PATON v. PATON (2025)

MEMORANDUM DECISION

Case Summary

[1] Robert Paton appeals following the trial court's denial of his motion to correct error in the trial court's child support order. His sole issue on appeal is whether the trial court erred in imputing $1,071.00 of weekly income to him. We affirm.

Facts and Procedural History

[2] In December 2021, Robert Paton (Father) filed a petition for dissolution of marriage against Michelle Paton (Mother). On November 8, 2023, the trial court entered a dissolution decree incorporating the parties’ partial mediated settlement agreement, which reserved resolution of child support. Therein, the parties agreed to joint legal custody of their four children, with primary physical custody for Father and parenting time for Mother according to the Indiana Parenting Time Guidelines. At the time the decree was entered, the children were aged sixteen, fourteen, thirteen, and ten years.

[3] On December 13, 2023, the court held a hearing on the remaining issues, including computation of child support with Mother as the obligor. Mother testified that during the marriage she was primarily a “stay-at-home mom.” Supp. Tr. Vol. II p. 41. The parties resided rent-free in a home on Father's family's farm, which Father's family owned. Mother began working full-time following the parties’ separation, and her income at the time of the hearing was $1,071.19 per week. Id. at 7.

[4] Father also worked less than full-time for the majority of the marriage. After Father earned a Master of Business Administration (MBA) degree in 2016, he was employed as an adjunct professor at Grace College; however, he was no longer employed as a professor at the time of the hearing. Father testified that a full-time Grace College professor with a master's degree would have an annual income “in the $40,000 range[.]” Id. at 47. In addition, Father did occasional physical work for his family's business including boat repair, property maintenance, cottage rental, boat sales, and other work his parents requested. Father testified that he was minimally paid for the work and the last payment he received was made about two years prior to the hearing.¹

[5] After the parties divorced, Father continued his work for the family business. For example, around the time of the hearing, Father cleaned up six fallen trees on the property and used a chainsaw to cut wood for about four hours. Father also provided care to his parents, including transportation to appointments. Between caring and working for his parents and transporting the children to their extracurriculars, Father testified that he has five to six hours per day that he could allocate to working another job. At the time, Father used his flexible hours running an e-commerce business selling goods on platforms like E-bay and consulting with other e-commerce sellers. Finally, Father testified that he was told he “had to ․ pause” his employment at Grace College because he was “in the middle of a divorce[ and] there might even be a period of three years after [the] divorce's conclusion before [Grace] would hire [him] again.” Id. at 57. Father continued to reside rent-free in the home owned by his family's business.

[6] Mother requested that the trial court impute an $80,000 annual income to Father based on his master's level education. Father requested the court impute an annual income of $25,000, in part because that was the most money he had earned in a year since 2016 and because of his responsibilities caring for his parents and the children. See id. at 71-72.

[7] The court then said to father, “[$]25,000 divided by [fifty-two] weeks comes out to [$]480 a week which is approximately [twelve dollars] an hour. You can make more than that at a fast food restaurant. Are you telling me that that's your maximum income?” Id. at 72. Father ultimately responded, “I hope not. I am going to try to make more and I'll submit a modification myself if I make more.” Id. at 73. Father's counsel, Ms. Kolbe, then sought Father's clarification as follows:

[Ms. Kolbe]. In preparation for today, you and I talked about the fact that the Court could look at the situation and say, hey, why don't you flip burgers at Culvers? That would provide you with more money than minimum wage and we ran the support at different levels of income for you.

[Father]. Mm-hmm.

[Ms. Kolbe]. That is something you've acknowledge[d] as within the scope of what the Court could do.

[Father]. Yes.

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[Ms. Kolbe]. You understand that the Court could exercise the Court's judgment and attribute you with income, given the — just general knowledge that we would have of what people could earn if they would work part-time at a fast food restaurant or in a retail position. Correct?

[Father]. Yes.

Id. at 73-74. The court took the matter of support under advisement, and the hearing adjourned.

[8] On February 9, 2024, the court issued a written order containing findings of fact and conclusions of law. In pertinent part, the court found:

17. Father has a Bachelor's degree and an MBA degree with a concentration in Information Technology.

18. Father testified that the most he has ever made is $25,000.00 per year ($12.02 per hour presuming 40 hours per week).

19. The Court finds it is common knowledge from driving the public highways in Warsaw, Indiana and throughout Kosciusko County that there are many job opportunities, including but not limited to, fast food positions where individuals without a high school education can earn substantially more than $12.02 an hour.

20. Father's 2022 tax returns showed “line 9” income of $16,434.00 ($7.90 per hour presuming 40 hours per week). After “line 12” deductions, his “line 15” taxable income equaled zero. Despite having no taxable income in 2022, Father received a refund in the amount of $6,898.00.

21. Father works at Patona Bay, his family's business, which includes boat sales, repairs and cottage rentals. It is located on Tippecanoe Lake in Kosciusko County.

22. Father reports receiving no income from his work at Patona Bay.

23. Father resides rent free at a house owned by the family business.

24. Father recently spent four hours in one day cutting fallen trees with a chainsaw on the family property for which he received no income.

25. Father also performs additional work for the family business and has not received any payment for work performed in approximately two years.

26. Mother testified that she believes Father could be earning $80,000.00 per year, given his advanced education.

27. In Father's Closing argument filed December 15, 2023, he asserts that he earns income through e-commerce sales and some consulting with other e-commerce sellers. There was insufficient evidence at trial indicating the amount of time spent or money earned in that endeavor.

28. Father acknowledged he was trying to earn the same income as Mother, and did not allege he was incapable of earning as much as Mother.

29. The Kosciusko Superior Court No. 4, working with the Title IV-D Office, is heavily involved in the establishment and enforcement of child support obligations. Accordingly, the Court has extensive knowledge of the prevailing job opportunities and earning levels in the community. Notwithstanding the same, should counsel wish the Court to consider additional evidence of prevailing job opportunities and earning levels in the community at any future hearing, counsel may do so.

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32. While it appears Father is not underemployed in a direct attempt to avoid paying support, the Court can impute potential income when avoidance of a support obligation is not the reason for the parent's underemployment, and the Court finds that action appropriate in this case.

33. As required by Indiana Child Support Guideline 3(A)(3), if the Court finds a parent to be voluntarily underemployed without just cause, child support shall be calculated based upon a determination of potential income.

34. The Court finds Father to be voluntarily underemployed without just cause.

35. For purpose of determining Father's potential income, the Court has considered Father's employment potential, probable earnings based upon his employment and earning history, occupational qualifications, educational attainment, literacy, age, health, prevailing job opportunities and earning levels in the community.

36. The Court does not impute income to Father for his free rent at this time.

37. The Court believes that Father has the ability to earn at least as much income as Mother is earning. For purposes of this Order, the Court finds Father's potential weekly average gross income equals $1,071.00.

App. Vol. II pp. 22-25. The trial court ultimately ordered child support fixed in the amount of $202.00 per week, payable by Mother, beginning on December 15, 2023.²

[9] Father filed a motion to correct error in March 2024 alleging, in part, that the court erred in imputing $1,071.00 of weekly income to him. A hearing was held on September 25 and October 24.³ The court denied Father's motion to correct error as to his imputed-income argument. The appeal ensued.

Discussion and Decision

I. Standard of Review

[10] Father appeals following the denial of his motion to correct error. We generally review a ruling on a motion to correct error for an abuse of discretion, which occurs when the trial court's decision is against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law. Coronado v. Coronado, 243 N.E.3d 1121, 1124 (Ind. Ct. App. 2024) (citation omitted). Our review of a ruling on a motion to correct error necessarily involves review of the court's underlying order. Id. (citation omitted). Here, the underlying order established a child support payment schedule, and the court entered findings and conclusions sua sponte.

[11] When a court enters findings and conclusions sua sponte, the “findings only control issues that they cover[.]” Walters v. Walters, 186 N.E.3d 1186, 1190 (Ind. Ct. App. 2022). Any findings that have been made will be set aside only if they are clearly erroneous. Id. “A finding is clearly erroneous if there are no facts in the record to support it, either directly or by inference.” Id. (citing Hickey v. Hickey, 111 N.E.3d 242, 245 (Ind. Ct. App. 2018)). “In conducting our review, we will not reweigh the evidence or reassess the credibility of the witnesses, and we will consider only that evidence and reasonable inferences that favor the judgment.” Id. “We will reverse decisions regarding a parent's underemployment and imputing potential income to that parent only for an abuse of the trial court's discretion.” Id. (citing In re Paternity of C.B., 112 N.E.3d 746, 761 (Ind. Ct. App. 2018), trans. denied).

II. Imputation of Income

[12] Father's sole challenge on appeal is that the trial court “improperly imputed income to [Father] at a level that had not been earned during the marriage.”⁴ Appellant's Br. p. 6. He alleges there was “no evidence to support the figure which the trial court imputed” and that the trial court's reliance on “seeing help wanted signs at fast food restaurants ․ and familiarity with wages from IV-D cases ․ is not a proper basis on which to impute income to [Father].” Id. Father contends he “was willing to have $25,000 imputed to him as a yearly income” and that figure should be used to calculate child support. Id.

[13] Insofar as Father challenges the findings regarding job opportunities and earnings at fast food restaurants (Finding 19) and the court's knowledge of the same from its Title IV-D work (Finding 29), we review for clear error. Findings 19 and 29 say:

19. The Court finds it is common knowledge from driving the public highways in Warsaw, Indiana and throughout Kosciusko County that there are many job opportunities, including but not limited to, fast food positions where individuals without a high school education can earn substantially more than $12.02 an hour.

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29. The Kosciusko Superior Court No. 4, working with the Title IV-D Office, is heavily involved in the establishment and enforcement of child support obligations. Accordingly, the Court has extensive knowledge of the prevailing job opportunities and earning levels in the community. Notwithstanding the same, should counsel wish the Court to consider additional evidence of prevailing job opportunities and earning levels in the community at any future hearing, counsel may do so.

App. Vol. II pp. 22-23.

[14] We cannot say these findings are not supported by evidence in the record. Father acknowledged that flipping burgers at Culvers “would provide [him] with more money than minimum wage” and agreed the court could consider that fact when determining how much income to impute to Father. Supp. Tr. Vol. II p. 73. Father further acknowledged that people have a “general knowledge ․ of what people could earn if they would work part-time at a fast food restaurant or in a retail position” and again agreed the court could consider that knowledge. Id. at 74. The trial court was not required to turn a blind eye to common knowledge about fast-food worker wages or that such job opportunities exist in the local community. See e.g., In re E.M., 4 N.E.3d 636, 646 (Ind. 2014) (where a parent argued the record lacked evidence that violence in the home would not be remedied, a trial court was not required to turn a blind eye to the statistical reality that abusers are at high risk to reoffend). Coupled with Father's acknowledgements about fast-food or retail worker wages, Findings 19 and 29 are sufficiently supported by evidence in the record and are not clearly erroneous.

[15] Father does not separately challenge the court's conclusion based on the findings that imputing income to him is appropriate. We therefore turn to whether the court abused its discretion in determining the amount of income to impute to him. “Trial courts are accorded great discretion in determining the amount of potential income to be imputed to a parent who is found to be underemployed.” Walters, 186 N.E.3d at 1192 (citing Child Supp. G. 3(A)(3), cmt. 2(c) (“Obviously, a great deal of discretion will have to be used in this determination.”)). To determine the amount of potential income to impute, the Child Support Guidelines provide:

If a court finds a parent is voluntarily unemployed or underemployed without just cause, 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 employment and earnings history, occupational qualifications, educational attainment, literacy, age, health, criminal record or other employment barriers, prevailing job opportunities, and earnings levels in the community.

Child Supp. G. 3(A)(3).

[16] Here, there is ample evidence in the record regarding these factors, and the trial court's findings reflect that it appropriately considered them. Father testified and the court found that Father attained a master's level education, had employment with his family business and through e-commerce ventures, and was capable of physical labor such as cutting down trees for several hours. The findings also reflect Father's prior earnings history based on his tax returns from 2022 and Father's testimony about his lack of earnings through his family business. The court also considered job opportunities in the community, such as fast-food positions that require even less education than what Father had attained, and earnings levels in the community based on those opportunities. The evidence supports the findings, and the findings clearly support the court's decision to impute income to Father.⁵

[17] Still, Father asserts the court should have imputed $25,000.00 in annual income to him, presumably so that Mother's child support obligation would increase. Father's contention that the court should have imputed less income to him based on the evidence is simply a request to reweigh the evidence, which we will not do. Walters, 186 N.E.3d at 1190. The trial court did not abuse its discretion when it imputed $1,071.00 of weekly income to Father.⁶

III. Conclusion

[18] Findings 19 and 29 are not clearly erroneous, and the trial court's decision to impute $1,071 of weekly income to Father was not an abuse of discretion. Therefore, the trial court did not abuse its discretion in denying Father's motion to correct error. We affirm.

[19] Affirmed.

FOOTNOTES

1.   The record does not indicate that Father is an owner of his family's business or that he generates any income therefrom.

2.   The court's February 2024 order originally fixed support at $56.00 per week, payable by the Mother; however, the support amount was updated to $202.00 per week by agreement of the parties and after the court corrected an error in calculation of Mother's parenting time.

3.   The court also heard argument on Father's contempt petition, which is not a subject of this appeal.

4.   Father does not challenge the court's decision to impute income to him in general; rather, he only challenges the amount imputed to him and the findings pertaining to earning levels in the community. Father also does not properly challenge the conclusion that he was voluntarily underemployed without just cause in his brief. In his reply brief, Father contends the “evidence in this case also provides no basis for the trial court concluding [Father] was underemployed[.]” Because he first raises this argument in his reply brief, it is waived for our review. See Ind. Appellate Rule 46(C).

5.   In addition, the trial court found that Father was living rent-free but decided not to consider the value of that in-kind earning in imputing his potential income. See Child. Supp. G. 3(A) (weekly gross income of the parent includes the value of in-kind benefits received by the parent). In his reply brief, Father contends that Mother's discussion of this issue in her brief is irrelevant. We note the trial court could have imputed even more income to Father based on this benefit, but it chose not to do so. Even so, we need not consider any argument about Father's potential in-kind income to reach our conclusion.

6.   Father also “respectfully submit[s] that it was improper to impute income to [Father] without” first determining whether Father reduced his income after or in contemplation of filing the dissolution. Appellant's Br. p. 10. Father does not point to any authority requiring such a threshold determination. He further asserts that our court's prior holdings that it is “proper to impute income when a parent is underemployed even though the underemployment is not for the purpose of avoiding child support” are “contrary to the purposes of child support.” Id. (citing Miller v. Miller, 72 N.E3d 952 (Ind. Ct. App. 2017); In re Paternity of Pickett, 44 N.E.3d 756 (Ind. Ct. App. 2015)). Father acknowledges that the Child Support Guidelines nevertheless allow a court to impute income to a parent if it finds the parent is voluntarily underemployed without just cause. He fails to present an argument supported by appropriate authorities to support his contention that our prior holdings are incorrect or to overcome the plain language of the Guidelines.

Scheele, Judge.

Foley, J., and Kenworthy, J., concur