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Miller v. Miller

Court of Appeals of Indiana

March 27, 2017

Mark H. Miller, II, Appellant-Respondent,
v.
Leigh Anne Miller, Appellee-Petitioner

         Appeal from the Marion Superior Court Trial Court Cause No. 49D12-1409-DR-29640 The Honorable Patrick J. Dietrick, Judge The Honorable Caryl Dill, Magistrate

          Attorney for Appellant Maria Matters Maria Matters Attorney at Law LLC Indianapolis, Indiana

          Attorney for Appellee Jeffery Marc Leeper Indianapolis, Indiana

          CRONE, JUDGE.

         Case Summary

         [¶1] Mark H. Miller, II ("Father"), appeals the decree dissolving his marriage to Leigh Anne Miller ("Mother"). He contends that the trial court clearly erred in finding that he is voluntarily underemployed, given that his decision to enroll as a part-time college student and forgo full-time employment was made with Mother's agreement during the marriage. He also argues that the trial court erred in imputing income to him where there was no evidence on two of the four factors required to determine imputed income.

         [¶2] We conclude that the trial court did not clearly err in finding that Father is voluntarily underemployed where he was simultaneously the children's primary caregiver and a part-time college student during the marriage, but he is now no longer the children's primary caregiver. However, we conclude that the trial court determined Father's imputed income without evidence of prevailing job opportunities and earnings levels in the community, and therefore a hearing is necessary for the trial court to hear evidence on these factors. Accordingly, we affirm in part, reverse in part, and remand.

         Facts and Procedural History[1]

         [¶3] Father and Mother were married in 1999. They had four children, born between 2004 and 2011. After the first child was born, Mother stopped working and was the primary caregiver of the children until December 2009, when she obtained full-time employment. In April 2010, Father lost his job as an insurance agent, earning a base salary of $36, 000 per year plus commissions. Tr. at 20. Thereafter, Father became the primary caregiver of the children. Father did laundry and grocery shopping, cooked all the meals, took the children to school and the doctor, and helped them with their homework. Father and Mother decided that Father should go to college. In the fall of 2010, Father enrolled as a part-time student at IUPUI to pursue a mechanical engineering degree.

         [¶4] In the spring of 2014, Father moved out of the marital residence. In September 2014, Mother filed a petition for dissolution. At the time of the final hearing, Father was going to college part time (taking eleven credit hours), working fifteen hours a week at his father's cleaning business, and living with and sharing expenses with his girlfriend. Id. at 11, 16, 22.

         [¶5] Following a hearing, in February 2016, the trial court issued the dissolution decree, which provides in relevant part as follows:

8. Father lost his job in April 2010. He has been voluntarily unemployed or underemployed since. The parties agreed that he would go to school beginning in the fall of 2010. He has been pursuing an Engineering De[g]ree at IUPUI. However, he is not enrolled as a full time student.
….
20. Father testified his income is $250 per week for 15 hours per week working for his father. He imputed minimum wage of $290 for child support purposes. The Court has already determined that he is underemployed.
….
23. The Court finds it is reasonable to impute income to Father at the rate of $600.00 per week based on his prior earning level at Farm Bureau [Insurance] and the fact that he is voluntarily under employed. The court did not consider imputing income from any other source of prior employment. There is no evidence that ...

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