Mark H. Miller, II v. Leigh Anne Miller , 72 N.E.3d 952 ( 2017 )

FILED
Mar 27 2017, 6:06 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Maria Matters Jeffery Marc Leeper
Maria Matters Attorney at Law LLC Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark H. Miller, II, March 27, 2017
Appellant-Respondent, Court of Appeals Case No.
49A02-1604-DR-817
v. Appeal from the Marion Superior
Court
Leigh Anne Miller, The Honorable Patrick J. Dietrick,
Appellee-Petitioner Judge
The Honorable Caryl Dill,
Magistrate
Trial Court Cause No.
49D12-1409-DR-29640
Crone, Judge.
Case Summary
[1] Mark H. Miller, II (“Father”), appeals the decree dissolving his marriage to
Leigh Anne Miller (“Mother”). He contends that the trial court clearly erred in
finding that he is voluntarily underemployed, given that his decision to enroll as
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a part-time college student and forgo full-time employment was made with
Mother’s agreement during the marriage. He also argues that the trial court
erred in imputing income to him where there was no evidence on two of the
four factors required to determine imputed income.
[2] We conclude that the trial court did not clearly err in finding that Father is
voluntarily underemployed where he was simultaneously the children’s primary
caregiver and a part-time college student during the marriage, but he is now no
longer the children’s primary caregiver. However, we conclude that the trial
court determined Father’s imputed income without evidence of prevailing job
opportunities and earnings levels in the community, and therefore a hearing is
necessary for the trial court to hear evidence on these factors. Accordingly, we
affirm in part, reverse in part, and remand.
Facts and Procedural History1
[3] Father and Mother were married in 1999. They had four children, born
between 2004 and 2011. After the first child was born, Mother stopped
working and was the primary caregiver of the children until December 2009,
when she obtained full-time employment. In April 2010, Father lost his job as
an insurance agent, earning a base salary of $36,000 per year plus commissions.
Tr. at 20. Thereafter, Father became the primary caregiver of the children.
1
Father’s appellant’s appendix includes copies of exhibits and portions of the transcript in contravention of
Indiana Appellate Rule 50(F). It also needlessly includes motions and orders filed in the Court of Appeals.
See Ind. Appellate Rule 50(A)(2) (specifying contents of appellant’s appendix).
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Father did laundry and grocery shopping, cooked all the meals, took the
children to school and the doctor, and helped them with their homework.
Father and Mother decided that Father should go to college. In the fall of 2010,
Father enrolled as a part-time student at IUPUI to pursue a mechanical
engineering degree.
[4] In the spring of 2014, Father moved out of the marital residence. In September
2014, Mother filed a petition for dissolution. At the time of the final hearing,
Father was going to college part time (taking eleven credit hours), working
fifteen hours a week at his father’s cleaning business, and living with and
sharing expenses with his girlfriend. Id. at 11, 16, 22.
[5] Following a hearing, in February 2016, the trial court issued the dissolution
decree, which provides in relevant part as follows:
8. Father lost his job in April 2010. He has been voluntarily
unemployed or underemployed since. The parties agreed that he
would go to school beginning in the fall of 2010. He has been
pursuing an Engineering De[g]ree at IUPUI. However, he is not
enrolled as a full time student.
….
20. Father testified his income is $250 per week for 15 hours per
week working for his father. He imputed minimum wage of $290
for child support purposes. The Court has already determined
that he is underemployed.
….
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23. The Court finds it is reasonable to impute income to Father
at the rate of $600.00 per week based on his prior earning level at
Farm Bureau [Insurance] and the fact that he is voluntarily under
employed. The court did not consider imputing income from any
other source of prior employment. There is no evidence that any
of Father’s prior business concerns are operational or generating
income.
….
57. Here the parties mutually decided, well prior to the filing of
dissolution, that Father would attend school and Mother would
be the primary breadwinner. However, according to Father’s
testimony, he contributed substantially toward the support and
maintenance of the children and the household by applying the
proceeds of his student loans to those expenses.
58. Per the [Indiana Child Support] Guidelines, potential
income shall be determined using employment potential and
probable earnings level based on the obligor’s work history,
occupational qualifications, prevailing job opportunities, and
earnings levels in the community. Child Supp. G. 3(A)(3).
59. It is proper to impute income to Father at his prior earning
level since he is no longer the stay at home parent.
….
65. Although there is presently a disparity in the parties’ earning
levels, Father has a prior work history and the ability to earn an
income comparable to that of Mother even without his degree.
He is not attending school full time and has the ability to obtain
full time employment.
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….
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED ….
….
Father is ordered to pay child support in the amount of $97.00
per week plus $23.00 per week on the accrued arrearage of
$6,111.00 by income withholding until paid in full. In addition,
he is ordered to pay $500.00 toward the arrearage from his tax
refund each year.
Appellant’s App. at 21-31.
[6] Father filed a motion to correct, which the trial court denied. 2 This appeal
ensued.
Discussion and Decision
[7] Father challenges the trial court’s finding that he is voluntarily underemployed
and its decision to impute potential income to him based on his former salary as
a full-time insurance agent. Initially, we note that 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. We may affirm a general judgment with findings on
any legal theory supported by the evidence. As for any findings
2
The motion and order are not included in the record on appeal.
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that have been made, they will be set aside only if they are clearly
erroneous. A finding is clearly erroneous if there are no facts in
the record to support it, either directly or by inference.
Eisenhut v. Eisenhut, 994 N.E.2d 274, 276 (Ind. Ct. App. 2013) (citations
omitted). Also, because we are dealing with family law matters, our review is
conducted with “‘a preference for granting latitude and deference to our trial
judges.’” Kicken v. Kicken, 798 N.E.2d 529, 532 (Ind. Ct. App. 2003) (quoting
In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). We will reverse a
trial court’s decision regarding a parent’s unemployment or underemployment
and imputation of potential income only for an abuse of discretion. In re
Paternity of Pickett, 44 N.E.3d 756, 762 (Ind. Ct. App. 2015).
Section 1 – The trial court did not clearly err in finding that
Father is voluntarily underemployed.
[8] The Indiana Child Support Guidelines (“the 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). “Potential income may be determined if
a parent has no income, or only means-tested income, and is capable of earning
income or capable of earning more.” Id. cmt 2c. “But the Guidelines do not
require or encourage parents to make career decisions based strictly upon the
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size of potential paychecks, nor do the Guidelines require that parents work to
their full economic potential.” Sandlin v. Sandlin, 972 N.E.2d 371, 375 (Ind. Ct.
App. 2012). “Obviously, a great deal of discretion will have to be used in this
determination.” Ind. Child Support Guideline 3(A)(3), cmt 2c.
[9] Father first asserts that the trial court’s finding that he is voluntarily
underemployed is clearly erroneous because he has a legitimate reason for
working less than full time and Mother “presented no evidence that [he]
consciously reduced his income in order to avoid child support.” Appellant’s
Br. at 6. He cites Trabucco v. Trabucco, 944 N.E.2d 544 (Ind. Ct. App. 2011), for
the notion that “[w]here a parent is unemployed or underemployed for a
legitimate purpose other than avoiding child support, there are no grounds for
imputing potential income.” Id. at 550. However, in Pickett, we concluded that
the Trabucco statement was overbroad and unsupported by the Guidelines, and
we rejected the notion that income may be imputed only if the trial court finds
that a parent has purposely reduced his or her income to avoid child support.
44 N.E.3d at 766. We explained as follows:
One purpose of potential income is to discourage a parent from
taking a lower paying job to avoid the payment of significant
support. [Ind. Child Support Guideline 3(A)(3), cmt 2c.] On
some occasions, this Court has rephrased this principle as
follows, “A trial court has wide discretion with regard to
imputing income to ensure the child support obligor does not
evade his or her support obligation.” Miller v. Sugden, 849 N.E.2d
758, 761 (Ind. Ct. App. 2006), trans. denied; see also Kondamuri v.
Kondamuri, 852 N.E.2d 939, 950 (Ind. Ct. App. 2006) (“The trial
court has discretion to impute potential income to a parent if it is
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convinced the parent’s underemployment ‘has been contrived for
the sole purpose of evading support obligations.’”) (quoting In re
Marriage of Turner v. Turner, 785 N.E.2d 259, 265 (Ind. Ct. App.
2003)); Apter v. Ross, 781 N.E.2d 744, 761 (Ind. Ct. App. 2003)
(“With regards to imputing income, the trial court enjoys wide
discretion to ensure the child support obligor does not evade his
support obligation.”), trans. denied.[3] We caution that this
rephrasing should not be interpreted to mean that potential
income may not be imputed unless the court finds that the parent
is avoiding the payment of significant child support. While the
Guidelines clearly indicate that a parent’s avoidance of child
support is grounds for imputing potential income, it is not a
necessary prerequisite. For example, the relevant commentary
states, “When a parent is unemployed by reason of involuntary
layoff or job termination, it still may be appropriate to include an
amount in gross income representing that parent’s potential
income.” Ind. Child Support Guideline 3(A)(3), cmt 2c(4).
Thus, it is within the trial court’s discretion to impute potential
income even under circumstances where avoiding child support
is not the reason for a parent’s unemployment.
Id.4
3
The case cited by Father contains nearly identical language: “[T]he Guidelines give the trial court wide
discretion to impute potential income to a parent when the court is convinced that the parent’s
unemployment or underemployment has been contrived for the sole purpose of evading support obligations.”
Homsher v. Homsher, 678 N.E.2d 1159, 1164 (Ind. Ct. App. 1997) (citing Gilpin v. Gilpin, 664 N.E.2d 766, 767-
68 (Ind. Ct. App. 1996)).
4
Father also contends that “‘the concept of “voluntary unemployment or underemployment” as used in the
Guidelines requires both the ability to earn more income and the conscious choice on the part of a parent to
reduce income.’” Appellant’s Br. at 5-6 (quoting Lambert v. Lambert, 861 N.E.2d 1176, 1180 (Ind. 2007)).
However, the Lambert court addressed whether potential income was properly imputed to an incarcerated
parent and was referring to a particular example in the commentary to the Guidelines. 861 N.E.2d at 1180.
In any event, there is no dispute that Father consciously decided to enroll in college and suspend full-time
employment and therefore consciously decided to reduce his income.
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[10] Father further argues that the trial court’s finding that he is underemployed is
clearly erroneous because his financial circumstances have not changed since
the fall of 2010 when he enrolled in college. He relies on Scoleri v. Scoleri, 766
N.E.2d 1211 (Ind. Ct. App. 2002), for the proposition that “[t]here is no basis
for determining that a parent is underemployed when the level of his or her
earnings has remained relatively constant for a number of years.” Id. at 1219
(citing Matter of Paternity of Buehler, 576 N.E.2d 1354 (Ind. Ct. App. 1991)); see
also Apter, 781 N.E.2d at 764 (using same language); Carmichael v. Siegel, 754
N.E.2d 619, 626 (Ind. Ct. App. 2001) (same). In our view, the Scoleri court
oversimplified Buehler. In Buehler, this Court concluded that the trial court erred
in finding that the father was underemployed and imputing income to him
where he had operated his own photography studio since he graduated from
college and had been in the photography business throughout his ten-year
relationship with the mother. 576 N.E.2d at 1355. Specifically, the Buehler
court stated,
It is not our function here to approve or disapprove of the
lifestyle of these parties or their career choices and the means by
which they choose to discharge their obligations in general. It is
clear from the record that during a relationship which endured
for about ten years and resulted in the birth of the child in
question the father did [make a lifestyle and career choice] and
earned relatively the same as at the time of trial. There was no
basis therefore for a determination that he was underemployed
for the purpose of determining his support obligation.
Id. Thus, it was not simply that the father’s income level remained relatively
constant for several years; he made his lifestyle and career choice before or
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shortly after he began his relationship with the mother and worked in that
profession throughout the relationship.
[11] Here, the trial court found, and Father does not dispute, that when Father
started college as a part-time student in the fall of 2010, he also became the
children’s primary caretaker. At the time of the final hearing, he was still a
part-time student, but he is no longer the children’s primary caretaker. A
reasonable inference can be drawn that the time Father spent in his caretaking
function is now available for other purposes, yet he is working only fifteen
hours a week. We conclude that the trial court did not clearly err in finding
that Father is voluntarily underemployed for purposes of child support and
therefore we affirm that portion of the dissolution decree.
Section 2 – The trial court determined Father’s imputed
income without evidence of prevailing job opportunities and
earnings levels in the community.
[12] Father contends that the trial court clearly erred in imputing income to him of
$600 per week. As previously noted, “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). Here, in determining Father’s potential income, the trial
court properly considered Father’s work history and occupational
qualifications. However, Father contends that there is no evidence in the
record regarding prevailing job opportunities and earnings levels in the
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community. In her appellee’s brief, Mother asserts that the trial court properly
considered Father’s work history and abilities but fails to cite evidence in the
record regarding prevailing job opportunities and earnings levels in the
community. Accordingly, we reverse the portion of the trial court’s order
imputing $600 per week to Father and remand for an evidentiary hearing on
these two factors. If, after hearing evidence on all four factors, the trial court
determines that a revision of Father’s imputed income is proper, the trial court
may exercise its discretion to reevaluate and adjust other determinations
regarding child support in the dissolution decree.
[13] Affirmed in part, reversed in part, and remanded.
Riley, J., and Altice, J., concur.
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