MCGRAW v. WEH (2026)

MEMORANDUM DECISION

Case Summary

[1] In a paternity case brought by John Weh (“Father”), Merrick McGraw (“Mother”) appeals the trial court's order setting forth Father's child-support obligation and ordering Mother to pay Father's attorney's fees and half the cost of a parenting-time supervisor. Finding several errors in the trial court's order, we affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] Mother and Father have one child, G.M.-W. (“Child”), who was born in January 2023. Mother and Father's relationship ended shortly after Child's birth, after which Child lived with Mother. In May 2023, Father petitioned to establish paternity, custody, parenting time, and child support. Mother and Father participated in mediation in August and failed to reach a complete agreement but stipulated to their weekly gross incomes: $1,461.54 for Mother and $2,134.62 for Father. See Tr. pp. 83-84; Ex. 3. At the initial hearing later that month, Mother and Father agreed that Mother would retain primary physical custody of Child.

[3] In September, the trial court issued an order on the August hearing. The court did not award Father overnights with Child but established a six-month “ ‘phase in’ period” for his parenting time:

Father's parenting [time] will consist of three hours at a time on alternating Saturdays and Sundays, under the supervision of maternal grandmother, or, if Mother and Father can agree, supervision may be by any other person with practical experience in caring [for] an Infant- up to a child of 5 years. Father and Mother may agree as to the specific location for the Parenting Time, absent agreement, it will take place at maternal grandmother's home․ The Supervised Parenting [Time] arrangement shall be in effect for approximately six-months. The Court is having staff set a Review Hearing ․ [T]he parties are to appear and give argument or submit evidence as to if transition to expanded Parenting time in [an] age-appropriate manner, including over-nights is now appropriate.

Appellant's App. Vol. 2 p. 22. The court ordered Father to pay Mother $468 per week in child support and noted that “[i]n view of the Court's phase in period with no immediate overnights Father shall not receive an overnight credit toward Support.” Id. at 23.

[4] In January 2024, Father filed a “Petition for Modification of Parenting Time & Child Support” seeking overnight parenting time and an adjustment of his child-support obligation accordingly. Id. at 26. Father also requested unsupervised parenting time, claiming that supervision was “permitting Mother and maternal grandmother to micromanage his parenting time” and that Mother refused to agree to an alternate supervisor despite multiple requests. Id. The supervisor issue was resolved separately from the parenting-time and child-support issues. This resolution isn't part of the record on appeal, but at some point, Father hired a third-party supervisor, Alex Miller.

[5] Mother and Father participated in mediation again in July and reached a partial agreement on Father's parenting time, including that it would no longer be supervised and that Father would have overnight parenting time with Child on December 26 and 27. In their agreement, the parties noted that they were “requesting a final hearing date in January, 2025” and that “[n]either party waives any right to seek retroactive relief regarding child support related issues at the final hearing.” Id. at 32, 34. The agreement also noted that Father's wife was pregnant and due in late September 2024.

[6] The court held the final hearing in January 2025. At the outset, the parties agreed to a parenting-time schedule, so the only issue left for the hearing was child support. The agreed-upon schedule provided that Father would have overnight parenting time on alternating weekends beginning on February 1 as well as holidays and extended parenting time in accordance with the Indiana Parenting Time Guidelines. Father asked the court to reevaluate his child-support obligation, claiming that his income wasn't accurately represented at the August 2023 hearing. He submitted two child-support-obligation worksheets: a “corrected provisional child support worksheet” and a current worksheet. Tr. p. 14. Both worksheets listed a weekly gross income of $1,500.

[7] Father testified that he was self-employed and had owned his own tree-cutting business, Blue Ox Tree & Land, for three years. He explained that he started working for Heartland Tower Solutions in February 2023, and after that he did less work with Blue Ox. He “d[id] not” recall what his income from Heartland was in 2023, but his 1099 from Heartland for 2023 listed $78,050 in total compensation. Id. at 12. Father claimed that his Heartland income amounted to “roughly $1,500.00 pe[r] week,” which he said “doesn't include the losses of fuel and tools and consumables.” Id. at 13. Even though this amount didn't factor in Father's business expenses, he was “willing to concede to a weekly income of $1,500.00” for 2023 because of the “limited additional income” from Blue Ox in January and February 2023 before he started working for Heartland. Appellant's App. Vol. 2 p. 76. Father didn't specify the exact amount that he made from Blue Ox in January and February 2023 but acknowledged that he had a job for $9,000 that January. He also provided monthly bank statements from his Blue Ox account from June 2023 to February 2024 and highlighted the business expenses on the statements. Father said the statements included expenses from both Heartland and Blue Ox.

[8] By the time of the hearing, Father was no longer working for Heartland and was only doing work as Blue Ox. When asked to estimate his weekly gross income, he said “it's hard telling.” Tr. p. 17. His attorney asked if the $1,500 figure on his child-support worksheet was “a fair and accurate reflection” of his current weekly income, and Father answered, “I think that is pretty high, but ․” Id. at 18. He testified that he has “[a] lot of” business expenses, but “[e]very week's different. Some weeks it's zero and other weeks it's $15,000.00.” Id. at 18-19. When asked how many jobs he gets a week, he said, “I have no clue. Some weeks you get zero, some weeks you get four,” and “it'd be impossible to average it.” Id. at 29, 31. Father testified that his “total necessary business expenses for 2024” were “[a] lot,” but he “can't assign it a number.” Id. at 40. He acknowledged that he didn't know how much money Blue Ox made in 2024 but said that “if [he] was to guess [he] would assume it would be a lot less th[a]n what's on that ․ child support [work]sheet.” Id.

[9] Father explained that his parenting time was supervised for ten months and that Miller was the supervisor for a “[f]ew months.” Id. at 23. He testified that he paid Miller $75 an hour, which totaled $500 for each weekend he had parenting time, and that he didn't believe his behavior “had anything to do with the need to move to a private supervisor.” Id. at 56. Additionally, Father asked the court to order Mother to pay his attorney's fees, which exceeded $28,000.

[10] Mother presented her own evidence about Father's income and asked the court to use $2,500 as his weekly gross income instead of $1,500. Mother stipulated that her current weekly gross income was $2,500. While Father's child-support worksheet included a parenting-time credit for 96-100 annual overnights, Mother proposed a credit for 90 annual overnights “[b]ecause [Father] doesn't have ․ summer vacation yet.” Id. at 116. She asked the court to impose Father's new support obligation effective February 1, 2025, when his overnight parenting time would begin.

[11] Mother testified that she'd incurred over $25,000 in attorney's fees and asked the court for an award of $10,000 of those fees, claiming that Father “caused [her] to unnecessarily incur attorney's fees.” Id. at 119. She also asserted that Father's behavior was the reason Miller had to be hired as a parenting-time supervisor and that Father had also displayed poor behavior in front of Miller. When Mother gave an example of Father's poor behavior, which Miller had testified about at a prior hearing, Father objected on hearsay grounds. Mother then asked the trial court to take judicial notice of Miller's prior testimony, and the court did.

[12] In March, after the parties submitted proposed findings of fact and conclusions of law, the trial court issued a final order. The court adopted Father's child-support worksheets and imposed a retroactive obligation of $366 per week beginning on Child's birthdate in January 2023 “until the filing of his 04/11/24 Petition for Modification of Parenting Time & Child Support” and a current obligation of $239 per week “backdated to the date of Father's 04/11/24 Petition for Modification of Parenting Time & Child Support.”¹ Appellant's App. Vol. 2 p. 77. The current obligation was based on a weekly adjusted income of $1,402.40 (weekly gross income of $1,500 minus a $97.50 credit for Father's subsequent child) with a parenting-time credit for 98 annual overnights. Based on these figures, the court found that Father had overpaid $7,001 in support as of January 10, 2025 (the date of his last support payment) and abated his support for 29 weeks to reconcile the overpayment. Additionally, the court found that “Father was forced to obtain a third-party parenting supervisor” because of “the interference of Mother and her family during Father's phase-in parenting time” and ordered Mother to reimburse Father $2,500 for half of the cost of the supervisor. Id. at 78. The court also ordered Mother to pay Father's attorney $28,000 in fees but did not specify a basis for the award.

[13] Mother now appeals.

Discussion and Decision

[14] Mother contends that the final order contains multiple errors and therefore must be reversed. We will set aside the judgment in a paternity action only if it is clearly erroneous. Hurst v. Smith, 192 N.E.3d 233, 242 (Ind. Ct. App. 2022). Where, as here, a trial court has entered findings of fact and conclusions of law, we determine whether the evidence supports the findings and whether the findings support the judgment. Id. We do not reweigh the evidence or reassess witness credibility, and we view the evidence in the light most favorable to the judgment. Id. “A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made.” Id.

I. The trial court's child-support determination is clearly erroneous

A. Applicable Standard

[15] Mother argues that Father presented insufficient evidence to support the trial court's child-support determination. At the outset, we must determine whether the trial court's September 2023 order was provisional or final and thus whether Father was required to meet the standard for an initial support determination or a modification. Mother contends that the September 2023 order was final and therefore Father had to satisfy the requirements for modification of child support under Indiana Code section 31-16-8-1. Father argues that even though he titled his January 2024 petition a “Petition for Modification,” the September 2023 order was provisional and thus no final order had been issued, so he wasn't required to meet the standard for modification. We have recognized that a trial court may issue a provisional order in a paternity case. In re Paternity of M.R.A., 41 N.E.3d 287, 293 (Ind. Ct. App. 2015). “Provisional orders are temporary in nature and designed to maintain the status quo while issues are more fully developed.” Id. Final orders, on the other hand, dispose of all claims as to all parties. See In re Paternity of C.J.A., 12 N.E.3d 876 (Ind. 2014) (dismissing appeal after finding that trial court's provisional order wasn't a final judgment because it didn't dispose of all claims as to all parties).

[16] We agree with Father that the trial court's September 2023 order was provisional. In August 2023, the court held an “Initial Hearing” on Father's petition to establish paternity. Appellant's App. Vol. 2 p. 4 (Aug. 29, 2023 CCS entry). The court's September 2023 order is titled, “Order from August 29, 2023, Hearing.” Id. at 19 (capitalization omitted). In that order, the court established a temporary “ ‘phase in’ period” whereby Father's parenting time would be supervised and would not include overnights. The court noted that this period would last six months and that it would schedule a review hearing at which the parties could present argument about whether Father's parenting time should be expanded. These facts show that the court intended the September 2023 order to be temporary, not final. Cf. M.R.A., 41 N.E.3d at 293-94 (finding order to be final where there was no evidence “that it was intended to be a provisional agreement subject to further consideration” and trial court gave no indication that order “was provisional only or that it contemplated any future action with regard to the issues of custody, support, or parenting time”).

[17] Along the same lines, the record shows that the trial court's March 2025 order, not the September 2023 order, was the final order. After reaching a partial agreement through mediation, Mother and Father “request[ed] a final hearing,” and the agreement made clear that “[n]either party waive[d] any right to seek retroactive relief regarding child support related issues at the final hearing.” At the start of the January 2025 hearing, the trial court said, “[I]t's the final hearing on the paternity.” Tr. p. 4; see also Appellant's App. Vol. 2 p. 10 (Jan. 14, 2025 CCS entry) (“Hearing on Petition to Establish Paternity”). The court's March 2025 order is titled, “Findings of Fact, Conclusions of Law & Final Order.” Id. at 73 (capitalization omitted). And although the court cited the modification standard in its order, it also stated that the September 2023 order “was a provisional order, subject to revision at the final hearing” and that “[t]he provisional order was temporary and designed to maintain the status quo while issues were more fully developed.” Id. at 79. These facts establish that the March 2025 order—not the September 2023 order—was the final order. Thus, Father wasn't required to satisfy the standard for modification of child support. The applicable standard is that of an initial support determination. Cf. M.R.A., 41 N.E.3d at 295 (“The trial court therefore committed an error of law ․ by applying the initial determination standard ․ The trial court should have applied the modification standard ․”).

B. Father's Gross Income

[18] Mother first challenges the trial court's calculation of Father's income, claiming that Father presented insufficient evidence of his weekly gross income. When parents submit separate child-support worksheets to the court, “[e]ach party bears the burden of justifying the incomes used in his or her own worksheet.” In re Paternity of G.R.G., 829 N.E.2d 114, 119 (Ind. Ct. App. 2005). The Indiana Child Support Guidelines require that “[i]ncome statements of the parents shall be verified with documentation of both current and past income.” Ind. Child Support Guideline 3(B)(2). Parents who are self-employed may use receipts and expenses as documentation of their income. Id. As our Supreme Court has noted, “[c]alculating gross income for the self-employed presents unique problems and calls for careful review of expenses.” Young v. Young, 891 N.E.2d 1045, 1048-49 (Ind. 2008). Although trial courts have discretion in calculating the child-support obligation of a self-employed parent, the court must carefully review the facts and circumstances in making its determination. Id. at 1049.

2023 Income

[19] Father's corrected provisional child-support worksheet listed a weekly gross income of $1,500. Father asked the trial court to use this number to calculate his support obligation dating back to Child's birthdate in January 2023. The court found that Father's 2023 income “before deducting business expenses” was $78,050, or $1,500 per week, but used $1,500 as his weekly gross income “due to limited additional income from his business, Blue Ox Tree & Land, in January and February 2023.” Appellant's App. Vol. 2 p. 76.

[20] The evidence supports the trial court's determination that Father's weekly gross income was $1,500 in 2023. Father testified that he was self-employed through Blue Ox in January and February 2023 and then began working for Heartland Tower Solutions that February. Although he didn't have exact figures for Blue Ox's income or expenses for January and February 2023, he acknowledged that Blue Ox had a $9,000 job in January. Father's 1099 from Heartland showed $78,050 in compensation, or “roughly $1,500.00 pe[r] week,” which “doesn't include the losses of fuel and tools and consumables.” To illustrate these losses, Father submitted monthly bank statements from his business account from June to December 2023. He denoted the business expenses on each of the statements, which he said included expenses for both Blue Ox and Heartland. Based on this evidence, the trial court was within its discretion to find that Father's total compensation from Blue Ox and Heartland minus his business expenses amounted to a weekly gross income of $1,500 in 2023.

2024 Income

[21] Father also used $1,500 as his weekly gross income for 2024 and onward on his current support worksheet. Father failed to meet his burden of justifying this amount. Because he was no longer working for Heartland in 2024 and was working exclusively with Blue Ox, his 1099 from Heartland gives us no indication of his 2024 compensation. And Father didn't provide any documentation of his Blue Ox income for 2024 or any other time period. The only documentation he provided for 2024 was his bank statements from January and two weeks of February, on which he highlighted his business expenses. The statements show some deposits, but Father didn't highlight them or otherwise indicate that the deposits represented business revenue.

[22] In addition to the scarce documentation, Father's testimony doesn't support using $1,500 as his income for 2024 and beyond. During the final hearing, Father gave vague responses about his revenue and expenses while self-employed. He testified that “it's hard telling” his weekly gross income and that he didn't know how much Blue Ox earned or spent in 2024. He had “no clue” how many jobs he gets a week and said “it'd be impossible to average it.” Father testified that he has “[a] lot of” business expenses, but “[e]very week's different,” and he “can't assign it a number.” And when both his attorney and Mother's attorney asked him about the $1,500 figure on his current worksheet, Father didn't agree that this number accurately represented his weekly gross income. His attorney asked if $1,500 was “a fair and accurate reflection” of his current weekly income, and Father said he “think[s] that is pretty high.” And he told Mother's attorney that “if [he] was to guess [he] would assume” his income is “a lot less th[a]n what's on” the worksheet.

[23] Given the lack of evidence of Father's 2024 earnings and evidence of only six weeks of his business expenses, the trial court clearly erred in finding that Father's weekly gross income is $1,500. We therefore reverse this finding and remand for a redetermination of Father's income beginning in 2024 and a recalculation of his support obligation accordingly.

C. Parenting-Time and Subsequent-Child Credits

[24] Mother also argues that the trial court erred in its award of credits to Father for overnight parenting time and for his subsequent child. Indiana Child Support Guideline 6 allows a parent to receive a credit based on the number of overnights their child spends with them each year. And Guideline 3(C)(1) provides for a reduction to a parent's weekly gross income to account for any subsequent-born children.

[25] Here, the trial court set two child-support obligations for Father: a retroactive obligation of $366 per week from Child's birthdate in January 2023 “until the filing of [Father's] 04/11/24 Petition for Modification of Parenting Time & Child Support,” and a current obligation of $239 per week “backdated to the date of Father's 04/11/24 Petition for Modification of Parenting Time & Child Support,” which included credits for overnight parenting time and Father's subsequent child. On its face, this portion of the court's final order is clearly erroneous because Father filed his “Petition for Modification” on January 10, 2024, not on April 11, 2024. And as explained further below, the record does not support using April 11, 2024, as the date on which the parenting-time and subsequent-child credits would take effect because Father wasn't eligible for either credit as of then.

[26] The trial court credited Father with 98 overnights. In the August 2023 provisional order, the court implemented a six-month phase-in period for Father's parenting time with no overnights. When the parties participated in mediation in July 2024, they agreed that Father would have overnight parenting time with Child on December 26 and 27. Other than those two dates, the mediation agreement did not provide for any additional overnights—to the contrary, it stated that Father's parenting time would end at 6:00 p.m. each day. See Appellant's App. Vol. 2 p. 33. Although Father requested credit for 96-100 annual overnights at the final hearing and used that figure in his child-support-obligation worksheet, he didn't present any evidence that he'd exercised more than the two overnights permitted by the mediation agreement. Father claims the record supports credit for 98 overnights because Mother requested that Father be credited for a similar number of overnights (90) at the final hearing. But Mother asked the court to impose this credit effective February 1, 2025, the date Father's overnight parenting time would begin. See Tr. pp. 115-16. The record shows that Child spent only two overnights with Father in 2024. The Parenting Time Table in Child Support Guideline 6 illustrates that no credit is given for fewer than 52 annual overnights. Although Father may be entitled to parenting-time credit for 2025 because his overnights began on February 1, 2025, he was not eligible for the credit in 2024.

[27] As for the subsequent-child credit, the July 2024 mediation agreement noted that “Father's wife is pregnant and due at the end of September, 2024.” Appellant's App. Vol. 2 p. 33 n.1. Neither party gives us any reason to believe that Father's subsequent child wasn't born around this due date. So, assuming the child was born in September 2024, it was error for the trial court to reduce Father's income beginning on April 11, 2024, five months before the child was born. While Father is entitled to a reduction in his income for his subsequent child, the reduction must be applied beginning on that child's date of birth.

[28] The trial court clearly erred in awarding Father parenting-time and subsequent-child credits as of April 11, 2024. On remand, after determining Father's income for 2024 and onward, the court shall recalculate Father's support obligation with parenting-time credit beginning in 2025 in accordance with his number of annual overnights and a subsequent-child credit effective on the birthdate of his subsequent child. Based on the income redetermination and the new effective dates of the credits, the court shall also recalculate any overpayment by Father and abate his obligation accordingly.

II. The trial court did not err in ordering Mother to pay Father $2,500 for parenting-time supervisor fees

[29] Mother argues that the trial court erred in ordering her to pay Father for part of the parenting-time supervisor fees. The trial court found that “[d]ue to the interference of Mother and her family during Father's phase-in parenting time, Father was forced to obtain a third-party parenting supervisor” and paid “over $4,000.00 to exercise parenting time with [Child]”: “$75.00 per hour for eight (8), six-hour visits with the parenting time supervisor, plus $50 per visit for a written report, and $275.00 per hour for court/mediation preparation and appearances.” Appellant's App. Vol. 2 p. 78. Mother claims that Father failed to provide sufficient evidence to support this finding.² We cannot agree. Father testified that his parenting time was supervised by Miller for a “[f]ew months” and that he paid Miller $75 an hour, which totaled $500 per weekend. Although there is no evidence in the appellate record of Miller's fees for a written report or court/mediation preparation and appearances, Miller testified at an earlier hearing, and the trial court at the final hearing took judicial notice of Miller's prior testimony.

[30] As Father points out, Mother asked the trial court to take judicial notice of Miller's testimony from the prior hearing but did not include a transcript of that hearing in the record on appeal. He asks us to “infer that the trial court heard sufficient details [at that hearing] regarding the cost of third-party parenting time supervision to support” its finding. Appellee's Br. p. 33. As the appellant, Mother had the burden of showing that the trial court's fee determination was clearly erroneous. Because Mother did not provide us with a transcript of Miller's prior testimony, she cannot argue on appeal that there is insufficient evidence in the record to support the trial court's finding as to Miller's fees. See Ind. Appellate Rule 9(F)(5) (providing that the Notice of Appeal must designate “all portions of the Transcript necessary to present fairly and decide the issues on appeal”); Martinez v. State, 82 N.E.3d 261, 264 (Ind. Ct. App. 2017) (explaining that it is appellant's burden to provide the reviewing court with a complete record and that a failure to do so results in waiver), trans. denied. We therefore affirm the portion of the final order requiring Mother to reimburse Father $2,500 for her share of the supervisor fees.

III. The trial court's award of attorney's fees to Father was not reasonable

[31] Mother also claims the trial court erred in ordering her to pay Father's attorney's fees. We review a decision to award attorney's fees and the amount of any award for an abuse of discretion. Benefiel v. Stalker, 119 N.E.3d 1133, 1136 (Ind. Ct. App. 2019). In paternity actions, the trial court may order a party to pay “a reasonable amount for attorney's fees, including amounts for legal services provided and costs incurred, before the commencement of the proceedings or after entry of judgment.” Ind. Code § 31-14-18-2(a). “In making such an award, the court must consider the parties’ resources, their economic conditions, their respective earning abilities, and other factors that bear on the reasonableness of the award.” Benefiel, 119 N.E.3d at 1136. The court may also consider any misconduct by one party that causes the other to directly incur fees. Id.

[32] Here, Father incurred over $28,000 in attorney's fees, and Mother incurred over $25,000. The trial court ordered Mother to pay $28,000 to Father's attorney. Unlike with its supervisor-fee determination, the court gave no indication that it was ordering Mother to pay Father's attorney's fees due to any misconduct by Mother. And as explained above, because there was insufficient evidence of Father's income for 2024 and beyond, the court could not have properly considered the parties’ resources and economic conditions. We therefore reverse the court's award of attorney's fees and remand for reconsideration once Father's current income has been established.

[33] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   As addressed further in the discussion, Father filed his “Petition for Modification of Parenting Time & Child Support” on January 10, 2024, not April 11, 2024, so the use of the April date was error.

2.   Mother also argues that the trial court erred in ordering her to pay part of the parenting-time supervisor fees because she “played no role in the need for a third-party parenting supervisor.” Appellant's Br. p. 31. But this is a request for us to reassess witness credibility, which we cannot do. See Hurst, 192 N.E.3d at 242. Although Mother testified at the final hearing that Father's behavior was the reason a third-party supervisor had to be hired, Father said he didn't believe his behavior was the reason. After hearing the parties’ testimony, the trial court evidently believed Father.

Vaidik, Judge.

Mathias, J., and Pyle, J., concur.