ROSE v. ROSE (2026)

Case Summary

[1] In early 2025, Jesse Rose (Father), then unemployed, stipulated to a gross weekly income for purposes of calculating child support, which was based on the amount he had been earning before he lost his job two months prior. After approximately one year of unemployment, Father filed a petition to modify child support, which the trial court denied on the basis that Father had stipulated to the weekly income and that he was still unemployed such that there had been no change in circumstances to warrant modification. Father appeals and asserts that the denial was an abuse of discretion.

[2] We reverse and remand.

Facts & Procedural History

[3] Father and Natalie Rose (Mother) are the parents of one child (Child), born in September 2012.¹ Their marriage was dissolved in December 2020, and the parties agreed to share joint legal and physical custody of Child. The dissolution decree provided that Father's weekly child support obligation was $85 but that, rather than paying the weekly support, Father would pay all controlled expenses, uninsured health expenses, and extracurricular expenses. Father was also responsible for paying the health insurance premium for Child.

[4] On May 16, 2024, Father filed a motion to modify custody. Thereafter, on June 13, 2024, Mother filed a motion to modify child support. A hearing was held on these and other pending motions on January 24, 2025. Although Father had lost his job in November 2024, he stipulated at the hearing to a weekly gross income of $2,809.27 based on what he had been earning as a general manager (GM) of a distribution center, and Mother stipulated to a weekly gross income of $1,592.40.

[5] On February 21, 2025, the trial court issued an order that, using the stipulated income figures, determined Father's recommended weekly support obligation under the Indiana Child Support Guidelines (the Guidelines) to be $107. Due to retroactive modification, Father owed a $704 arrearage, which, along with his weekly support, was to be paid through the clerk's office. Mother was ordered to pay for controlled expenses, and Father would continue to maintain health insurance for Child.

[6] On April 23, 2025, Father filed a petition for modification of child support based on continued unemployment, and a hearing was held on May 23, 2025. On May 30, the trial court issued an order denying relief, which stated in part:

Pursuant to Indiana Code 31-16-8-1, to modify child support at this time, there must be a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. At the last hearing held January 24, 2025, the Parties stipulated to the values to be used to calculate child support. Father was represented by counsel and agreed to his stipulated income. Father argues that he did not anticipate being unemployed for this long, however, that was not a caveat to the child support order or stipulated, imputed income. Nothing has changed since that last hearing, and the Court can not then find Father's continued unemployment to be a substantial change in circumstances to modify child support[.]

Appendix at 20.

[7] On November 15, 2025, Father filed another petition for modification of child support, along with a motion for change of judge. Following transfer of the case, a hearing was held on February 2, 2026. Father was still unemployed at the time. He acknowledged that, in January 2025, he had stipulated to a weekly income of $2,809.27 based on what he had been earning until his termination in November 2024. Father explained that, when he made the stipulation, he believed he was “between jobs” and had the “capability of making” what he had been earning a few months prior. Transcript at 6. He testified that by April 2025, he realized that he was not having success in finding employment and thus sought to modify his support obligation, which was denied. After a year of unemployment, he filed the instant petition in November 2025. Id. Father testified that his only current income was VA disability at $2,440 per month, a figure that was subject to change in either direction, and that he was able to support himself and pay bills and obligations with the help of his wife. He was current on his $107 weekly child support obligation.

[8] Father testified that he has continued to search for employment “[v]irtually every day” on various platforms such as Indeed, LinkedIn, and ZipRecruiter. Id. at 7. Father described that he receives alerts about job openings and applies to the position if he has qualifying experience. He testified that he had gathered documentation showing that he had applied to 450 jobs, estimating that the actual number was over 500, and that he had had over 100 interviews.² Father was “extremely” surprised that he had not been able to find a job and testified that he had received little “actual, transparent feedback,” generally being told only that the employer was taking another direction and hiring another candidate. Id. at 9, 10

[9] Father stated that he no longer thought it was possible for him to earn what he had been earning as a GM in November 2024 – $145,600 per year. He testified, “The market I'm in is extremely tough” and “the only interviews I'm getting at this point” were for jobs two levels lower than his prior GM position, paying around $65,000 to $75,000 annually. Id. at 16, 32. Father's request was for the trial court to recalculate his income for child support purposes using a figure in that income range. He testified that he was not opposed to notifying Mother if he received a higher paying position and if Mother sought a support modification, he would not oppose it, even if less than one year had passed.

[10] On cross-examination, Mother elicited testimony about Father's $3,200 mortgage, of which he paid $1,100 and his wife paid the rest, and his $671 car loan payment. He testified that he had a personal checking account with a balance of a few hundred dollars, no savings account, and a 401(k) with $1,600 in it. An exhibit was admitted into evidence that his income was $169,000 in 2022, $133,000 in 2023, and $132,472 in 2024. Father agreed with the proposition that his VA disability pay be added to the $65,000-$75,000 income that he was asking the court to use in calculating child support, for a total of $104,000 per year.

[11] Mother testified that she was still at the same job as when she stipulated to her income and was earning about the same amount, with an exhibit showing that her 2025 income was $78,966. She asked the court to deny Father's petition and award her $3,360 in attorney's fees.

[12] The next day, the trial court issued an order denying Father's request for modification of support concluding that “[n]othing has changed since that last hearing, and the court can not [ ] find Father's continued unemployment to be a substantial change in circumstances[.]”³ Id. at 22. The court ordered Father to pay Mother's attorney's fees due to non-compliance with discovery and incurred in addressing Father's “repetitive motion.” Id. at 23. Father filed a motion for stay, which was granted. Father now appeals the denial of his petition to modify child support.

Discussion & Decision

[13] Ind. Code § 31-16-8-1 governs the modification of child support and provides, in relevant part, that modification may be made “upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable[.]”⁴ I.C. § 31-16-8-1(b)(1); Ind. Child Supp. Guideline 4. “When confronted with a petition to modify a support order, the trial court must consider the totality of the circumstances involved in order to ascertain whether [a] modification [i]s warranted.” Himes v. Himes, 57 N.E.3d 820, 828 (Ind. Ct. App. 2016), trans. denied. The party seeking modification bears the burden of establishing that the statutory requirements have been met. In re Paternity of A.B., 267 N.E.3d 510, 519 (Ind. Ct. App. 2025).

[14] “It is certainly true that appellate courts give considerable deference to the findings of the trial court in family law matters, including findings of ‘changed circumstances’ within the meaning of Indiana Code section 31-16-8-1.” MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). We review the denial of a petition to modify child support for clear error. Bogner v. Bogner, 29 N.E.3d 733, 738 n.2 (Ind. 2015) (“This Court has clarified that clear error, and not abuse of discretion, is the proper standard of review for support modification.”). Our Supreme Court has explained:

We recognize of course that trial courts must exercise judgment, particularly as to credibility of witnesses, and we defer to that judgment because the trial court views the evidence firsthand and we review a cold documentary record. Thus, to the extent credibility or inferences are to be drawn, we give the trial court's conclusions substantial weight. But to the extent a ruling is based on an error of law or is not supported by the evidence, it is reversible, and the trial court has no discretion to reach the wrong result.

MacLafferty, 829 N.E.2d at 941; Miller v. Sugden, 849 N.E.2d 758, 760 (Ind. Ct. App. 2006), trans. denied.

[15] In this case, Mother has not filed a brief. When an appellee fails to submit a brief, we do not undertake the burden of developing arguments for her. Abouhalkah v. Sharps, 795 N.E.2d 488, 490 (Ind. Ct. App. 2003). We apply a less stringent standard of review with respect to showings of reversible error, and we may reverse the trial court's decision if the appellant can establish prima facie error. Id. Prima facie error, in this context, is defined as “at first sight, on first appearance, or on the face of it.” Id. “Still, we are obligated to correctly apply the law to the facts in the record in order to determine whether reversal is required.” A.B., 267 N.E.3d at 518 (quoting Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind. Ct. App. 2014)).

[16] Here, the trial court denied modification on the ground that Father stipulated to his income in January 2025 while already unemployed, so “[n]othing ha[d] changed.” Appendix at 22. As Father points out, “[u]sing the trial court's rationale, ․ no amount of passage of time being unemployed would [ ] ever be considered a substantial change in circumstances.” Appellant's Brief at 15. We agree and find the trial court's determination inconsistent with the modification standard of I.C. § 31-16-8-1. While Father's unemployed status has not changed, we find that other circumstances existing when Father stipulated to using his GM-level income are relevant, but were not considered, in determining whether there has been a substantial and continuing change.

[17] A somewhat similar situation was presented to this court in In re Marriage of Kraft, 868 N.E.2d 1181, 1189 (Ind. Ct. App. 2007). There, the parties entered into a post-dissolution mediated agreement in May 2004 regarding, among other issues, child support. At that time, the father, John, was earning a base salary of $90,000 at Caldwell Energy Company. Because he anticipated that he would make significantly more due to a history of bonuses, he agreed to an annual income of $294,434.19, which was a three-year average of his past income with bonuses. After mediation, his company lost important contracts, and his income was significantly reduced. In October 2004, John unsuccessfully petitioned for modification, asserting a substantial and continuing change of circumstances.

[18] In February 2006, John filed another petition to modify child support, alleging that he was entitled to modification under both prongs of I.C. § 31-16-8-1. At the hearing, John testified that, following mediation, Caldwell Energy “pretty much folded” and that he had taken a job with Caldwell Tanks in 2005 and was earning $90,000 with no potential for bonuses. Id. at 1184. The trial court denied his petition. We reversed in a published opinion, finding that John showed a greater than twenty percent change in support and more than a year had passed. Relevant here, the court also recognized, as an alternative ground justifying modification, that when John agreed to the higher income at mediation, he had anticipated that his pay and large bonuses from Caldwell Energy would continue but that he had incurred a substantial decrease in his pay due to his loss of bonuses, and therefore his petition for modification “should have been granted because he established ‘a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.’ ” Id. at 1189.

[19] Similar to Kraft, Father's January 2025 stipulated income figure was based on anticipated income – a seemingly reasonable expectation at the time – but which did not materialize. The record reflects that when Father stipulated to the GM-level income, he was recently unemployed by two or three months, still receiving unemployment pay, and hopeful about obtaining comparable employment. By the time of his November 2025 petition, however, his job searching efforts had extended to about a year, and longer by the time of the February 2, 2026 hearing. According to Father's uncontradicted testimony, his only income was VA disability pay, he had applied to more than 450 jobs, his field was competitive, and he did not anticipate being unemployed for so long. Father testified that given the market and his lack of success, he had to “lower [his] target” to positions paying between $65,000-$75,000 – or about $70,000 less than he had been earning. Transcript at 16.

[20] We recognize that the trial court was not required to believe Father and that most of his job-search documentation was excluded as untimely, but the trial court did not deny modification on credibility grounds; its decision was based solely on the prior stipulation and continuing unemployment as not rising to the requisite change in circumstances. We find that Father has made a prima facie showing of a substantial and continuing change in circumstances from those that existed at the time that he stipulated to a weekly income.

[21] We have recognized that if “a trial court is convinced that a parent's unemployment or underemployment has been manufactured solely to evade child support, the Guidelines give the trial court wide discretion to impute potential income to that parent.” In re Guardianship of R.M.M., 901 N.E.2d 586, 589 n.1 (Ind. Ct. App. 2009); see also Child Supp. G. 3(A)(3) (“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.”). While the trial court here did not make any finding of voluntary unemployment or underemployment, Father agreed below to the imputation of potential income to him for purposes of calculating child support.

[22] Child Supp. G. 3(A)(3) (Guideline 3) directs that “[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.” (Emphasis added). The Commentary to Guideline 3 provides that when a parent has some history of working and is capable of entering the work force, “but without just cause voluntarily fails or refuses to work or to be employed in a capacity in keeping with his or her capabilities,” the amount to be attributed as potential income “may be the amount that the evidence demonstrates he or she was capable of earning in the past,” adding that “[d]iscretion must be exercised on an individual case basis[.]” Child Supp. G. 3(A), cmt.c(2).

[23] When a parent is unemployed by reason of job termination, as was the original cause for Father's unemployment here, the Commentary states:

(4) ․ If the involuntary layoff can be reasonably expected to be brief, potential income should be used at or near that parent's historical earning level. If the involuntary layoff will be extensive in duration, potential income may be determined based upon such factors as the parent's unemployment compensation, job capabilities, education and whether other employment is available. Potential income equivalent to the federal minimum wage may be attributed to that parent.

Id. at cmt. c(4).

[24] Father asks us to reverse the court's February 2026 order denying his petition and remand with instructions to “use Father's actual current income in the calculations.” Appellant's Brief at 19. We agree that remand is warranted but decline to make any determination as to potential income. Rather, we remand with instructions for the trial court to make that determination by considering the factors enumerated in Guideline 3 and its Commentary.⁵

[25] Concluding that Father has demonstrated prima facie error as to the trial court's denial of his petition to modify child support, we reverse and remand for a determination of potential income to attribute to Father.⁶

[26] Judgment reversed and remanded.

FOOTNOTES

1.   Mother has an older son, and Father has two subsequent children.

2.   Father offered exhibits pertaining to applications he had submitted on the several platforms or emails setting up interviews, but the documents were excluded by the court as not having been timely produced to Mother in discovery or in sufficient time prior to the hearing.

3.   The pertinent paragraph of the order is identical to the May 30, 2025 order set out above other than substitution of the dates of the current petition and hearing.

4.   While I.C. § 31-16-8-1(b)(2) provides another ground for modification, upon a showing that the current order differs by more than twenty percent from the Guideline amount and the order was issued at least twelve months before the petition was filed, Father does not argue for modification under this portion of the statute.

5.   Along with considering the evidence presented at the February 2, 2026 hearing, the court may receive additional evidence as it deems necessary.

6.   We note that, generally, the trial court has the discretionary power to make a modification for child support to relate back to the date the petition to modify is filed or any date thereafter chosen by the trial court. Hatmaker v. Hatmaker, 998 N.E.2d 758, 763 (Ind. Ct. App. 2013).

Altice, Judge.

Vaidik, J. and Foley, J., concur.