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Marshall v. Marshall

Court of Appeals of Indiana

January 18, 2018

Dayne J. Marshall, Appellant-Respondent,
v.
Angela M. Marshall, Appellee-Petitioner.

         Appeal from the Wabash Superior Court The Honorable Patrick R. Miller, Special Judge Trial Court Cause No. 85D01-0811-DR-424

          ATTORNEY FOR APPELLANT Mark C. Guenin Guenin Law Office, P.C. Wabash, Indiana

          ATTORNEY FOR AMICUS CURIAE NEIGHBORHOOD CHRISTIAN LEGAL CLINIC Amy C. Cornell Wabash, Indiana

          ATTORNEY FOR APPELLEE R.P. Fisher Fisher & Ireland Wabash, Indiana

          Brown, Judge.

         [¶1] Dayne J. Marshall ("Father") appeals from the trial court's order modifying child support and raises the issue of whether the trial court erred in entering the weekly gross income of Angela M. Marshall ("Mother") on its child support obligation worksheet. Mother cross-appeals and raises a number of issues including whether the court erred in determining that she was voluntarily underemployed, in determining Father's weekly gross income, in finding her in contempt, and in denying her request for attorney fees. We affirm in part, reverse in part, and remand.

         Facts and Procedural History

         [¶2] Father and Mother were married in January of 2005 and had a child in March of 2008. In June of 2009, the trial court entered a final decree dissolving the parties' marriage, and the decree incorporated a settlement agreement related to custody, parenting time, and the division of property. The settlement agreement provided that Father and Mother would have joint legal custody, Father would have physical custody, and no child support would be due at that time. On August 30, 2010, the court entered an order which stated in part that Father had filed a motion for modification of child support and ordered that Mother begin making child support payments of fifty-two dollars per week.[1]

         [¶3] On April 12, 2016, Mother filed a motion for modification of child support alleging there had been a substantial and continuing change in circumstances and that application of the guidelines would result in a decrease of support of more than twenty percent. On August 5, 2016, Father filed an affidavit for citation for contempt of court stating that child support of fifty-two dollars per week was payable by Mother beginning on August 27, 2010, that Mother had willfully disobeyed the order in that she refused to pay child support, that through July 31, 2016, Mother was in arrears in the sum of $4, 157, and that Mother should be required to pay all expenses incurred as a result of the violation. On April 28, 2017, the court held a hearing on the parties' motions at which they presented evidence regarding, among other matters, their work and incomes. Both parties requested attorney fees.

         [¶4] On June 5, 2017, the court issued an order which provided in part:

1. The Court adopts the Child Support Obligation Worksheet attached hereto as Exhibit A. The CSOW imputes [Mother's] income on a full time, rather than a part time, basis.
2. The Court determines that [Mother] met her burden in demonstrating a modification of child support is warranted.
3. Therefore, the Court orders that [Father] shall pay to [Mother] child support in the amount of $58.00 per week commencing Friday April 15, 2016. [Mother]'s prior weekly child support obligation is terminated effective April 14, 2016.
* * * * *
5. [Mother]'s child support arrearage as of April 14, 2016 is $4, 151.00.
6. From April 15, 2016 through April 28, 2017, [Mother] paid weekly child support, not due as a result of this modification in the sum of $2, 130.00 which shall reduce her child support arrearage to $2, 021.00.
7. [Father]'s child support arrearage as of and including April 28, 2017 (date of court hearing) is $3, 190.00.
8. The Court offsets the parties' child support arrearages and finds that [Father] now owes a net child support arrearage as of and including April 28, 2017 of $1, 169.00.
9. In addition to his regular weekly child support obligation, [Father] shall pay the sum of $25.00 per week until the child support arrears are paid in full.
* * * * *
12. For child support calculations, the Court has specifically found that:
a. [Mother] is voluntarily underemployed and therefore her income is imputed ...

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