JOHNSON v. JOHNSON (2024)

MEMORANDUM DECISION

[1] Savannah Johnson (“Mother”) appeals the Marion Superior Court's order modifying Ramon Johnson's (“Father's”) obligation to pay child support for the parties’ two minor children (“Children”). Mother presents three issues for our review:

1. Whether the dissolution court abused its discretion when it modified Father's child support obligation retroactive to a date prior to his petition to modify child support.

2. Whether the dissolution court abused its discretion when it calculated Father's current child support arrearage.

3. Whether the dissolution court abused its discretion when it gave Mother no credit for her legal obligation to support a prior-born child.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] Mother and Father (collectively, “Parents”) were married and have two children together: A.R., born June 18, 2013, and A.X., born January 31, 2017. Parents divorced in January 2019. In the final decree, the dissolution court adopted Parents’ settlement agreement, which provided that Parents would have joint legal custody of the Children, with Mother having primary physical custody of the Children and Father exercising parenting time. The decree also established Father's child support obligation at $407 per week, plus $15 per week towards an arrearage of $10,972.

[4] In March 2022, the dissolution court adopted Parents’ agreed entry. Parents agreed that Father would pay $447 per week, including $407 in child support plus $40 per week “towards his established arrearage.” Appellant's App. Vol. 2, p. 53.

[5] In December, Father lost his job. Accordingly, on February 10, 2023, Father filed a petition to modify his child support obligation. In March, Mother filed a petition seeking sole legal custody of the Children. Following a hearing on those petitions, on March 6, 2024, the dissolution court issued an order supported by findings and conclusions. The court granted Father's petition to modify child support and denied Mother's petition to modify legal custody of the Children.

[6] In relevant part, the dissolution court found and concluded:

3. The parties entered a verbal agreement pursuant to which Mother waived or forgave Father's child support obligation for two periods of time during the Covid-19 pandemic: February, 2020 through April, 2020 for a period of 8 weeks and September, 2020 through March, 2021 for a period of 26 weeks. During these two periods of time the parties were cohabitating and/or Father was providing daily care for the children and/or parties were attempting to reconcile and/or Father was unemployed.

4. Father accepted a job in Virginia in March 2021 with IBEX. He was a site director and earned over $100,000.00 per year with IBEX.

5. On or about 3/7/22, the Court modified the original decree and approved the parties[’] Agreed Entry regarding modification (hereinafter “Modification Order”). Father's child support obligation was increased to a total of $447.00 weekly (the prior $422.00 per week, plus an additional $25.00 toward “established arrears.”) Pursuant to the Modification Order, 10% of all of Father's bonuses through employment were to be applied toward the arrearage, however, no arrearage amount was established by the parties or the Court in the Modification Order․

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MODIFICATION OF CHILD SUPPORT

8. The Court finds that a substantial and continuing change of circumstances exists and that it is in the best interests of the Children to modify the current child support order and determine a child support arrearage.

9. In December 2022, Father's position at IBEX was terminated. Father received a severance package of approximately $15,000.00 and returned to live in Indianapolis in February 2023.

10. Father was unemployed between December 2022 when he was terminated from IBEX until on or about 7/5/23 when he began working at Bassett Heating and Cooling as a team manager. Father worked at Bassett from approximately 7/5/23 until 1/16/24 and earned $1,057.69 weekly.

11. Father is currently unemployed․

12. Father has made diligent efforts to secure employment, utilizing platforms such as Indeed and LinkedIn. He has not been voluntarily unemployed or underemployed to evade child support․

13. Mother proposes that the Court impute Father's income at $1,507.69 weekly during his periods of unemployment in 2023 and 2024 while Father proposes that the Court impute Father's income at $290.00 during his period of unemployment in 2023 and 2024. The Court rejects both proposals and, noting that no evidence was presented as discussed in paragraph 8 above, imputes Father's income at $750.00 weekly during his periods of unemployment. The Court finds this amount, which would equate to $18.75 per hour, to be reasonable based on Father's education and work experience.

14. Mother earned approximately $230,000.00 in 2023 and had an average weekly income of $4,423.00 in 2023 ($230,000.00 divided by 52)․

15. Mother has an older child who resides in her care who is 17 years old. Mother and that child's father support the child and the child divides time fairly equally between their homes. The child's father is ordered to pay $107.00 weekly to Mother in child support, however, Mother permits the child's father to keep the child support card, so she does not collect the support. Neither party offered additional evidence regarding the costs of Mother's support for this child and the Court does not credit Mother with a legal duty obligation for this child in its child support calculations.

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18. Between 1/24/[1]9 and 3/7/22, Father owed $68,364.00 in child support ($422.00 x 162 weeks). Pursuant to the verbal agreement discussed in paragraph 3 above, however, Mother waived or forgave a total of 34 weeks of Father's obligation in 2020 and 2021 or a total of $14,348.00 ($422.00 x 34 weeks). His total child support owed in this time period therefore is $54,016.00 ($68,364.00 - $14,348.00).

19. On 3/7/22, Father was ordered to pay $447.00 weekly toward both his obligation and the “established arrearage,” which as discussed in paragraph 5 above, was never established. Between 3/7/22 and 2/10/23, the date of the filing of his Petition to Modify Child Support, Father owned [sic] $21,456.00 in child support ($447.00 x 48 weeks).

20. Father's total child support obligation between 1/24/19 and 2/10/23 is $86,444.00 ($10,972.00 + $54,016.00 + $21,456.00).

21. Father's child support modification shall be retroactive to the date of the filing of his Petition to Modify. The Court has prepared child support obligation worksheets, attached and incorporated herein for the following time periods: Worksheet 1 for 2/10/23 through 7/4/23 wherein Father's weekly obligation is $90.00; Worksheet 2 for 7/5/23 through 12/31/23 wherein Father's weekly obligation is $208.00; Worksheet 3 for 1/1/24 through 1/16/24 wherein Father's weekly obligation is $245.00; Worksheet 4 for 1/17/24 – 2/20/24 wherein Father's weekly obligation is $119.00; and Worksheet 5 for the child support obligation which will become effective as of 2/21/24 wherein Father's weekly obligation is $18.00.

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25. As of 2/20/24, Father's total child support obligation was $94,827 ($86,444 [the total obligation between 1/24/19 and 2/10/23] + $8383 [the total obligation between 2/10/23 and 2/20/24]). Between 1/24/19 and 2/20/24, Father paid a total of $51,556.78. His total child support arrearage between 1/24/19 and 2/20/24 is established at $43,270.22.

26. Effective 2/21/24, Father's child support obligation is $18 weekly. Father shall pay an additional $107 weekly toward the arrearage for a total obligation of $125 weekly while he remains unemployed․

Id. at 18-23 (emphases added). Father filed a motion to reconsider, which the dissolution court granted. In its order granting that motion, the dissolution court corrected errors in the court's original order regarding Father's income, child support obligation,¹ and arrearage, which the court established at $41,360.22. This appeal ensued.

Discussion and Decision

Standard of Review

[7] Mother appeals the dissolution court's order, which includes findings and conclusions, following an evidentiary hearing. Our standard of review is well settled:

Pursuant to Indiana Trial Rule 52(A), the reviewing court will “not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” D.C. v. J.A.C., 977 N.E.2d 951, 953 (Ind. 2012) (internal quotation and citations omitted)․

Additionally, there is a well-established preference in Indiana “for granting latitude and deference to our trial judges in family law matters.” In re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993). Appellate courts “are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). “On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal.” Id. “Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (citations omitted).

Steele-Giri v. Steele, 51 N.E.3d 119, 123-24 (Ind. 2016).

[8] Also, we note that Father has not filed an appellee's brief.

When an appellee fails to file a brief, we apply a less stringent standard of review. We are under no obligation to undertake the burden of developing an argument for the appellee. We may, therefore, reverse the trial court if the appellant establishes prima facie error. “Prima facie” is defined as “at first sight, on first appearance, or on the face of it.”

Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind. Ct. App. 2006) (citations omitted).

Issue One: Retroactive Modification of Father's Child Support Obligation

[9] Mother first contends that the dissolution court abused its discretion when it modified Father's child support obligation for time periods that preceded his petition to modify that obligation. As our Supreme Court observed in Whited v. Whited, 859 N.E.2d 657, 661 (Ind. 2007), “[f]or at least seventy-five years, Indiana has held that after support obligations have accrued, a court may not retroactively reduce or eliminate such obligations.” There are two “narrow exceptions” to the rule against retroactive modification of a child support obligation. Id. at 662.

Retroactive modification is permitted when: (1) the parties have agreed to and carried out an alternative method of payment which substantially complies with the spirit of the decree, or (2) the obligated parent takes the child into his or her home, assumes custody, provides necessities, and exercises parental control for such a period of time that a permanent change of custody is exercised.

Id.

[10] Here, Father filed his petition to modify his child support obligation on February 10, 2023. Mother acknowledges that the dissolution court had discretion to modify Father's obligation retroactively to that date. But the dissolution court also found that Mother had “waived or forg[iven]” Father's child support obligation for two periods of time during the COVID-19 pandemic, namely February through April 2020 and September 2020 through March 2021. Appellant's App. Vol. 2, p. 18. And the dissolution court retroactively calculated Father's child support obligation for those time periods to be zero. In support, the dissolution court noted that, “[d]uring these two periods of time the parties were cohabitating and/or Father was providing daily care for the children and/or [the] parties were attempting to reconcile and/or Father was unemployed.” Id.

[11] As our Supreme Court has explained,

[i]n keeping with [the public policy of protecting the welfare of children], Indiana courts have from time to time voided agreements reached by parents. Agreements which yield up a support opportunity for a child have been especially suspect. We have treated custodial parents who receive child support as trustees of the payments for the use and the benefit of the child. Neither parent has the right to contract away these support benefits. The right to the support lies exclusively with the child.

Straub v. B.M.T., 645 N.E.2d 597, 599 (Ind. 1994) (emphasis added, citations omitted).

[12] We agree with Mother that the dissolution court abused its discretion when it retroactively modified Father's child support obligation for February through April 2020 and September 2020 through March 2021. Neither of the narrow exceptions to the general rule prohibiting retroactive modification applies here. And Mother's waiver of Father's obligation had no legal effect. Accordingly, we remand to the dissolution court with instructions to recalculate Father's child support arrearage to include those two periods of time at his then-established rate of $407 per week.

Issue Two: Father's Child Support Arrearage

[13] Mother next contends that the dissolution court erred when it calculated Father's total child support arrearage. The court found that Father's total child support arrearage between January 24, 2019, and February 20, 2024, is established at $41,360.22. Appellant's App. Vol. 2, p. 76. But in arriving at that amount, the dissolution court miscalculated Father's obligation owing during the COVID-19 pandemic, as discussed above. Accordingly, on remand, the dissolution court shall recalculate Father's total child support arrearage using the correct totals.²

Issue Three: Prior-born Child Credit

[14] Finally, Mother contends that the dissolution court abused its discretion when it did not give her any credit on its child support worksheet for her legal duty to support her prior-born child. Again, the court found that

Mother has an older child who resides in her care who is 17 years old. Mother and that child's father support the child and the child divides time fairly equally between their homes. The child's father is ordered to pay $107.00 weekly to Mother in child support, however, Mother permits the child's father to keep the child support card, so she does not collect the support. Neither party offered additional evidence regarding the costs of Mother's support for this child and the Court does not credit Mother with a legal duty obligation for this child in its child support calculations.

Appellant's App. Vol. 2, pp. 20-21.

[15] Indiana Child Support Guideline 3(C)(3) provides:

Where a party has a legal duty to financially support children born prior to the child(ren) for whom support is being established and no court order exists, an amount reasonably necessary for such support actually paid, or funds actually spent shall be deducted from weekly gross income to arrive at weekly adjusted income.

[16] Mother argues that she testified regarding how much time her prior-born child spends at her house, and she maintains that she “calculated her legal duty in accordance” with Guideline 3(C)(3). Appellant's Br. at 13. However, in support of that contention, she cites her Exhibit 2, which is an unsigned child support worksheet showing “0” on the line entitled “Child Support Duty for prior born.” Moreover, Mother does not direct us to any evidence that she presented to show “support actually paid, or funds actually spent” on her prior-born child. Child Supp. G. 3(C)(3). Accordingly, Mother has not shown an abuse of discretion on this issue.

Conclusion

[17] For all these reasons, we affirm the dissolution court's order that Mother receives no credit for her legal duty to support her prior-born child. However, we reverse the dissolution court's modification of Father's child support obligation that existed prior to the date he filed his petition for modification and remand for the court to recalculate his child support obligation. We also reverse the dissolution court's calculation of Father's child support arrearage and remand for a recalculation of that arrearage.

[18] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   The dissolution court had erroneously calculated Father's child support obligation using $422 per week rather than $407 per week.

2.   Mother argues that the dissolution court erroneously “abolished” the $10,972 arrearage that the court had established in the original dissolution decree. Appellant's Br. at 11. But in paragraph 20 of the order on appeal, the court includes that amount in its calculation of “Father's total child support obligation between 1/24/19 and 2/10/23[.]” Appellant's App. Vol. 2, p. 21. Accordingly, Mother has not established error on that issue. In any event, on remand, the trial court shall include the original $10,972 arrearage amount in its recalculation of Father's total arrearage now owing.

Mathias, Judge.

Brown, J., and Kenworthy, J., concur.