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Bogner v. Bogner

Supreme Court of Indiana

April 28, 2015

JAMES BOGNER, Appellant (Respondent below),
v.
TERESA BOGNER, Appellee (Petitioner below)

Page 734

Appeal from the Lake Superior Court, No. 45D03-0808-DR-796. The Honorable Elizabeth F. Tavitas, Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 45A04-1310-DR-505.

ATTORNEY FOR APPELLANT: Shana D. Levinson, Levinson & Levinson, Merrillville, Indiana.

ATTORNEYS FOR APPELLEE: Debra Lynch Dubovich, Levy & Dubovich, Merrillville, Indiana; Lynn F. Hammond, Valparaiso, Indiana.

David, Justice. Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.

OPINION

Page 735

David, Justice.

Teresa Bogner (Mother) and James Bogner (Father) were married and have one child, H.B. In 2007, when H.B. was just over two years old, the marriage was dissolved. Father was originally ordered to pay $162 per week in child support. In 2008, Father sought to modify his support obligation. The parties agreed under the Indiana Child Support Guidelines that Father's support obligation would be reduced to $135 per week. In 2013, Father again filed to modify his support obligation given an increased number of overnights Father was having with H.B. and a decrease in childcare costs. Under the Guidelines, the applicable parenting time credit decreased Father's support obligation to $59 per week. Mother sought a deviation from the amount recommended by the Guidelines. Mother argues that $59 per week is insufficient for her to continue supporting H.B. considering all of the attendant costs she incurs as the custodial parent.

A hearing was held, and the parties agreed to proceed in a summary fashion. After arguments of counsel, the Court entered findings that the support provided under the Guidelines was unreasonable and created a hardship on Mother. As such, the Court deviated upward from the recommended support, but still reduced Father's previous support obligation to $105 per week. Upon Mother's request, the Court also ordered that Mother would claim H.B. each year for the child dependency tax exemption, instead of alternating years with Father. Father appealed the trial court's ordered modification. Father argued that the trial court erred in deviating from the Guidelines regarding the amount of weekly support and in awarding the yearly state and federal tax exemptions to Mother.

Under the Guidelines, after considering certain factors, if " the court finds that the Guideline amount is unjust or inappropriate in a particular case, the court may state a factual basis for the deviation and proceed to enter a support amount that is deemed appropriate." Ind. Child Supp. G. 3(F)(2). The trial court stated on the record its finding that the support provided by the Guidelines was unreasonable, and

Page 736

included the basis for deviating from the Guideline amount.

This Court has continually advised trial courts that the Guidelines should not be treated as immutable, black letter law. Rather, some situations require greater flexibility. To the extent that Father challenges the form of the summary proceedings, that argument is waived because no objection to the nature of the proceedings was made at the time of the hearing. Moreover, the trial court did not clearly err during the summary proceeding when it relied upon the arguments of counsel and limited informal documentary evidence in reaching its findings and conclusions. As such, we affirm the trial court's child support modification order.

Facts and Procedural History

Mother and Father were married and have one child together, H.B. H.B. was born on January 16, 2005. On March 19, 2007, the Court granted Mother and Father's dissolution of marriage decree. Father was ordered to pay $162 per week in child support. Mother and Father were also ordered to alternate the years they claimed H.B. for the dependency tax exemption. Just over a year later, Father filed a petition to modify child support due to a substantial and continuing change in circumstances, consistent with the Guidelines. At that time, the parties agreed to modify Father's support obligation to $135 per week. Mother and Father continued to alternate the years that they claimed H.B. for the tax exemption. An automatic review of child support was set in one year to take into consideration that H.B. would be entering Kindergarten for the 2010/2011 school year.

At some point after the 2008/2009 modification, Father and his new wife moved to Valparaiso, Indiana to be closer to H.B.[1] After the move, Father started assisting Mother with H.B. two to three days a week before and after school. Mother and Father worked together to arrange their schedules so one or the other would be free to care for H.B. Given the increased amount of time that Father was spending with H.B., and the decrease in childcare costs since Father's move, Father sought another support modification, which is at issue in the present case. Prior to the modification hearing, Mother and Father stipulated to each other's incomes and number of overnights Father had with H.B. The Child Support Worksheet was entered as a joint demonstrative exhibit at the hearing.

Based on Mother and Father's income and Father's subsequent child credit, under the Guidelines Father would be obligated to pay $151 per week. However, Father could also receive a credit for the 140-145 overnights per year that he had with H.B. The parenting time credit amounted to $92 per week, which would reduce Father's total support obligation to $59 per week, if the full parenting time credit was applied. Mother did not stipulate to the recommended amount of support per week, contending that she could not properly support H.B. with such a minimal contribution from Father.

At the modification hearing on September 9, 2013, the Court and both parties agreed to conduct the hearing in summary fashion and no objections were made. Mother sought an upward deviation from the Guidelines, and Father sought for the trial court to modify support in accordance with the Guideline amount. Father argued that he was spending more time with H.B., childcare costs had decreased since H.B. was enrolled in school, he was attending many of H.B.'s extracurricular activities,

Page 737

and he had provided H.B. with all of her own clothing and her own bedroom at his house.

Mother requested an upward deviation from the Guidelines based on the fact that at $59 per week, Father would only be contributing $3,068 per year towards H.B.'s care. Mother also sought a deviation regarding who would claim H.B. for state and federal tax exemption purposes. Mother requested that she get to claim H.B. every year, rather than every other year. Under the Guidelines, Mother's weekly contribution is $120 per week, making her yearly contribution $6,240. Mother asserted that it is unreasonable for Father to pay such a minimal amount when his income is $1,236 per week, her income is $926 per week, and she has H.B. for the majority of overnights. Mother presented that she is also responsible for up to $848 for uninsured medical expenses and for the majority of H.B.'s " controlled expenses," which include expenses for clothing, education, school books and supplies, and personal care. See Ind. Child Supp. G. 6 Cmt. Simply, Mother argued that she needs more to raise H.B., especially if Father continues to claim H.B. every other year for tax purposes. Mother offered two exhibits in support of her arguments, to which Father did not object.

Thus, the issues to be determined by the court included: 1) to what extent should the court deviate from the support amount provided by the Guidelines; and 2) to what extent should the tax exemption be altered. The trial court determined that the decrease in childcare costs did support a substantial change in circumstances that warranted a support modification. After considering the arguments of both parties, the trial court entered findings on the record. The trial court noted that it is permissible under the Guidelines to deviate from the recommended support amount when the Guideline amount would be " unreasonable, unjust, or inappropriate." (Tr. at 24.) Additionally, parenting time credit is not automatic. Credit may be withheld if that credit would " jeopardize a parent's ability to support the child[]." (Tr. at 24-25.) The trial court determined that under the given circumstances, the Guideline amount was unjust and unreasonable. The trial court explained that it does not seem fair for Father to receive an $80 credit for his subsequent born child and a $92 credit for 140 overnights per year, while Mother has the child 220-230 nights per year, has fixed expenses, controlled expenses, and the first $848 of uninsured healthcare expenses. Under the parties stipulated worksheet, the child is entitled to $272 per week in support. According to the trial court's determination, it is " absurd" that Mother would be responsible for approximately $213 of that amount, in addition to the controlled expenses and uninsured health care. (Tr. at 25, 31.)

The trial court granted Father the parenting time credit for half of the number of overnights he exercised, which amounted to a credit of $46 per week. Thus, Father's weekly support obligation was decreased to $105 per week. The trial court also ordered that Mother be awarded the tax exemption every year, due to the fact that Father has a greater income than Mother. Father was also ordered to pay 56% of H.B.'s extracurricular expenses, which Father claimed he was already paying.

Father appealed the trial court's modification order, arguing that the trial court's findings did not support a deviation from the Guidelines in either the amount of his weekly obligation or in ordering Mother to claim H.B. every year for tax exemption purposes. The ...


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