FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
BRYAN LEE CIYOU MICHAEL CHEERVA
Ciyou & Dixon, P.C. Phelps Fara Avery & Cheerva
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE MARRIAGE OF )
DONNA J. MacLAFFERTY, )
)
Appellant-Respondent, )
)
vs. ) No. 49A04-0309-CV-491
)
WILLIAM P. MacLAFFERTY, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patrick McCarty, Judge
Cause No. 49D03-0212-DR-2054
July 7, 2004
OPINION FOR PUBLICATION
MATHIAS, Judge
William MacLafferty (Father) filed a petition to modify his child support obligation and
parenting schedule in Marion Superior Court. The trial court granted his petition
and Donna MacLafferty (Mother) appeals raising the following issues, which we restate as:
I. Whether Mothers increased income constitutes a changed circumstance so substantial and continuing
as to make the terms of the existing child support order unreasonable;
II. Whether the trial court abused its discretion when it determined that the
childrens summer day camp was no longer a child care expense; and,
III. Whether the trial court erred when it modified Fathers weeknight parenting time
to allow Father to exercise that time on either Tuesday or Wednesday night
with forty-eight hours advance notice to Mother.
We affirm.
Facts and Procedural History
Mother and Fathers marriage was dissolved in 1995. Physical custody of the
parties two minor children was awarded to Mother. In 1998, in an
agreed entry filed by the parties, Fathers child support obligation was calculated to
be $406 per week. The parties also agreed that they would each
pay one-half of the childrens extracurricular activities. Appellees App. p. 148.
In 2001, Father requested a modification of child support, and on April 17,
2002, the trial court reduced Fathers child support obligation to $364 per week.
However, the court ordered Father to pay additional child support in an
amount equal to six percent of any annual bonus income received. Father
was also awarded a twelve percent credit for visitation. Appellants App. pp.
22-25.
On October 28, 2002, Father filed a petition to modify child support and
the parenting schedule. Father alleged that his child support obligation should be
reduced because there had been a substantial and continuing change of circumstances from
the April 17, 2002 child support order due to an increase in Mothers
income. Father also argued that the childrens summer day camp should be
treated as an extracurricular activity and not as a child care expense.
With regard to parenting time, Father requested that his weeknight parenting time with
the children be extended from 7:45 p.m. to 9:00 p.m. Finally, Father
alleged:
That Mother has established a pattern of frequent disregard for the letter or
the spirit of the visitation/parenting guidelines currently in place between the parties and
that the Petitioner/Father requests that the Court provide assistance and recommendations to Mother
regarding the exercise of reasonable flexibility in the establishment of visitation schedules.
Appellants App. p. 30.
Father also filed a motion for change of judge, which was granted, and
Judge Patrick McCarty accepted jurisdiction of this case on December 4, 2002.
A hearing was then held on April 14, 2003. At the hearing,
Father presented evidence that Mother had obtained full-time employment and her weekly gross
income had increased from $324 to $709. Father also argued that the
childrens summer day camp should no longer be considered a child care expense,
but an extracurricular activity. Tr. pp. 14-15. Mother asserted that the
summer day camp was a necessary child care expense due to her full-time
employment. Father submitted a child support worksheet on which he calculated his
child support obligation to be $313 per week. Ex. Vol., Petitioners Ex.
2. Father also requested that the court allow him to exercise his
midweek parenting time on either Tuesday or Wednesday night because of personal conflicts
in his schedule. Tr. pp. 5, 30-33, 53-54.
The trial court issued findings of fact and conclusions of law on July
10, 2003. With regard to the child support calculation, the trial court
found that Mothers weekly gross income was $709 per week and that her
overall household income had substantially increased. Appellants App. pp. 11-12. The
trial court also found that Fathers wife has the ability to provide care
for the children at no cost during the summer, and therefore, the childrens
summer day camp should be treated as an extracurricular expense. Appellants App.
p. 12. The trial court determined that Mothers change to full-time employment
and the increase in her income attributable thereto constitutes a substantial and continuing
change of circumstances sufficient to find that the previous Court Order regarding Support
and Visitation is now unreasonable. Appellants App. p. 19. Accordingly, the
trial court reduced Fathers child support obligation to $313 per week and ordered
the summer day camp expense to be shared equally by the parties beginning
with the summer of 2004. Appellants App. p. 19.
With regard to parenting time, the trial court found that Father requires flexibility
for his weekday visitation because he has activities on either Tuesday or Wednesday
evenings, which require some scheduling changes so that he may have quality parenting
time with the children. Appellants App. pp. 12-13. Further, the court
found that Fathers scheduling difficulties would be greatly resolved if he were allowed
to choose which evening of the week that he could exercise his mid-week
visitation. Appellants App. p. 13. Therefore, the trial court ordered Fathers
mid-week parenting time to be on Tuesday or Wednesday nights with the day
to be decided upon by Father and that he shall provide Mother with
at least forty-eight hours notice of his choice of day. Appellants App.
p. 19. Finally, the trial court extended Fathers mid-week parenting time from
7:45 p.m. to 9:00 p.m. Mother now appeals. Additional facts will
be provided as necessary.
Standard of Review
Mother requested findings of fact and conclusions of law pursuant to Indiana Trial
Rule 52(A),
which prohibits a reviewing court on appeal from setting aside the trial courts
judgment unless clearly erroneous. The court on appeal is to give
due regard to the opportunity of the trial court to judge the credibility
of the witnesses. When a trial court has made special findings of
fact, as it did in this case, its judgment is clearly erroneous only
if (i) its findings of fact do not support its conclusions of law
or (ii) its conclusions of law do not support its judgment.
Dunson v. Dunson, 769 N.E.2d 1120, 1123 (Ind. 2002) (internal citations omitted).
I. Modification of Child Support
Mother argues that Father failed to present evidence showing changed circumstances so substantial
and continuing which would allow for modification of child support,
See footnote and therefore, the
trial court erred when it reduced Fathers child support obligation from $364 to
$313 per week. Father asserts that the trial court properly modified his
child support obligation due to Mothers significant increase in income.
We review a trial courts decision to modify child support under the clearly
erroneous standard and will reverse only where the trial courts decision is clearly
against the logic and effect of the facts and circumstances before it.
Harris v. Harris, 800 N.E.2d 930, 938 (Ind. Ct. App. 2003), trans. denied.
Indiana Code section 31-16-8-1 provides that child support awards 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.
Ind. Code § 31-16-8-1 (1998). The petitioner bears the burden of proving
a substantial change in circumstances justifying modification.
Weiss v. Frick, 693 N.E.2d
588, 590 (Ind. Ct. App. 1998), trans. denied.
In its findings of fact and conclusions of law, the trial court concluded,
Mothers change to full-time employment and the increase in her income attributable thereto
constitutes a substantial and continuing change of circumstances sufficient to find that the
previous Court Order regarding Support and Visitation is now unreasonable. Appellants App.
p. 19. Initially, we observe that when determining a parents child support
obligation, the trial court should consider the financial resources of both parents and
the standard of living the children would have enjoyed had the marriage not
been dissolved. Ind. Code § 31-16-6-1 (1998); Ind. Child Support Guideline 1
(2004).
The Indiana Child Support Guidelines provide that [a] change in circumstances may include
a change in the income of the parents, the application of a parenting
plan, the failure to comply with a parenting plan or a change in
the expense of child rearing specifically considered in the Guidelines. Child Supp.
G. 4, cmt. Father notes that our courts have held that changes
in the relative financial resources of both parents alone may be sufficient to
modify a child support order. Br. of Appellee at 7 (citing
Harris,
800 N.E.2d at 938; Kirchoff v. Kirchoff, 619 N.E.2d 592, 596 (Ind. Ct.
App. 1993), disapproved on other grounds by Merritt v. Merritt, 693 N.E.2d 1320,
1324 n.4 (Ind. Ct. App. 1998), trans. denied).
In
Harris, modification of child support was warranted where the evidence established that
Fathers employment was terminated, he obtained a new job in Colorado, and was
required to invest $250,000 in the company. 800 N.E.2d at 938.
Fathers new compensation package consisted of a base salary of $325,000, a car
allowance of $750 per month, and a potential for bonus income of $162,500
annually. Id. The record also established that Mother had obtained regular
employment earning $90,000 annually with a monthly car allowance of $500. Id.
Our court held that the change in employment and financial situation of
both parties presents a substantial and continuous change to justify a modification in
Fathers child support obligation. Id. In Kirchoff, our court affirmed
the trial courts modification of child support where Fathers income had significantly declined
and Mothers income had significantly increased. 619 N.E.2d at 595-96.
In this case, in less than one year, Mothers weekly gross income increased
from $324 per week to $709 per week because she obtained full-time employment.
Appellants App. p. 25; Ex. Vol., Petitioners Ex. 2. Fathers weekly
gross income also increased from $2287 per week to $2407 per week.
Father offered an exhibit at the hearing showing a calculation of Mothers total
household income for the previous four years and her estimated 2003 income utilizing
Fathers proposed reduction of his weekly child support obligation. The exhibit established
that Mothers household income in 2002 was $42,949 and her estimated 2003 income
would be $55,676 if Fathers support were reduced to $313 per week.
Ex. Vol., Petitioners Ex. 8. However, we also note that while Mothers
income increased substantially, her percentage share of the parties total weekly income only
increased by eleven percent.
Mother argues that the reduction in Fathers child support obligation will cause the
childrens lifestyle to erode in marked ways. Br. of Appellant at 21.
In support of that argument, Mother cites to her own testimony where
she stated that if Fathers support obligation was reduced, she would likely have
to eliminate certain items from her budget such as internet access or taking
the children out to dinner. Id. (citing Tr. pp. 73-74). However,
her testimony conflicts with Fathers exhibit, which she did not object to at
the hearing, demonstrating that her yearly household income will increase by more than
$12,000 even if Fathers child support obligation is reduced. Mothers argument amounts
to a request to our court to reweigh the evidence and the credibility
of the witnesses, which we will not do.
The Child Support Rules provide that there shall be a rebuttable presumption that
the amount of the award which would result from the application of the
Indiana Child Support Guidelines is the correct amount of child support to be
awarded.
See Ind. Child Support Rule 2 (2004). Moreover, as we
noted above, our courts have held that an increase in the parties income
may constitute a changed circumstance so substantial and continuing as to make the
terms of the existing support order unreasonable. Under these facts and circumstances,
where Mothers income more than doubled after she obtained full time employment, we
conclude that the trial courts order reducing Fathers child support obligation was not
clearly erroneous.
See footnote
II. Summer Day Camp
Mother also argues that the trial court abused its discretion when it found
that the childrens summer day camp is no longer needed as a child
care expense. See Appellants App. p. 19. Father contends that child
care is available at his home at no cost to be provided by
his wife who does not work outside the home
Child Support Guideline 3(E) provides that child care costs incurred due to employment
of the parents should be added to the basic child support obligation.
Such child care costs must be reasonable and should not exceed the level
required to provide quality care for the children. Child Supp. G. 3(E)(1).
Work-related child care expense is an income-producing expense of the parent. Presumably,
if the family remained intact, the parents would treat child care as a
necessary cost of the family attributable to the children when both parents work.
Therefore, the expense is one that is incurred for the benefit of
the child(ren) which the parents should share.
Child Supp. G. 3(E), cmt.
The trial court made the following findings with regard to the childrens summer
day camp:
16. Fathers wife Alicia, is a homemaker and can provide care for
the parties children at no cost during the summer. The boys have
a good relationship with their stepmother and enjoy being with their sisters[.]
Spending time at Fathers home during the summer would eliminate the need for
the boys to attend summer camp for the six (6) week period that
they have attended in the past. While Father believes that some summer
camp attendance is beneficial, it is his opinion that the number of weeks
should be limited and that cost should be treated as an extra-curricular expense
and, thereby, eliminated from the child support calculation as a daycare expense.
18. Father is willing to assist with the necessary travel, accommodations and
arrangements to assist in new summer camp and summer visitation schedules.
Appellants App. p. 12. The trial court also issued the following conclusion
of law:
5. The Court finds that the childrens summer day camp is no
longer needed as a child care expense and beginning with the summer 2004,
shall be treated as an extracurricular activity. The cost shall be divided
equally by the parties beginning with the summer of 2004.
Appellants App. p. 19.
It is undisputed that Mother has obtained full-time employment, and therefore, during the
summer when the children are not in school they require supervision. However,
at the hearing, Father argued that child care is available in his home
at no cost to be provided by his wife. We also note
that during the summer of 2004, the children will be thirteen and eleven
years old. At the hearing, Mother testified that their older son wants
to work at the summer day camp during the summer of 2004.
Father argues that if a child is old enough to work at the
camp, then he is not in need of child care.
See footnote
See Br.
of Appellee at 10. Finally, the trial court did not order Mother
to pay the full cost of the camp, but ordered the parties to
share the cost equally. Under these facts and circumstances, we conclude that
the trial court did not abuse its discretion when it determined that the
summer day camp was no longer a necessary child care expense.
III. Parenting Time
Mother argues that the trial court erred when it modified Fathers parenting time
to allow Father to choose either Tuesday or Wednesday night for his midweek
parenting time with the children. Mother contends that Fathers parenting time was
modified not because it was in the childrens best interests, but for the
convenience of Fathers schedule. Br. of Appellant at 27. Father asserts
that it is in the childrens best interests for Father to have parenting
time with the children during evenings when he is not scheduled to be
elsewhere.
Indiana Code section 31-17-4-2 provides that a trial court may modify an order
granting or denying visitation rights whenever modification would serve the best interests of
the child. Ind. Code § 31-17-4-2 (1998). [I]t is usually in
a childs best interest to have frequent, meaningful, and continuing contact with each
parent. Ind. Parenting Time Guidelines, Preamble (2004). Further, [p]arents should be flexible
in scheduling parenting time and should consider the benefits to the child of
frequent, meaningful and regular contact with each parent and the schedules of the
child and each parent. Ind. Parenting Time G. § I(C).
At the hearing, Father testified that initially he and Mother agreed that his
midweek parenting time would occur on Wednesday nights. Tr. p. 29.
However, in the Fall of 2002, Father asked Mother if he could change
his midweek parenting time to Tuesday nights because his church choir practice was
held on Wednesday nights. Mother would not agree to change Fathers midweek
parenting time to Tuesday, and therefore, Father took the children with him to
choir practice. Tr. p. 30. Father also testified that during the
summer, when he does not have choir practice, he is in a golf
league on Tuesday nights. Tr. pp. 30-31. Therefore, Father made a
request to modify his midweek parenting time so that he could choose either
Tuesday or Wednesday night.
We agree with Father that it is in the childrens best interests for
Father to have parenting time with the children on evenings when he is
able to spend meaningful, quality time with them. Further, Fathers testimony regarding
his activities suggests that his choice of day for his midweek parenting time
will not alter between Tuesday and Wednesday on a weekly basis. Moreover,
this flexible arrangement is consistent with the Indiana Parenting Time Guidelines. Accordingly,
we conclude that the trial courts order giving Father the option of either
Tuesday or Wednesday night parenting time is in the childrens best interests, and
therefore, was not clearly erroneous.
Conclusion
The trial court did not err when it reduced Fathers child support obligation
because Mothers increase in income constitutes a changed circumstance so substantial and continuing
as to make the terms of the April 17, 2002 child support order
unreasonable. Also, the trial court did not abuse its discretion when it
determined that the childrens summer day camp was no longer a necessary child
care expense. Finally, the trial courts modification of Fathers midweek parenting time
was in the childrens best interests.
Affirmed.
BARNES, J., and CRONE, J., concur.
Footnote:
Mother also argues that Fathers child support obligation did not differ by
more than twenty percent from the amount that would be ordered by applying
the Child Support Guidelines. However, the trial court did not modify Fathers
child support under that provision of Indiana Code section 31-16-8-1; therefore, we do
not address that argument in our resolution of this issue.
Footnote: Our supreme court has advised judges that the Child Support Guidelines should
not be treated as immutable, black letter law.
Garrod v. Garrod, 655
N.E.2d 336, 338 (Ind. 1995). Rather, there are situations which call for
flexibility and courts should avoid the pitfall of blind adherence to the [Guidelines]
computation for support without giving careful consideration to the variables that require changing
the result in order to do justice in such circumstances. Id. (citing
Child Supp. G. 1, cmt); see also Summerville v. Summerville, 679 N.E.2d 1344,
1347 (Ind. Ct. App. 1997). Despite our conclusion that the trial courts
modification of Fathers child support obligation was not clearly erroneous, we note that
Father earns seventy-seven percent of the parties total weekly gross income, and with
bonus income, his yearly gross income exceeds $125,000. Further, Fathers weekly gross
income increased $120 from the previous April 17, 2002 reduction of his child
support obligation. Ex. Vol., Petitioners Ex. 2; Appellants App. p. 25.
In cases like the one before us, where there is a wide disparity
in the parties relative financial situations, we suggest that courts should be hesitant
to reduce the child support obligation of the party with substantially greater financial
resources, especially when, as here, the other partys earned income has increased from
a level below the poverty line.
Footnote:
However, it is unclear from the record before us what work their
son would be performing and whether such work would be voluntary or if
their child would be compensated.