Child support dispute remanded for recalculation of incomes

January 18, 2018

A child support dispute between two Wabash County parents will return to the trial court on remand after the Indiana Court of Appeals found errors in the lower court’s computation of both parties’ incomes.

In Dayne J. Marshall v. Angela M. Marshall, 85A02-1706-DR-1503, Dayne and Angela Marshall divorced in June 2009 and entered a dissolution decree giving both parents joint legal custody of their child, but giving Dayne physical custody. No child support was due at that time.

About one year later, the Wabash Superior Court modified the child support order at the father’s request and ordered Angela to pay $52 per week. Then in April 2016, the mother moved to modify child support again, alleging a change in her circumstances that would warrant a reduction in her payments.

Dayne Marshall filed an affidavit a few months later alleging his ex-wife was in contempt for refusing to pay him $52 a week, resulting in arrears totaling nearly $4,200. Both parties also request attorney fees.

In its June 2017 order, the trial court ordered Dayne Marshall to begin paying $58 per week in child support effective April 2016, while terminating his ex-wife’s monetary obligation at the same time. The court went on to find Angela was voluntarily underemployed and was in contempt for failure to pay child support prior to the termination of her obligation. Her income was imputed at $450.79, while her ex-husband’s was set at $1,608.40 per week, an amount that did not include the “large amounts of overtime” he worked.

Finally, the court denied the mother’s request for attorney fees, and the father appealed. The Indiana Court of Appeals affirmed and reversed in part in a Thursday opinion, with Judge Elaine Brown first writing that the trial court failed to consider Angela’s potential income were she not voluntarily undermployed when it imputed her income.

While the record does contain facts to support the trial court’s finding that the mother was voluntarily undermployed, the appellate court declined to make a finding determining the extent of her underemployment. Instead, the court remanded the case for the trial court to consider her potential income when imputing her income.

The appellate court went on to find the lower court erred by excluding Dayne’s overtime from the calculation of his income. Thus, the case was also remanded on that issue, with instructions to include his overtime and any other additional income “only to the extent the trial court determines the income is dependable based upon the evidence… .”

In a footnote to the Thursday opinion, Brown also pointed to inconsistencies in the reported amount of Angela’s arrearage. The court remanded for clarification on that issue, as well.

Finally, the court upheld the contempt finding against Angela and the denial of her motion for attorney fees, finding she failed to pay her weekly child support obligation and did not provide a reason for that failure. Similarly, her failure to pay her child support obligation supports the denial of her request for attorney fees, Brown said.


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