An Indiana trial court did not err in finding a Marion County father is voluntarily underemployed, yet it failed to consider evidence of the father’s prevailing job opportunities or earnings level, the Indiana Court of Appeals found Monday.
In Mark H. Miller, II v. Leigh Anne Miller, 49A02-1604-DR-817, Mark and Leigh Anne Miller had four children together, and Leigh Anne Miller served as the primary caregiver for her children until 2009. When Mark Miller lost his job in 2010, he became the primary caregiver while also enrolling as a part-time college student.
When Leigh Anne Miller filed for divorce in 2014, Mark Miller was still a part-time student who worked 15 hours a week and shared living expenses with his girlfriend. When the dissolution decree was issued in 2016, the Marion Superior Court found that Mark Miller had been voluntarily underemployed since losing his job and imputed his income at the rate of $600 per week based on his prior earning level and voluntary underemployment.
Thus, Mark Miller was ordered to pay $97 per week in child support. After his motion to correct was denied, Miller appealed, challenging the finding that he is voluntarily underemployed.
Judge Terry Crone, writing for a panel of the Indiana Court of Appeals, said in a Monday opinion the trial court’s finding as to Mark Miller’s underemployment was not clearly erroneous, noting at the time of the final hearing he was a part-time student, but that he is no longer the children’s primary caretaker. Thus, a “reasonable inference can be drawn that the time Father spent in his caretaking function is now available for other purposes, yet he is only working fifteen hours a week,” Crone said.
However, the appellate panel did remand the case to the trial court on the issue of Mark Miller’s imputed income. While the trial court properly considered Miller’s work history and occupational qualifications, Crone wrote that there was no evidence in the record regarding prevailing job opportunities for Miller or earning levels in his community.
The COA’s instructions included the discretion to “reevaluate and adjust other determinations regarding child support in the dissolution decree” after the hearing.