MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Mar 26 2020, 10:23 am

court except for the purpose of establishing                                     CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Holly L. Lyons                                          Laurie D. Johnson
Brand & Morelock                                        Boje, Benner, Becker, Markovich
Greenfield, Indiana                                     & Hixson, LLP
                                                        Noblesville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy A. Brady,                                       March 26, 2020
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        19A-DR-2495
        v.                                              Appeal from the Hancock Superior
                                                        Court
Bethany R. Brady,                                       The Honorable Terry K. Snow,
Appellee-Petitioner.                                    Judge
                                                        Trial Court Cause No.
                                                        30D01-1202-DR-343



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-2495 | March 26, 2020                     Page 1 of 10
                                          Case Summary
[1]   Timothy Brady (“Father”) appeals an order modifying his child support

      obligation and requiring that he pay child support arrearage and a portion of the

      attorney’s fees incurred by Bethany Brady Brown (“Mother”). We affirm in

      part, reverse in part, and remand with instructions.



                                                   Issues
[2]   Father presents three issues for review, that is, whether the trial court abused its

      discretion by:


              I.      ordering Father to pay $5,265.53 as child support
                      arrearage;


              II.     modifying Father’s child support obligation from $229.00
                      weekly to $254.00 weekly; and


              III.    ordering Father to pay $2,000.00 of Mother’s attorney’s
                      fees.


                            Facts and Procedural History
[3]   Mother and Father, who are the parents of C.B. (“Child”), divorced in 2014.

      The parties executed a settlement agreement, which was incorporated into the

      Dissolution Decree (“the Decree”). The Decree provided that Mother would

      have the legal custody and primary physical custody of Child. Based upon

      Father’s income of $108,000.00 (and an attribution of minimum-wage income

      to Mother, a stay-at-home parent), Father was to pay $229.00 weekly in child
      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2495 | March 26, 2020   Page 2 of 10
      support. Father was obligated to report any income change to Mother within

      seven days of the occurrence.


[4]   Over the next several years, Father did not report any income changes to

      Mother. The parties mediated some parenting time issues, but they did not seek

      to modify the child support order in mediation or litigation. Father’s income

      rose to approximately $147,000.00 annually, while Mother did not seek

      employment outside the home.


[5]   On March 1, 2019, Father filed a petition seeking an increase in his parenting

      time with Child, then aged eleven. He asserted that Mother was in contempt of

      court for denial of parenting time. On July 23, 2019, Mother petitioned for an

      increase in child support. She alleged that Father was in contempt of court for

      failure to timely provide notification of income changes and she requested “an

      arrears assessment from the date of [the] Decree through February 28, 2019, for

      the difference of Father’s child support obligation paid and what Father’s child

      support obligation would have been had Father produced increased income

      verification as ordered by the Decree.” (App. Vol. II, pg. 74.)


[6]   On August 26, 2019, the trial court conducted a hearing on the pending

      petitions. On September 16, 2019, the trial court issued an order increasing

      Father’s parenting time. With respect to financial obligations, the order

      provided as follows:


              Father’s child support shall be modified to $254.00 per week
              effective August 30, 2019.


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2495 | March 26, 2020   Page 3 of 10
              Father is found in arrears on child support in the amount of
              $5,265.53 because he did not provide Mother with his past
              changes in income.


              Father is ordered to contribute $2,000.00 to Mother’s attorney’s
              fees within 30 days.


      Appealed Order at 1-2. Father now appeals.



                                Discussion and Decision
                                   Child Support Arrearage
[7]   At the hearing, Mother submitted into evidence a document detailing Father’s

      income increases for the calendar years 2015 through 2019. She calculated the

      corresponding child support amount to be $5,265.53 more than Father had paid

      as ordered in the Decree. The trial court ordered this amount to be paid “based

      on Exhibit 13.” (Tr. at 122.) Father challenges the order as a retroactive

      modification of child support. Mother responds that Father was properly

      ordered to pay that sum as a sanction for contempt.


[8]   We will reverse a child support determination only if the trial court has abused

      its discretion or made a determination that is contrary to law. Taylor v. Taylor,

      42 N.E.3d 981, 986 (Ind. Ct. App. 2015), trans denied. “A trial court has

      discretion to make a modification of child support relate back to the date the

      petition to modify is filed, or any date thereafter.” Becker v. Becker, 902 N.E.2d

      818, 820 (Ind. 2009). As a corollary proposition, modifications before the

      petition date are not within the trial court’s discretion. For example, “after
      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2495 | March 26, 2020   Page 4 of 10
       support obligations have accrued, a court may not retroactively reduce or

       eliminate such obligations.” Whited v. Whited, 859 N.E.2d 657, 661 (Ind.

       2007).1


[9]    Mother filed her petition to modify child support on July 23, 2019; thus, the

       trial court had discretion to make a child support modification retroactive only

       to that date, “or any date thereafter.” Becker, 902 N.E.2d at 820.

       Notwithstanding the trial court’s determination that Father was “found in

       arrears,” Appealed Order at 2, the uncontested evidence is that Father fulfilled

       his child support obligations pursuant to the Decree. The order that Father pay

       an additional $5,265.53 cannot rest upon the premise that Father was

       delinquent in his child support payments.


[10]   As Mother observes, a trial court may, within its discretion, find a party who

       has willfully disobeyed a lawfully-entered court order to be in indirect contempt

       of court. In re Paternity of M.F., 956 N.E.2d 1157, 1162 (Ind. Ct. App. 2011).

       When a party has been found to be in contempt of court, “monetary damages

       may be awarded to compensate the other party for injuries incurred as a result

       of the contempt.” In re Adoption of A.A., 51 N.E.3d 380, 387 (Ind. Ct. App.

       2016), trans denied. In determining the appropriate amount of the sanction, the




       1
         Two exceptions have been recognized, (1) when the parties have agreed to and carried out an alternative
       method of payment which substantially complies with the spirit of the decree or (2) the obligated parent takes
       the child into his or her home and assumes custody, provides necessities, and exercises parental control for
       such amount of time that a permanent change of custody is exercised. Whited, 859 N.E.2d at 662. Neither
       exception is applicable here.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2495 | March 26, 2020                    Page 5 of 10
       court may take into account the inconvenience and frustration that has been

       experienced by the aggrieved party. Id. at 388.


[11]   But here the trial court did not find Father in contempt of court. Father and

       Mother each alleged that the other was in contempt of court, for non-reporting

       and parenting time interference, respectively. The trial court ruled upon

       Father’s motion, finding that Mother was not in contempt of court. However,

       the trial court did not rule upon Mother’s motion. We remand this matter to

       the trial court so that it may determine if Father willfully disobeyed a court

       order and, if so, to consider the imposition of an appropriate sanction.


                                   Child Support Modification
[12]   Father contends that the trial court increased his child support from $229.00 to

       $254.00 weekly absent a statutory basis for doing so, and thus acted contrary to

       law. Indiana Code Section 31-16-8-1 provides for the modification of an

       existing child support order 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 party has been ordered to pay an amount in child support that

       differs by more than twenty percent from the amount that would be ordered by

       applying the child support guidelines” and the existing order is at least twelve

       months old. Mother concedes that the $25.00 change in child support is less

       than the 20% threshold, but she argues that the “almost $40,000 increase” in

       Father’s income since 2014 (while she remained a stay-at-home parent) is a

       substantial change justifying modification. Appellee’s Brief at 15.


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2495 | March 26, 2020   Page 6 of 10
[13]   Where, as here, the sole alleged change of circumstances is a change in parental

       income, the Indiana Supreme Court has provided guidance with reference to

       Indiana Code Section 31-16-8-1:


               Our interpretation of the Legislature’s action in 1997 is that it
               wanted to provide a bright-line for parents and for courts as to
               when a parent would be entitled to modification in his or her
               child support obligation solely on grounds of change in income.
               …


               In addition to providing a bright-line test for a parent who seeks
               modification solely on grounds of change in income, it seems to
               us that, as a practical matter, the Legislature has effectively
               established a bifurcated standard for modification, Subsection (2)
               covering situations where a parent seeks modification solely on
               grounds of change in income and Subsection (1) covering all
               other situations (including situations alleging a change in income
               and one or more other changes). It is true that, as a matter of
               pure logic, a parent could seek modification solely on grounds of
               change in income under Subsection (1) – indeed, Father does so
               here. But we do not believe that the Legislature would consider a
               change in circumstances standing alone (i.e., without any other
               change in circumstances) that would change one parent’s child-
               support payment by less than 20% to be “so substantial and
               continuing as to make the terms [of the prior order]
               unreasonable.” Indeed, it is hard to see the reason the
               Legislature would have enacted subsection (2) at all if a parent
               could receive a modification under Subsection (1) where the only
               changed circumstance alleged would change one parent’s
               payment by less than 20%.


               Nevertheless, we do not hold that a modification may never be
               made under subsection (1) where the changed circumstance
               alleged is a change in one parent’s income that only changes one
               parent’s payment by less than 20%. There may be situations
       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2495 | March 26, 2020   Page 7 of 10
               where a variety of factors converge to make such a modification
               permissible under the terms of the statute. While we do not find
               this case to be such a situation, we do not foreclose such a
               possibility.


       MacLafferty v. MacLafferty, 829 N.E.2d 938, 942 (Ind. 2005).


[14]   Here, there is no indication that the trial court was asked to consider “a variety

       of factors.” Id. In her petition for modification, Mother alleged that there had

       been a “substantial and continuous change in circumstances as Father’s income

       has substantially increased.” (App. Vol. II, pg. 74.) Father testified and

       acknowledged that his income had increased. Mother testified but did not offer

       evidence of her income or her current ability to earn income. She submitted a

       child support worksheet attributing weekly income of $290.00 to her; Father did

       not challenge the attribution.


[15]   Indiana courts may consider the financial circumstances and net worth of

       parents in addition to their incomes when calculating child support. Garrod v.

       Garrod, 655 N.E.2d 336, 338-39 (Ind. 1995). But in this case there was no

       evidence presented as to the parties’ current financial circumstances apart from

       the very limited testimony of income. The modification is derivative of a

       change in one parent’s income resulting in a payment change of less than 20%.

       We agree with Father that the modification order is inconsistent with Indiana




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2495 | March 26, 2020   Page 8 of 10
       Code Section 31-16-8-1.2 We remand for an evidentiary hearing to consider

       additional factors bearing on a modification of child support where there is less

       than a 20% change in the child support amount.


                                                 Attorney’s Fees
[16]   Finally, Father challenges the order that he pay $2,000.00 of Mother’s

       attorney’s fees. We review a decision to award attorney’s fees and the amount

       for an abuse of discretion. Montgomery v. Montgomery, 59 N.E.3d 343, 354 (Ind.

       Ct. App. 2016), trans. denied.


[17]   Indiana Code Section 31-16-11-1 permits a trial court to order a parent to pay

       reasonable attorney’s fees to the other parent related to post-dissolution

       proceedings. The trial court is to consider the parties’ resources, their economic

       condition, ability to engage in gainful employment, and any other factors

       bearing on the reasonableness of the award. Myers v. Myers, 80 N.E.3d 932, 938

       (Ind. Ct. App. 2017). Misconduct directly resulting in additional litigation

       expenses may be taken into account in reaching the decision to award such fees.

       Id. The trial court is not required to give reasons for its decision to award fees.

       Id.




       2
         In MacLafferty, the Court observed that “we rely on the trial court’s determination of the respective incomes
       of the parties” but “whether or not the change in circumstances asserted is ‘so substantial and continuing’ as
       to render the prior child support order’s terms ‘unreasonable’ is, at a minimum, a mixed question of law and
       fact. To the extent it is a question of law, it is the duty of the appellate court to give it de novo review[.]” 829
       N.E.2d at 941.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2495 | March 26, 2020                         Page 9 of 10
[18]   Here, the parties submitted scant evidence of their relative economic positions,

       with the trial court advised only of income and attributed income. However,

       the trial court questioned Father as to his omission of income reporting, and it

       appears from the court’s commentary that attorney’s fees were awarded based

       upon Father’s non-compliance. We are mindful that the trial court did not find

       Father to be in contempt of court. However, Father testified that he did not

       report income changes, and believed that his human resources officer took care

       of this, but ultimately, he “had no excuse.” (Tr. Vol. II, pg. 82.) Father’s lack

       of cooperation, even if it is short of willful disobedience, necessitated Mother

       additional expenditure of time and effort. And Father generates significantly

       more income than does Mother. Father has not demonstrated that the trial

       court abused its discretion by awarding Mother a portion of her attorney’s fees.



                                               Conclusion
[19]   The order for payment of attorney’s fees is affirmed. The order that Father pay

       child support arrearage and the child support modification order are reversed.

       We remand for an evidentiary hearing to consider factors relative to child

       support and for a determination of whether the evidence established that Father

       is in contempt of court and, if so, whether a sanction is appropriate.


[20]   Affirmed in part, reversed in part, and remanded with instructions.


       Crone, J., and Altice, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2495 | March 26, 2020   Page 10 of 10
