APPEAL FROM THE LAKE SUPERIOR COURT. The Honorable Elizabeth F. Tavitas, Special Judge. Cause No. 45D03-0808-DR-796.
ATTORNEY FOR APPELLANT: SHANA D. LEVINSON, Levinson & Levinson, Merrillville, Indiana.
ATTORNEY FOR APPELLEE: LYNN HAMMOND, Law Office of Lynn Hammond, Valparaiso, Indiana.
PYLE, Judge. FRIEDLANDER, J., and MATHIAS, concur.
STATEMENT OF THE CASE
Appellant/Father, James P. Bogner (" Father" ), appeals the trial court's modification of his child support obligations for his minor child, H.B. Father filed a petition to modify child support requesting the trial court to reduce his child support payments to his former wife, Teresa Bogner (" Mother" ), from $135 per week to the $59 per week amount recommended by the Indiana Child Support Guidelines. He argued that this amount was appropriate because H.B. no longer required support for childcare. The trial court found that the Child Support Guidelines created an unfair result and, instead, modified Father's child support obligation to $105 per week and eliminated Father's right to claim H.B. as a dependent on his taxes every other year. Father appealed, arguing that the facts did not support a deviation from the Child Support Guidelines and that the trial court abused its discretion when it modified Father's tax exemption without assessing his tax records. We determine that the trial court's conclusions were erroneous based on its oversight of Father's financial support of H.B. during his overnight visits with her, and accordingly, the trial court abused its discretion in deviating from the amount the Child Support Guidelines recommended. We also conclude that the trial court abused its discretion in modifying Father's tax exemption absent any evidence of its financial ramifications.
We reverse and remand with instructions.
1) Whether the trial court abused its discretion in modifying Father's child support obligation.
2) Whether the trial court abused its discretion in modifying Father's right to claim H.B. as a dependent on his taxes every other year.
Mother and Father (collectively, " the Parents" ) married on August 17, 2002. They had one child together, H.B., who was born in January 2005. On March 19, 2007, when H.B. was two years old, the Parents dissolved their marriage.
Pursuant to the dissolution of the Parents' marriage, the trial court ordered Father to pay $162 per week in child support and allowed the Parents to alternate claiming H.B. as a dependent every other year for tax purposes. Subsequently, on October 19, 2007, Mother agreed to allow Father to have an additional 78 overnight visits with H.B. per year, which meant that Father had a total of 158 overnights per year. However, Father's child support obligation remained at $162 per week.
On June 10, 2009, the Parents agreed to modify Father's child support obligation to $135 per week based on the Parents' child support worksheet and in light of a substantial and continuing change of circumstances. Mother agreed to pay the first annual $750 in annual reasonable and necessary uninsured health expenses for H.B., after which Mother would pay forty percent (40%) of any remaining and necessary uninsured health costs, and Father would pay sixty percent (60%).
At the time of this modification, H.B. required daycare, which cost $135 per week. Father paid sixty percent (60%) of this amount, which totaled $81 per week. In the June 10, 2009 support agreement, the Parents recognized that H.B. was about to enter kindergarten, which would alter her childcare costs. As a result, the trial court set the matter to be reviewed the next year when H.B. entered kindergarten, and the Parents " waive[d] any requirement that there be a [twenty percent] 20% deviation" between ...