Monday, April 18, 2011

Indiana Court of Appeals Rejects Judge Pfleging's Make Father Pay Regardless of the Law Plan

In an unpublished opinion the Indiana Court of Appeals rejected, wholesale, the judgment of Hamilton Superior Court II Judge Daniel J. Pfleging's plan to make a father pay child support in excess of that agreed upon, not give credit for payments made, make him pay mother's portion of the child's educational and health-care expenses and hold him in contempt for not doing so.

Father raised six issues on appeal

I. Whether the trial court erred when it calculated Father's child support arrearage as of the date of March 19, 2010;
II. Whether the trial court erred when it found that Father had paid $6,000.00 in child support during the time period from August 2007 through March 19, 2010;
III. Whether the trial court erred when it found Father in contempt of court for failure to pay support as ordered;
IV. Whether the trial court erred when it determined that Father owed “$15,939.04 plus $403.18 less $1,200.00” in college expenses for L.L.'s 2008-2009 academic year;
V. Whether the trial court erred by failing to offset funds owed to Father from Mother for uninsured medical expenses against any arrearage due to Mother; and
VI. Whether the trial court erred when it calculated Father's weekly gross income at $2,211.04, and incorporated that amount into its Order.

There was nothing groundbreaking in this decision. All aspects were well settled law. The decision is a memorandum opinion and cannot be cited as case law.

Interestingly, in all the cases I have ever read there has not been one where the Court of Appeals has across the board shot down everything a trial court has done in relation to orders regarding child support and a father.

This reflects a somewhat new attitude of the justices that a father is more than just an ATM to be squeezed financially for the benefit of the mother. Unfortunately a recent justice was just added to the Indiana Supreme Court, Steve David, who holds true to the old values that existing court orders are irrelevant when it comes to making a father pay.

So onto what happened in this case.

In the Agreement between the parents Father was to pay child support in the amount of $231.00 per week, both parties were to “contribute equally to the children's college tuition at a state college/university, after all grants, loans, and scholarships have been applied for by each child” and to “equally divide any unreimbursed medical, dental and optical expenses.”

The present litigation upon which the immediate appeal was filed began with Mother filing for a modification of the agreement which was followed by petitions for contempt filed by each against the other.

After three hearings over the course of fifteen months the trial court issued it's order which contained substantively the following;

1) Father had a child support arrearage of $25,185.00;
2) Father owed $15,142.22 for college expenses;
3) Father was in contempt for failing to pay support as ordered; and,
4) Father was responsible for payment of Mother's attorney fees in the amount of $3,715.00.

Thereafter, Father filed a motion to correct error, which the trial court denied. This appeal then followed. Father was represented by Melanie K. Reichert of Broyles Kight & Ricafort, P.C. in Indianapolis, Indiana. Mother did not file an appellee's brief. When the Appellee does not file a brief the Appellant is held to a lesser standard where error must only be shown at first blush.

Father first asserted that the trial court committed error in determining his child support payment arrearage. Although a payment history was introduced at an earlier hearing there was none introduced at the final hearing. The trial court's calculation of support owed through the final hearing but refusal to consider any payments made after the earlier hearing was error.

Father's second argument is that the trial court incorrectly calculated his support payments. Based upon Mother's exhibit, a statement by her as to Father's payment history, the court concluded that Father had only paid $6,000. However, the trial court had ample evidence submitted by Father that he had paid thousands of dollars more. The trial court's basis for Father's payment history based upon mother's assertion while ignoring Father's actual payment history was error.

Father's third argument is that the trial court erred in finding him in contempt for “failing to pay support as ordered.” Because the trial court calculated the support arrearage based upon a payment history that was seven months less than the period used to calculate amount owed and because the court relied upon Mother's false declaration of amount Father had paid during the time of payments that were included the Court of Appeals determined that Father cannot be held in contempt for failure to pay as ordered.

Father's fourth argument is that the evidence does not support the trial court's finding regarding college expenses he owed to Mother pursuant to the terms of the Agreement.

In making its determination the trial court added up the numbers provided on Mother's exhibit and concluded that Father owed $15,939.04 for fees, tuition, books, parking, and room and board.

Mother's calculation of the college expenses incurred by the child included;
$7,560.00 fee to cover room and board;
$6,531.00 for tuition;
$828.04 additional required fees;
$875.60 book fee; and
$145.00 parking
$15,939.64 total

Keep in mind the portion of the Settlement Agreement that relates to college expenses; the parents shall “contribute equally to the children's college tuition". Black's Law Dictionary, sixth edition, defines equal as, "Alike; uniform; on the same plane or level with respect to efficiency, worth, value, amount, or rights. Word 'equal' as used in law implies not identity but duality and the use of one thing as the measure of another." In short as relates here, two like amounts.

Father asserted that Mother provided no evidence that she actually paid $6531.00 for tuition. Although Mother claimed to have paid $875.60 for books, the accompanying receipts add up to approximately $440.00 or one-half of the amount claimed. Apparently Mother figures if she claims double the expense then Father can pay half of the claimed amount which will cover the entire actual expense. Similarly, Mother claimed to have paid $7560.00 for room and board. However, the residential lease presented showed that the cost for housing was $3400.00 during the school year. This time less than half of the actual expense which would result in a windfall to Mother.

Finally, Father asserted that the parties agreed that room and board was specifically not to be paid by the parents. Such language was in the Settlement Agreement. Although the total that Mother claimed to have spent was $15,939.64 the evidence showed that the actual costs, assuming tuition was as claimed, was only $10,371.00. Father's half would be $5185.50. Since only "tuition" was to be paid by parents, Fathers half would be $3265.50.

The trial court was in error by finding that Father owed Mother $15,939.04 instead of $3265.50. A nice try on the part of Mother and the Court.

Father's next argument was that the trial court should have used the unreimbursed medical expenses that he incurred to offset the child support payment arrearage. The Agreement provided in pertinent part, “Husband shall maintain health, dental, and optical insurance on the minor children. The parties shall equally divide any unreimbursed medical, dental and optical expenses. . . .”. Again, in short as relates here, equal means two like amounts.

During the hearing, Father introduced an expense accounting, which included a list of medical payments, and accompanying receipts, for which Father claimed he had not been reimbursed. Mother made no claim as to the charges being invalid nor did she claim that she had paid any of the unreimbursed expenses.

The trial court erred by refusing to assign any of the unreimbursed medical expenses to Mother. The panel of the Court of Appeals remanded with instruction for the trial court to calculate the total amount and offset Father's child support payment arrearage by half that amount.

Finally, Father asserts that the trial court erred by calculating his weekly gross income at $2,211.04, when his pay stubs and Verified Financial Declaration reveal that his income was $1,953.20 per week. The trial court made no findings or conclusion that Father's income was more than what the evidence showed. Thus, the trial court erred by basing its child support order on an unverified and unsigned child support worksheet declaring Father's income at $2211.04 per week. Since Mother was the one who petitioned to modify Father's child support payment obligation it can reasonably be assumed she provided the worksheet with the petition as required. Again, nice try.

One last thing just because it was the proper thing to do. The panel also vacated the award of Mother's attorney fees. The court stated, "Because the attorney order rests upon the trial court's finding of contempt based upon arrearages for support and educational expenses and because we vacate that finding, we also vacate the order for attorney fees.

For whatever reason Judge Pfleging had in completely ignoring the parties Settlement Agreement and the law it is clear that he held a strong bias against Father. Fortunately Father, unlike the vast majority of litigants, was able to afford to file the appeal.

Appealing a trial court order is a time sensitive issue. Rule 9 of the Rules of Appellate Procedure sets forth the time for filing: "A party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary. However, if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court's ruling on such motion is noted in the Chronological Case Summary or thirty (30) days after the motion is deemed denied under Trial Rule 53.3, whichever occurs first."

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