Robert Paul Harris, III v. Melanie Harris (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
08/31/2017, 9:33 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Richard A. Mann Eric Sommers
Lisa M. Joachim Indianapolis, Indiana
Mann Law, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Paul Harris, III, August 31, 2017
Appellant-Petitioner, Court of Appeals Case No.
32A01-1702-DR-302
v. Appeal from the Hendricks
Superior Court
Melanie Harris,
The Honorable Mark A. Smith,
Appellee-Respondent. Judge
Trial Court Cause No.
32D04-0710-DR-118
Barnes, Judge.
Case Summary
[1] Robert Paul Harris, III, (“Father”) appeals the trial court’s denial of his request
for modification of a child support order. We reverse and remand.
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Issue
[2] Father raises one issue, which we restate as whether the trial court properly
imputed income to him and denied his request for modification of child
support.
Facts
[3] Father and Melanie Harris (“Mother”) were married in 2000 and had three
children. When they divorced in 2009, Father was ordered to pay $362.00 per
week in child support. At that time, Father was working as an airline pilot.
[4] On October 2, 2016, Father was arrested for operating a vehicle while
intoxicated, and he was fired from his job. Father learned that, to resume flying
as an airline pilot, he would have to pass a medical evaluation, see a
psychiatrist, and provide the FAA with his police reports and court records.
Father found temporary employment at a Wal-Mart warehouse making $361.00
a week, and he began working on December 9, 2016.
[5] On December 21, 2016, Father filed a petition to modify his child support
obligation as a result of his lower income. On January 4, 2017, Father pled
guilty to Class A misdemeanor operating a vehicle while intoxicated, and he
was sentenced to 361 days of probation. The trial court held an evidentiary
hearing on the child support modification petition on January 13, 2017. The
trial court entered findings of fact and conclusions thereon as follows:
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6. The evidence established that [Father] was earning weekly
gross income of $1,712.00, or approximately $89,000/yr at
the time of the Decree.
7. [Father] is now earning $361.00 per week as a result of
losing his job. The evidence established that [Father] was
employed full time as a pilot with Republic Airways but
was terminated on October 2, 2016 by his employer as a
result of an operating while intoxicated charge. [Father]
subsequently pled guilty on January 4, 2017 under case
number 32D02-1610-CM-1510.
8. [Mother] was earning $460.00 per week at the time of the
Decree, or approximately $23,920/yr. Currently, [Mother]
works full-time and earns approximately $38,000/yr or
$73l/week.
9. [Mother] provides health insurance for the minor children
at a weekly cost of $22.00. This is another substantial
change since the Decree in that [Father] was previously
providing health insurance.
10. The evidence established that [Father] does not spend
more than 76 overnights per year with the minor children.
11. Based upon the foregoing, the Court finds and orders:
a. [Father’s] request to modify his support based upon
a weekly gross income of $361.00 is denied.
[Father’s] reduction in income was as a result of a
personal choice on his part to drink and drive.
[Father] failed to demonstrate what reductions in
personal expenses he has undertaken. Specifically,
the evidence established that he continues to pay a
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monthly mortgage of $1,300.00 despite a reduction
in income. Moreover, [Father] testified that it
remains possible for him to work as a pilot again in
the future after he completes several requirements
which he has not fulfilled at this time;
b. While [Father’s] support should not be reduced
based upon his personal choice to drink and drive,
there have been other circumstances that have
changed and that the Court considered for purposes
of a modification. For example, [Mother’s] income
has increased; she has been paying the cost of health
insurance; and, [Father’s] overnight parenting time
credit has decreased. Considering these changed
circumstances, the new recommended weekly child
support obligation is $343.00 per week. (Exhibit A).
However, this is a change of only $19.00 per week
and less than the 20% reduction threshold set forth
in Ind. Code 31-16-8-1(b)(2);
c. Even calculating support based upon an increase in
[Father’s] annual income to $100,000.00, taking
into account all the other changes, the
recommended support obligation only changes to
$366.00 (Exhibit B), an increase of $4.00 per week
which is also less than 20%;
d. Based upon the foregoing, the Court finds that the
current support order is not an unreasonable order.
[Father’s] request to modify child support is
denied[.]
Appellant’s App. Vol. II pp. 33-34. Father now appeals.
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Analysis
[6] Father challenges the trial court’s denial of his motion for a modification of
child support. The trial court entered findings of fact and conclusions thereon
sua sponte. Sua sponte findings only control issues that they cover, while a
general judgment standard applies to issues upon which there are no findings.
In re Paternity of Pickett, 44 N.E.3d 756, 762 (Ind. Ct. App. 2015). We may
affirm a general judgment with findings on any legal theory supported by the
evidence. Id. As for any findings that have been made, they 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.[7] Under Indiana Code Section 31-16-8-1, a child support order may be modified
only:
(1) upon a showing of changed circumstances so substantial
and continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child
support that differs by more than twenty percent
(20%) from the amount that would be ordered by
applying the child support guidelines; and
(B) the order requested to be modified or revoked was
issued at least twelve (12) months before the petition
requesting modification was filed.
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[8] The trial court here found no showing of changed circumstances so substantial
and continuing as to make the terms unreasonable or a showing of a twenty-
percent difference. Father argues that the trial court erred in calculating his
weekly gross income because the trial court imputed income to him rather than
using his actual income. The Indiana 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 work history, occupational qualifications, prevailing job
opportunities, and earnings levels in the community.
Ind. Child Support Guideline 3(A)(3). A trial court has wide discretion to
impute income to ensure the child support obligor does not evade his or her
support obligation. Pickett, 44 N.E.3d at 766.
[9] Father argues that the trial court’s imputation of income to him is clearly
erroneous based on Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007), and In re
Paternity of E.C., 896 N.E.2d 923 (Ind. Ct. App. 2008). In Lambert, our supreme
court held that “incarceration does not relieve parents of their child support
obligations.” Lambert, 861 N.E.2d at 1177. “On the other hand, in determining
support orders, courts should not impute potential income to an imprisoned
parent based on pre-incarceration wages or other employment-related income,
but should rather calculate support based on the actual income and assets
available to the parent.” Id.; see also Clark v. Clark, 902 N.E.2d 813 (Ind. 2009)
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(holding that incarceration can be a substantial change in circumstances that
would warrant a modification of child support). Similarly, in E.C., the trial
court imputed income to an incarcerated parent, and we reversed for the trial
court to determine whether the parent had other income or assets available to
satisfy his child support obligation during his incarceration. E.C., 896 N.E.2d at
927. However, we find these cases inapplicable because they involve
incarcerated parents, and Father here is not incarcerated.
[10] Father also relies on Miller v. Sugden, 849 N.E.2d 758 (Ind. Ct. App. 2006),
trans. denied. There, the father lost his employment as a chemist for Eli Lilly for
the unauthorized removal of “chemistry material” from the lab. Miller, 849
N.E.2d at 759. The father filed a petition to modify his child support, and the
trial court imputed the gross weekly income that the father had earned at Eli
Lilly. On appeal, we distinguished the case from Carmichael v. Siegel, 754
N.E.2d 619, 633 (Ind. Ct. App. 2001), where we held:
if a parent’s intentional misconduct directly results in a reduction
of his or her income, no corresponding decrease in his or her
child support obligation should follow, because such misconduct
results in ‘voluntary underemployment’ according to the Child
Support Guideline 3(A)(3), and the income the parent was
earning before that misconduct should be imputed to that parent.
Miller, 849 N.E.2d at 761. We noted that “Carmichael involved a parent who
petitioned for a modification of child support after his license to practice law
was suspended because he intentionally deceived a bankruptcy court.” Id. We
concluded that Carmichael was distinguishable because there was “no indication
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that criminal charges were ever filed against Father with regard to the
disappearance of chemicals from his lab.” Id. Although the evidence supported
“the trial court’s finding that Father’s termination from Lilly was the result of
his own misconduct,” we could not conclude that the father’s conduct
amounted to the level of “intentional deceit present in Carmichael.” Id.Although we concluded that the father’s income should not be imputed to his
prior income from Eli Lilly, we did conclude that he was capable of working as
a chemist, although at a lesser salary. Consequently, we imputed income to
him in the amount of $900 per week.
[11] This case is more like Miller than Carmichael. Father’s misconduct, while
disturbing and criminal, do not seem to rise to the level of “intentional deceit
present in Carmichael.” Id. It is undisputed that Father has lost his job as an
airline pilot and, although he still has the chance of regaining similar
employment if he complies with the FAA requirements, it is unclear when or if
an increase in his income will occur. Under these circumstances, we conclude
that the trial court’s imputation of income to Father is clearly erroneous.
Conclusion
[12] The trial court’s denial of Father’s petition to modify child support is clearly
erroneous. We reverse and remand for a recalculation of child support.
[13] Reversed and remanded.
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Baker, J., concurs.
Crone, J., concurs in result with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Robert Paul Harris, III, Court of Appeals Case No.
32A01-1702-DR-302
Appellant-Petitioner,
v.
Melanie Harris,
Appellee-Respondent
Crone, Judge, concurring in result.
[14] I agree with the majority’s decision to reverse the denial of Father’s petition to
modify child support, but I would do so on different grounds. I believe that the
facts of this case are more analogous to those involving incarcerated parents, in
that Father lost his pilot’s job as a result of an act for which he was criminally
charged and convicted. There is no evidence that he committed the act to
evade his support obligation or that he could earn his previous income of
$89,000 per year until he fulfills the aforementioned FAA requirements. 1
Although Father is not incarcerated, based on our supreme court’s reasoning in
Lambert, I believe that the trial court should not impute potential income based
1
There is no evidence that Father has dragged his feet in fulfilling those requirements or that he could have
fulfilled them by the time of the hearing on his petition.
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on his previous income “but should rather calculate support based on [his]
actual income and assets[.]” 861 N.E.2d at 1177.
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