in the amended order, the court inserted the omitted phrase “to be credible” to clarify that it had not found Mother's testimony credible regarding health insurance and child care expenses. Compare id. at 26 with id. at 39. Mother now appeals.

Discussion and Decision

[7] Mother appeals following the denial of her motion to correct error. To the extent the trial court's ruling involved a question of law, our review is de novo. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied. We otherwise review a ruling on a motion to correct error for an abuse of discretion. In re Marriage of Dean, 787 N.E.2d 445, 447 (Ind. Ct. App. 2003), trans. denied. The court abuses its discretion when a ruling is clearly against the logic and effect of the facts and circumstances, or it misinterpreted the law. Id.

[8] In this case, Father did not file an Appellee's Brief. Under the circumstances, we need not develop arguments on Father's behalf. See Branham v. Varble, 952 N.E.2d 744, 746 (Ind. 2011). Rather, we apply a less stringent standard of review that allows us to reverse if Mother establishes prima facie error, see id., which is error at first sight, on first appearance, or on the face of it, State v. Miracle, 75 N.E.3d 1106, 1108 (Ind. Ct. App. 2017). Of course, Father's failure to file a brief “does not relieve of us our obligation to correctly apply the law to the facts in the record in order to determine whether reversal is required.” Id. (quoting Wharton v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015)).

I. Child Support Calculation

[9] Mother argues that the trial court erred in failing to include her claimed expenses for health insurance and child care when calculating Father's weekly child support obligation. “A trial court's calculation of child support is presumptively valid,” and “[w]e will reverse a trial court's decision in child support matters only if it is clearly erroneous or contrary to law.” Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008). As we have explained, the trial court's child support order must “reveal[ ] the basis for the amount awarded.” Carter v. Dayhuff, 829 N.E.2d 560, 569 (Ind. Ct. App. 2005) (quoting Scott v. Scott, 668 N.E.2d 691, 704 (Ind. Ct. App. 1996)). This “c[an] be accomplished either by specific findings or by incorporation of a proper worksheet” that reflects the trial court's findings. Id. Our role is to examine whether the evidence supports the trial court's findings and the findings support the judgment. Masters v. Masters, 43 N.E.3d 570, 575 (Ind. 2015). Under Trial Rule 52(A), we will not set aside the findings or judgment “unless clearly erroneous,” and we must give “due regard ․ to the opportunity of the trial court to judge the credibility of the witnesses.” Clear error is that which leaves us with a definite and firm conviction a mistake was made. Masters, 43 N.E.3d at 575.

[10] In calculating child support, the trial court must adhere to the Indiana Child Support Guidelines. See generally Ind. Child Support Rule 2. Moreover, there is a rebuttable presumption that “the amount of the award [that] would result from the application of the [guidelines] is the correct amount of child support to be awarded.” Id. However, if a trial court “concludes from the evidence in a particular case” that the guideline amount would be “unjust,” the court “shall enter a written finding articulating the factual circumstances supporting that conclusion” and any deviation from the guidelines. Child. Supp. R. 3; see also Ind. Child Support Guideline 3(F)(2). As for the amount awarded, “Indiana requires worksheets, including a Child Support Obligation Worksheet, to assist judges, practitioners, and parents in calculating the presumptive amount of child support under the [g]uidelines.” Child Supp. G. 2. When it comes to child care expenses, “[t]he parent who contracts for the child care shall be responsible for the payment to the provider of the child care.” Child. Supp. G. 3(E)(1). Those expenses should be accounted for as a credit to the parent's overall child support obligation. Id. Along these lines, if a parent pays for the child's health insurance premium, that expense should also be accounted for as a credit. Child. Supp. G. 3(E)(2); see also Child Supp. G. 3(E) cmts. 1, 2, 3.

[11] In this case, the trial court found when entering its preliminary support order that “Mother pays $75[.00] a week in health insurance for [Child] and $210[.00] a week in work-related day care expenses.” Appellant's App. Vol. 2 p. 21. Consistent with the guidelines, the court accounted for these expenses in its worksheet calculating Father's preliminary child support obligation. The final support order did not account for these types of expenses, with the court stating: “The Court does not find Mother's testimony regarding the weekly amount of health insurance premium and day care to be credible. Therefore, the Court does not enter the amounts into the child support calculation.” Id. at 39.

[12] At the hearing, Mother did not tender documentary evidence supporting her claimed expenses. However, Mother testified about her expenses, stating that she was still paying $75.00 per week for Child's health insurance premium and was now paying $290.00 per week for child care, which was $80.00 more per week than reflected in the preliminary child support order. Tr. Vol. 2 p. 10. Mother's testimony was unchallenged by Father or the trial court. Moreover, at one point during the hearing, the court verbally ordered Mother to “continue carrying health insurance” for Child. Tr. Vol. 2 p. 32. In doing so, the court made no comment about Mother's credibility as to the amount of the health insurance premium. In the end, the final order is inconsistent with the preliminary order, which recognized ongoing expenses associated with health insurance and child care, and inconsistent with the instruction to keep carrying health insurance for Child. Under the circumstances, we conclude that Mother identified prima facie error in the calculation of child support. We therefore reverse and remand for the recalculation of child support. On remand, the trial court is free to hear additional evidence supporting Mother's claimed expenses.

II. Child Support Arrearages

[13] As part of a child support order, the trial court must ascertain whether a parent is in arrears. Indeed, Indiana Code section 31-16-15-0.5(a) provides as follows:

[I]n any proceeding in which a court has ordered, modified, or enforced periodic payments of child support, the court shall include a provision ordering that child support payments be immediately withheld from the income of the obligor in an amount necessary to comply with the support order, including amounts for current child support obligations, child support arrearage, medical support, interest, and fees.

(emphasis added).

[14] Here, Mother claims the trial court should have accounted for an arrearage Father accrued under the preliminary child support order. At the hearing, there was conflicting testimony regarding Father's payments under the preliminary support order. That is, Mother testified about an “arrearage of $1,900.00” Tr. Vol. 2 p. 22. However, Father maintained that he was current on child support. In addressing Mother's claimed arrearage, the trial court did not definitively resolve whether there was an arrearage, stating only that it was “unable to determine Father's arrearage amount as no payment information was provided.” Appellant's App. Vol. 2 p. 39. In light of the trial court's statutory obligation to “include[e] amounts for ․ [any] arrearage” when entering a child support order—and because we are remanding for recalculation of child support—we instruct the trial court to comply with Indiana Code section 31-16-15-0.5(a) on remand when the trial court enters its new order on child support.

III. Tax Exemption

[15] Mother argues that the trial court abused its discretion in its handling of matters related to claiming Child as a dependent for tax purposes, which related to a tax exemption. See, e.g., Lamon v. Lamon, 611 N.E.2d 154, 158–59 (Ind. Ct. App. 1993). We review the allocation of this exemption for an abuse of discretion. See, e.g., In re Paternity of H.M.H., 691 N.E.2d 1308, 1309 (Ind. Ct. App. 1998).

[16] Under Indiana Child Support Guideline 9, the trial court must “specify in a child support order which parent may claim the child(ren) as dependents for tax purposes.” As for the allocation of this exemption, Guideline 9 also specifies that the trial court must review “each case ․ on an individual basis” and make a decision “in the context of each case.” Moreover, Guideline 9 refers to provisions of the United States Code specifying that, in general, only one parent is eligible for the exemption. See generally 26 U.S.C. § 152. By default, that parent is the “custodial parent,” which federal law defines as the parent who has custody for the greater portion of the year. 26 U.S.C. § 152(e). However, federal law permits the “custodial parent” to sign a written release of the right to claim the child as a dependent in a particular tax year. 26 U.S.C. § 152(e)(2).

[17] Based on this portion of federal law, our guidelines specify that “the court cannot award an exemption,” but it “may order a parent to release or sign over the exemption” to the other parent, so long as the other parent has paid at least 95% of their court-ordered child support payment for the affected tax year. Child. Supp. G. 9. We have explained that “[t]he trial court's decision in these types of cases should be guided primarily by the goal of making the maximum amount of support available for the child.” In re Paternity of H.M.H., 691 N.E.2d at 1309. Moreover, Guideline 9 sets forth a framework for decision-making:

In determining when to order a release of exemptions, it is required that the following factors be considered:

(1) the value of the exemption at the marginal tax rate of each parent;

(2) the income of each parent;

(3) the age of the child(ren) and how long the exemption will be available;

(4) the percentage of the cost of supporting the child(ren) borne by each parent;

(5) the financial aid benefit for post-secondary education for the child(ren);

(6) the financial burden assumed by each parent under the property settlement in the case; and

(7) any other relevant factors, (including health insurance tax subsidies or tax penalties under the Affordable Care Act).

[18] In this case, Mother was the default recipient of the tax exemption because she was awarded the greater amount of parenting time with Child. At the hearing, the trial court asked Father “[his] request” regarding the exemption, and Father asked to alternate tax years. Tr. Vol. 2 p. 20. The court indicated that it would “come back to [Mother]” and ask the same question, but other issues emerged and the court did not do so. Id. Later, the court said Mother and Father would alternate years, specifying: “Mother will have the claim on odd number years, [F]ather to claim on even number years.” Id. at 32. However, the written order was inconsistent with the court's oral remarks, instead providing that “Mother w[ould] claim [Child] on odd-numbered taxable years and Father w[ould] claim [Child] on odd-numbered taxable years[.]” Appellant's App. Vol. 2 p. 39–40.

[19] On appeal, Mother points out that the written order is untenable because it purports to allow both parents to claim Child as a dependent in odd-numbered tax years. Mother also points out that the judgment seemed to result in an award of the exemption rather than an “order that Mother sign a waiver in order to allow Father to claim the dependency exemption.” Appellant's Br. p. 16. Due to the inconsistency between the court's remarks at the hearing and the written order—which addresses only odd-numbered tax years—we conclude that Mother identified prima facie error. We therefore reverse and remand with instructions to resolve the inconsistency in the allocation of the exemption. On remand, the trial court should consider the Guideline 9 factors and account for any need to execute waivers to give effect to the allocation of the exemption.

Conclusion

[20] Identifying prima facie error, we reverse and remand for the trial court to recalculate child support and ascertain any arrearage, ultimately entering a compliant order that resolves inconsistency in the allocation of the tax exemption. On remand, the trial court is free to hear additional evidence.

[21] Reversed and remanded.

FOOTNOTES

1.   A portion of this filing was provided in the Appendix and denominated “Receipts” in the Table of Contents. We were able to access the complete filing through the Odyssey case management system.

2.   We were not provided a transcript of this hearing, or a copy of any evidence admitted at the hearing. Therefore, it is unclear what type of evidence formed the basis for the calculation of Mother's expenses.

Foley, Judge.

Judges Vaidik and Weissmann concur. Vaidik, J. and Weissmann, J., concur.