In Re: The Paternity of Jo.J., J.W.J. v. D.C.
992 N.E.2d 760
Ind. Ct. App.2013Background
- Parents litigated paternity/child-support for several years; appellate remand required recalculation of Father’s income and support after this Court found errors in the trial court’s 2010 income determination.
- While Mother’s appeal was pending, she sought a "temporary" support order; the trial court held a combined compliance/contempt and temporary-support hearing on May 25, 2012.
- Father, a commissioned salesman, had a history of underreporting income, using corporate arrangements and cashing assets, paying minimal weekly amounts, and accruing arrearages; evidence showed recent commission advances and cash receipts.
- On June 14, 2012 the trial court found Father in contempt, ordered 30 days incarceration (with release conditioned on posting a $6,070 cash bond) and prospectively modified weekly support to $252.52; formal written orders issued June 21, 2012 after the Supreme Court denied transfer.
- Father moved to correct errors and appealed, challenging (1) the court’s jurisdiction to hear Mother’s temporary-support request while appeal pending, (2) calculation of both parents’ incomes and the new support amount, (3) contempt/incarceration and the prospective bond, and (4) denial of appellate attorney fees.
Issues
| Issue | Plaintiff's Argument (Mother/State) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Jurisdiction to enter temporary support while appeal pending | Trial court could act prospectively after remand/recertification and hear separate petitions; temporary relief was to bridge to final ruling | Trial court lacked subject-matter jurisdiction to modify support while Mother’s appeal (transfer) was pending; hearing was premature | Court: Although request was premature, final written modification was issued after transfer denial/recertification, so modification was proper prospectively (Harris distinguished) |
| Calculation of Father’s and Mother’s income and new support amount | State/Mother argued for attributing higher income to Father based on advances, expenditures; Mother’s reported income supported $379/week | Father argued trial court miscalculated and improperly imputed income, relied on averages and unsigned worksheets | Court: Trial court did not abuse discretion imputing income to Father (history of underreporting, expenses) and adopting $379/week for Mother was supported; deviation to $252.52 was within discretion to reach just award |
| Contempt incarceration and requirement to post bond for future support | Contempt and bond were coercive measures justified by Father’s willful nonpayment history; statutes authorize security for future support | Father argued incarceration improper because he was current when order entered and prospective prepayment is impermissible gratuity | Court: Evidence supported willful contempt and incarceration as coercion; statutes permit security/bond to guarantee future payments, so bond was lawful |
| Appellate attorney fees | N/A (Mother/State sought enforcement and support) | Father requested appellate fees but provided no authority or developed argument | Court: Request waived for lack of cogent argument/authority; request denied |
Key Cases Cited
- McGinley-Ellis v. Ellis, 638 N.E.2d 1249 (Ind. 1994) (standard of review for child support orders)
- Harris v. Harris, 800 N.E.2d 930 (Ind. Ct. App. 2003) (premature modification petitions may be cured if court does not invoke jurisdiction; cautions against retroactivity)
- Pettit v. Pettit, 626 N.E.2d 444 (Ind. 1993) (incarceration permissible for willful failure to pay support when obligor can pay)
- Glover v. Torrence, 723 N.E.2d 924 (Ind. Ct. App. 2000) (imputing income based on expenses and in-kind benefits; discretion in irregular-income cases)
- Matson v. Matson, 569 N.E.2d 732 (Ind. Ct. App. 1991) (regularity of support payments is as important as total amount; caution against applying payments prospectively)
- Griswold v. Savage, 569 N.E.2d 970 (Ind. Ct. App. 1991) (trial court may require creative guarantees/security to assure future support)
- Marks v. Tolliver, 839 N.E.2d 703 (Ind. Ct. App. 2005) (contempt purge: contemnor should be able to purge by paying arrearage; due-process concerns in future incarceration orders)
- Elliott v. Elliott, 634 N.E.2d 1345 (Ind. Ct. App. 1994) (upholding imputed income above reported amount when evidence suggests underreporting)
- Walters v. Walters, 901 N.E.2d 508 (Ind. Ct. App. 2009) (trial court may rely on averages between parties’ figures when supported by record)
- Cobb v. Cobb, 588 N.E.2d 571 (Ind. Ct. App. 1992) (unsigned/unverified worksheet cannot alone support modification inconsistent with testimony)