PROVENZA v. SMITH (2026)

MEMORANDUM DECISION

Case Summary

[1] Valen D. Provenza, Jr. (“Father”), pro se, appeals the trial court's order on his motion to establish child support. Father raises several issues for our review, which we consolidate and restate as the following two issues:

1. Whether the trial court erred when it denied Father's request for judicial review.

2. Whether the court abused its discretion when it calculated the child support obligations.

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

Facts and Procedural History

[3] Father and Jacqueline K. Smith (“Mother”) have one child together, E.P. (“Child”), who was born on November 20, 2008. Mother initiated the underlying proceedings in 2013 when she filed a petition to establish child support. On July 31, the parties entered an agreed order pursuant to which Father would pay $45.00 per week in child support.

[4] Thereafter, on February 14, 2017, Mother filed a petition to modify child support. And, on November 20, Father filed a petition to establish parenting time. On December 1, the court ordered Father to have parenting time for a total of four hours per week. The court also ordered Mother to submit a calculation as to Father's child support arrearage, “giving credit for all confirmed payments except for the $2,000 tax reimbursement.” Appellant's App. Vol. 2 at 39. Then, on January 11, 2018, the court modified its December 2017 order and gave Father a total of ten hours per week in parenting time, found that Father owed an arrearage of $4,074.00 as of September 17, and ordered Father to pay $93.00 per week in child support via an income withholding order. The court also ordered Father to apply fifty percent of his tax return to the arrearage until it was paid in full.

[5] On August 30, 2024, Father filed a motion to modify custody. The court held a hearing on Father's motion on September 24. During that hearing, Father testified that Child had moved in with him on April 8 and that she had been there “continuously since then[.]” Tr. at 11. At the conclusion of the hearing, the court took the matter under advisement and ordered Father to continue to make his child support payments. The court rescheduled the hearing and asked the parties to bring copies of Child's school records to the next hearing. The court held another hearing on February 17, 2025. The parties did not provide a copy of the school records. The court again took the matter under advisement.

[6] On June 9, the court held another hearing. On June 10, the court issued an order modifying custody such that the parties shared joint legal custody but that Father had primary physical custody of Child. The court also set Father's arrearage at $9,562.30 but stayed his support obligation pending a hearing on child support and tax issues, which the court scheduled for July 15.

[7] At the July 15 hearing, the parties presented certain financial records, and the child support caseworker again calculated Father's child support arrearage at $9,562.30 by using April 8 as the date Child moved in with Father.¹ However, because Father presented only limited financial documents, the court concluded that it did not “have sufficient evidence for [it] to set a child support order” requiring Mother to pay support. Id. at 74. Following the hearing, the court adopted the arrearage and ordered Father to pay $70.00 per week toward the reduction of that arrearage.

[8] Thereafter, on August 18, Father filed a request to establish child support. Father alleged that Child had been residing with him and, as such, that Mother should pay child support. The court held a hearing on that petition on December 16. During the hearing, Father testified that he is self-employed, that his income varies, but that he believed he was going to earn “at least fifty (50) [thousand] or more” in 2025. Id. at 104.

[9] Following the hearing, the court issued its order on Father's motion, which was signed by the magistrate. In particular, the court found that Mother's weekly income was $1,170.24, that Father was self-employed, and that, based on Father's testimony, Father would make $50,000.00 in 2025. Accordingly, the court ordered Mother to pay $150 per week in child support beginning on December 19. The court then reiterated its finding regarding Father's arrearage and its order for Father to pay $70.00 per week toward that arrearage. The court also found that the “amounts owed to each other are not to be offset or reduced by the parties” or the prosecutor's office. Appellant's App. Vol. 2 at 31. And the court ordered Father to claim Child on his taxes for tax year 2025 and all subsequent odd years and Mother to claim Child on her taxes in 2026 and all subsequent even years.

[10] On December 29, Father filed a request for “judicial review of [the] Magistrate's order.” Id. at 47. The court denied Father's request for judicial review, finding that Indiana Code Section 33-23-5-8 “does not provide for judicial review of a magistrate's order” and that Indiana Code Section 33-23-5-8.5 provides that “orders entered by a full-time magistrate have the same force and effect as orders entered by a judge[.]” Id. at 34. This appeal ensued.

Discussion and Decision

[11] We first note that Father proceeds pro se. “It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so.” Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016) (internal citation omitted). “These consequences include waiver for failure to present cogent argument on appeal.” Id. at 984.

[12] Further, Mother has not filed an appellee's brief. When an appellee does not file a brief, our Court will not undertake the burden of developing arguments on that party's behalf. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Rather, we apply “a less stringent standard of review” and may reverse the trial court if the appellant establishes prima facie error. Id. Prima facie “means at first sight, on first appearance, or on the face of it.” Id.

Issue One: Judicial Review

[13] Father first contends that the court erred when it denied his motion for judicial review of the order signed by the magistrate. According to Father, the court “deprived [him] of his statutory right to a final judgment” signed by an elected judge. Appellant's Br. at 15.² But Father fails to acknowledge that Indiana Code Section 33-23-5-8.5 provides that, except as provided in Section 8, “a magistrate has the same powers as a judge.”³ As such, Father has not shown that reversal is warranted on this basis.

Issue Two: Child Support

[14] Father next contends that the trial court abused its discretion when it issued its order regarding child support. Decisions regarding child support generally rest within the trial court's sound discretion. Dore v. Dore, 782 N.E.2d 1015, 1018 (Ind. Ct. App. 2003). “We will reverse a trial court's decision in child support matters only for an abuse of discretion or if the trial court's determination is contrary to law.” Id. On appeal, Father raises several issues related to the court's child support order. We address each argument in turn.

[15] Retroactivity. Father first asserts that the court abused its discretion when it failed “to relate the support order back to April 8, 2024,” which is the date Child moved in with him. Appellant's Br. at 16. To the extent Father's argument is that the court failed to terminate his child support obligation on April 8, Father is incorrect. The record is clear that the caseworker calculated Father's arrearage only through the date Child moved in with him. See Tr. at 80 (stating that, “if we go back to when she really went with dad, but give mom credit for the weeks [Child] was with her,” Father's arrearage would be “$9,562.30.”). Thus, contrary to Father's arguments, his arrearage is not “mathematically impossible.” Appellant's Br. at 17.⁴

[16] To the extent Father contends that the court erred when it did not relate Mother's child support obligation back to April 8, 2024, but instead began her child support obligation on December 19, 2025, we must agree. “The general rule in Indiana is that retroactive modification of support payments is erroneous if the modification relates back to a date earlier than the filing of a petition to modify.” Becker v. Becker, 902 N.E.2d 818, 820 (Ind. 2009) (quotation marks omitted). However, there are two exceptions to that rule, one of which is relevant here.

[17] Retroactive modification of support is permitted when “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.” Whited v. Whited, 859 N.E.2d 657, 662 (Ind. 2007). Here, there is no dispute that Child, with Mother's permission, moved into Father's care full-time beginning on April 8, 2024. Thus, regardless of when Father filed his motion for child support, he has demonstrated prima facie error in the court's failure to modify Mother's child support obligation back to the date Father took custody.⁵

[18] However, Father also appears to assert that the trial court erred when it ordered that his arrearage could not be “offset” by Mother's child support obligations. Appellant's Br. at 17. We cannot agree. It is well settled that, “because the custodial parent acts in a fiduciary capacity when receiving child support payments, the payor cannot withhold support payments to offset a debt owed by the custodial parent to the payor.” Jenkins v. Jenkins, 567 N.E.2d 136, 140 (Ind. Ct. App. 1991). In other words, although the money is paid to the custodial parent, “that person is merely a conduit—the payor's obligation is to the child, not to the custodian.” Id. Accordingly, Mother's obligation is to Child, not to Father. Mother will not be able to withhold her payments in order to offset the debt owed to her by Father, and Father will not be able to reduce his debt to Mother by offsetting the amount Mother owes in child support. The court therefore did not err when it ordered that Father's arrearage could not be offset by Mother's obligations.

[19] Tax Exemptions. Father next asserts that the court erred by “forcing an alternating schedule” that alternates which parent can claim Child for tax purposes. Appellant's Br. at 22. Father also argues that the court erred when it allowed Mother to “hijack[ ]” the 2024 tax return and when it did not order Mother to amend her return because Child resided with Father for more than half of 2024. Id. at 23. Father relies on Indiana Child Support Guideline 9 to support his argument that “the custodial parent is presumed to receive the exemption.” Id. at 22.

[20] But contrary to Father's argument, Child Support Guideline 9 specifically states that the development of the guidelines “did not take into consideration the awarding of the income tax exemption. Instead, it is required [that] each case be reviewed on an individual basis and that a decision be made in the context of each case.” The guideline further provides that a “court is required to specify in a child support order which parent may claim the child(ren) as dependents for tax purposes.” Ind. Child Support Guideline 9.

[21] Here, the court clearly reviewed the facts of this case and determined that the parties should alternate years for claiming Child on tax returns. The court was well within its discretion to do so. The court was similarly within its discretion to not require Mother to amend her 2024 tax returns to remove her claim to Child. We affirm the trial court on this issue.

[22] Father's Income. Finally, Father contends that the court erred when it calculated his income based on “speculative verbal testimony” rather than “documented financial evidence already in the record” when it determined that his annual income was $50,000 for child support purposes. Appellant's Br. at 34. However, Father disregards the fact that he was the one who testified that he believed he would make $50,000 in 2025. Indeed, while Father submitted tax returns from prior years that showed a lower income, Father did not submit any documentation relevant to 2025 and, instead, testified that 2025 was a “whole lot better” than previous years and that he believed he would make “at least” $50,000. Tr. at 104. We cannot say that the trial court abused its discretion when it relied on Father's own testimony to determine his income in 2025.⁶

Conclusion

[23] The trial court did not err when it denied Father's request for judicial review because the magistrate's order had the same force and effect as an order entered by a judge. Further, the trial court did not err when it calculated Father's child support arrearage, determined that the child support debts could not be offset, allowed the parties to alternate claiming Child for income tax purposes, or determined Father's income. We therefore affirm those portions of the trial court's order. However, Father has shown prima facie error in the court's failure to modify Mother's child support obligation back to the date he took custody of Child. We therefore reverse the court's order setting Mother's arrearage at zero and remand with instructions for the court to set her obligation beginning April 8, 2024, and to recalculate her arrearage accordingly. [24] We affirm in part, reverse in part, and remand with instructions.

FOOTNOTES

1.   The caseworker testified that the amount would have been $11,205.30 if she had calculated the arrearage using August 30, 2024, the date Father filed his motion to modify custody, as the date of Child's change of residence.

2.   To support his argument, Father cites Indiana Code Section 33-23-5-8 for his proposition that he “followed the proper statutory procedure” for the request and Indiana Code Section 33-23-5-10 for the proposition that he “is entitled to a final determination and judicial review of a Magistrate's order by an elected Judge of the court.” Appellant's Br. at 15. However, neither statute supports Father's argument. Indiana Code Section 33-23-5-8 provides that a “magistrate does not have the power of judicial mandate.” And Indiana Code Section 33-23-5-10 states that a magistrate “is entitled to an annual salary equal to eighty percent (80%) of the salary of a judge[.]”

3.   Again, Section 8 provides that a magistrate does not have the power of a judicial mandate. Father makes no argument to explain how that exception may be relevant here. And we hold that it is not. See generally Price v. Ind. Dep't of Child Servs., 80 N.E.3d 170, 175 (Ind. 2017) (holding that judicial mandate is appropriate only when two elements are present: (1) the defendant bears an imperative legal duty to perform the ministerial act or function demanded and (2) the plaintiff has a clear legal right to compel the performance of that specific duty).

4.   Father briefly contends that the court failed to lower his arrearage by a $2,000 tax reimbursement he claims he “already rendered[.]” Appellant's Br. at 18. However, Father has not directed us to any location in the record, and we find none, to demonstrate that he either made that payment or that the payment constituted a child support payment. In addition, Father contends that the court failed to apply $840 in “conforming support contributions[.]” Id. at 19. Father is correct that he made several payments in 2024. See Appellant's App. Vol. 2 at 56. But some of those payments were made prior to Father taking custody of Child. As for those payments Father made after he obtained custody of Child, Father has not demonstrated that the caseworker did not already account for those payments when she calculated his arrearage.

5.   Accordingly, we need not address Father's argument that the court disregarded his earlier request for child support or that the court treated his earlier request as closed.

6.   Father briefly contends that Mother works only thirty-two hours per week and that the court failed to impute the remaining eight hours of a standard work week at minimum wage to Mother. See Appellant's Br. at 36. Father does not develop this argument further, and it is therefore waived. See Ind. Appellate Rule 46(A)(8)(a).

Bailey, Judge.

Brown, J., and Weissmann, J., concur.