APPEAL FROM THE WARRICK SUPERIOR COURT. The Honorable Robert R. Aylsworth, Judge. Cause No. 87D02-1110-DR-1398.
ATTORNEY FOR APPELLANT: TERRY A. WHITE, Olsen & White, LLP, Evansville, Indiana.
ATTORNEY FOR APPELLEE: KATHARINE VANOST JONES, Evansville, Indiana.
PYLE, Judge. MATHIAS, J., and BRADFORD, J., concur.
STATEMENT OF THE CASE
Mark Rolley (" Father" ) appeals the trial court's grant of Melissa Rolley's (" Mother" ) petition to modify child support.
Whether the trial court abused its discretion in granting Mother's petition to modify child support because the amount of Father's child support deviated by more than twenty percent from the Child Support Guidelines.
Mother and Father (collectively, " the Parents" ) married on August 10, 1996. They had one child together, M.R., who was born in 1997. On September 19, 2011,
when M.R. was around fourteen years old, Father filed a petition for dissolution of his marriage to Mother. Subsequently, on November 1, 2011, Mother and Father filed a written settlement agreement with the trial court that included provisions regarding child custody and support. The trial court approved the agreement on November 22, 2011.
Pursuant to the terms of the settlement agreement, the Parents shared joint legal custody, with Mother having primary physical custody and Father having parenting time on alternating weekends and one evening during the week. The Parents also agreed that Father would pay $350 per week in child support; maintain medical and dental insurance for M.R.; and pay for M.R.'s extracurricular activities, parochial school expenses through secondary school, college tuition and expenses, and any remaining medical, dental, hospital, or optometric expenses not covered by insurance. The Parents also acknowledged that Father's weekly $350 child support payment was " not based upon the Indiana Child Support Guidelines but [was] a sum that each believe[d was] fair and equitable under the  circumstances." (App. 19).
Around ten months later, on August 17, 2012, Mother filed a motion for relief from judgment and a petition to modify child support, arguing that since the entry of the settlement agreement, she had learned that Father's income was much greater than she had previously been told. She asked the trial court to modify Father's child support obligations because, in light of his higher income, the $350 he was required to pay was not reasonable. On November 16, 2012, Father responded by filing a motion to dismiss Mother's motion for relief from judgment, arguing that Mother's claims were frivolous, vexatious, and in bad faith.
Subsequently, on January 16, 2013, the trial court entered an order with findings of fact and conclusions thereon regarding Mother's motion for relief from judgment and petition for modification of child support and Father's motion to dismiss. It found that Mother had signed past IRS statements and, accordingly, knew Father's income. The trial court also noted that Father had submitted evidence of an e-mail communication between Mother and her attorney in which Mother stated that she had gone over several financial items with Father before agreeing to the terms of the settlement agreement. Based on these factors, the trial court granted Father's motion to dismiss Mother's motion for relief from judgment.
With respect to Mother's petition for modification of child support, the trial court concluded that, because it was only ten months after the Parents had signed the settlement agreement, Mother would have to prove that there were " changed circumstances so substantial and continuing as to make the terms of the prior support order unreasonable" in order for the court to grant her petition. (App. 55). However, the trial court also noted that if Mother moved to dismiss her petition to modify support without prejudice, she could then re-file a petition and attempt to prove under Indiana Code § 31-16-8-1(b)(2) that the amount of child support differed by more than twenty percent from the amount that would be ordered under the Child Support Guidelines.
That same day, on January 16, 2013, Mother moved to dismiss her petition without prejudice, and the trial court granted the motion. Mother then filed another petition to modify child support. In her petition, she argued that it had been over twelve months since the last support order and that there was more than a twenty percent difference between
the amount of support Father was required to provide under the order and the amount he would be required to pay under the Child Support Guidelines. She also alleged that " this change [was] so substantial and continuing that the prior [o]rder of the [c]ourt, as amended, is no longer reasonable under the circumstances." (App. 58).
At the time of Mother's petition, Father was the owner of a subchapter S corporation, Advanced Network Computer Services. According to his tax statements, his adjusted gross income for 2010 was $1,135,559, which amounted to $21,838 per week; and his adjusted gross income for 2011 was $1,338,827, which amounted to $25,747 per week. During the same time period, Mother was a student and worked part time, earning approximately $290 per week.
On May 23, 2013, Father filed a motion to dismiss Mother's petition to modify child support, and on May 28, 2013, the trial court held a hearing on both Mother's petition to modify and Father's motion to dismiss. At the time of the hearing, Father had not yet filed his 2012 taxes. However, Father later established that his 2012 income was $1,113,100, or $21,406 per week, and the trial court based its child support calculations on these amounts.
On July 23, 2013, the trial court granted Mother's petition to modify child support and ordered Father to pay $1,419 per week. The trial court found that modification was necessary because Father's $350 payment requirements were " vastly" less than the amount he owed Mother under the Child Support Guidelines. (App. 14). In addition to modifying Father's support requirements, the trial court also modified Mother's support obligations to require her to pay the first $4,807 per year of M.R.'s uninsured healthcare expenses, as ...