Wednesday, May 14, 2014

Indiana Court of Appeals vacates child support order based upon imputed income

2015 Indiana Child Support Guidelines
review scheduled for public comment

Analysis of imputed income portion of the Opinion by the
Indiana Court of Appeals in Moore v Moore, 09 May, 2014

The issue on review for the Court was:
“Did the trial court abuse its discretion when it imputed income to Father?”

When Brian Moore found out that the Indiana Court of Appeals had ruled in his favour his first thought was, as he says, “Great. Now I don't have to worry about going to jail over something I couldn't do.” The Court in its decision concluded that the trial court lacked supporting evidence to find that Mr. Moore was underemployed and income should be imputed for child support purposes. Mr. Moore said, “I feel vindicated.” Based on this decision he is enthusiastic about focusing on rebuilding his business and providing for his children rather than supplementing the lifestyle of their other parent.

Brian Moore contended upon appeal that the trial court erred when it imputed income to him based upon the question to him by counsel for Kristy Moore of whether he could earn $50,000 per year. Mr. Moore did not respond that he could not but instead objected as to the question calling for speculation. He then testified that he had never made that much as a contractor. He further testified that he had earnings of around $400-$500 per week the prior year but because of the onslaught of litigation perpetuated by Mother and having acted as his own attorney his business profits were down to about $100 per week and he was borrowing money from his mother to make ends meet.

The GAL report stated: “Mr. Moore, despite having a master’s degree in Finance from the IU School of Business, has failed to keep a steady job.” What the GAL, who was conclusively proven to have committed perjury during the proceedings[fn1], overlooked is what the Court of Appeals noted;
“Father has an undergraduate degree from Butler and a MBA from Indiana University. He has worked as an independent contractor, however, since before the marriage.”

The trial court stated at one point “I have great concern about the fact that Father has not had any stable employment since 2008” which is a period preceding the dissolution of marriage. The Court of Appeals went on to note that Father “stated that he had lacked motivation to work and that the construction market had declined, resulting in no income in 2010 and only a few small remodeling jobs in 2011.” Further, that “at the August 2012 hearing, however, Father testified that he was making between $400 and $500 per week.” It becomes clear from this that Mr. Moore's occupation prior to, during the marriage and since the December 2009 dissolution had been in the building trades.

Despite this clear knowledge about Father's work history and income, with respect to Father’s income, the trial court made the following findings:
36. Father is a “general contractor” who is doing work for Woodridge. Father testified that he works between 20-40 hours per week and that he can control his schedule. Father failed to tender any evidence regarding his pay from Woodridge. Father refused to provide any pay information to the GAL.
37. Father receives money from his Mother each month; he estimated the sum to be around $1,000.00.
38. Father testified that he would be able to earn $50,000.00 per year, but for the preparation of his case in this cause.
39. The Court concludes that Father is purposefully under-employed and is capable of earning at least $961.54 per week. Father’s request that the Court use $100 per week as his income is unreasonable and the Court does not find Father’s testimony credible that he only earns $100 per week.

The Court of Appeals stated “Among other things, the court ordered that . . . Father was under-employed and capable of earing[sic] at least $961.54 per week.” As a basis for vacating the child support order the Court concluded, “Father contends that the trial court erred by imputing income to him for child support purposes in the amount of $50,000 per year. He claims the evidence does not support this amount. We agree.”

In support of the Court's conclusion that the trial court had improperly imputed income to Mr. Moore it relied upon the following statements of the evidence and argument.
“The original settlement agreement set Father’s weekly income at $428 per week. Further, eight months before the final day of the underlying evidentiary hearing, Father testified that he was earning between $400 and $500 per week.”
“The trial court determined that Father was capable of earning $50,000 per year. This finding is not supported by the evidence and is clearly erroneous. When asked by Mother’s counsel if he was capable of earning $50,000 a year, Father testified that he had never made that much in his current field, which he had been in throughout the marriage and thereafter. At the time of dissolution, the parties agreed that Father was earning about $22,200 per year. Nothing in the record indicates that Father’s income potential improved, let alone more than doubled, since the dissolution.”
“On remand, the trial court is directed to reconsider Father’s weekly income and child support obligation. This may be done by returning to the original income figure of $428 per week based upon Father’s failure to establish different income figures, or the court may find that an increase is warranted based upon the regular and continuing support Father receives from his mother. Once Father’s gross weekly income is determined, the trial court shall recalculate Father’s support obligation accordingly.”[fn2]

In this case the trial court should reassess the wrongly imputed income figure that resulted in an erroneous support order of $139 per week to reflect that Mother should be paying Father[fn3]. However it has come at a significant cost. Mr. Moore has sold business equipment, was forced to terminate his business space lease and cut back on his working hours to pay for the appeal costs[fn4] and write the appeal himself. Additionally, he was found in contempt of court and sentenced to a jail term for failure to pay the support based upon imputed income and has appealed that ruling[fn5]. The contempt has been stayed pending results of the appeal which should conclude that the sentence be vacated based upon the underlying support award lacking an evidentiary basis.

When Mr. Moore's subsequent appeal on contempt for failure to pay court ordered child support is issued I will bring those results to you.

1] Del Anderson, the GAL from Child Advocates, Inc., testified that the Pendleton Elementary School had to go on “lock-down” because of a threat made by Mr. Moore. However, the school principal, school system superintendent, and the Pendleton Chief of Police all testified that there had been no threat nor any “lock-down” as alleged by Mr. Anderson who fabricated the story.
2] [T]he regular support Father received from his mother could be properly imputed as income. See Glass v. Oeder, 716 N.E.2d at 417 (“Glass’ rent-free living arrangement provides him with a lower living cost that presumably frees up money for the support of his children and was a proper basis for the trial court to impute income”).
3] Mr Moore has completed a CSOW using income for Mother as she testified and his own at $428 per week. Based upon the current parenting time arrangement she would pay to him $5 per week.
4] In addition to the $250 filing fee and nearly $2500 for the transcript Mr Moore also had to pay my professional fees for coaching him and keeping him focused during the time he wrote his appeal.
5] That cause number is 49A04-1310-DR-499 which has been fully briefed.

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