*1 wеbsite, Reuters and Thomson Court’s order copy of this publish
directed deci- of this Court’s bound volumes
sions.
All Justices concur. SCHWARTZ,
Cortney L.
Appellant/Cross-Appellee/Respondent,
v. HEETER, Appellee/Cross-
Jodi S.
Appellant/Petitioner.
No. 02A03-1109-DR-401. Appeals of Indiana.
Court of
June 2012. Rehearing Decision Clarifying
Order
Sept.
determination Father’s “true up” payments; may, upon II.Whether Mother re- mand, granted relief based previously-filed her Petition Support; for Modification of and ap- III.Whether Mother is entitled to pellate attorneys’ Ap- fees under pellate Rule 66. History
Facts and Procedural Father and Mother were married marriage produced 1992. The two chil- 9, 2008, July dren. On Mother filed IN, Hayes, Wayne, B. Fort Cornelius petition for dissolution of the marriage. Trevino, Bobilya Group Andrea R. Law February parties On entered LLP, IN, Wayne, Attorneys Ap- Fort for jointly into and filed with the trial court a pellant. (“the Marital Settlement Agreement agreement” or “the settlement agree- Shilts, Office, Perry D. Shilts Law Fort ment”), in parties agreed, which the among IN, Wayne, Attorney Appellee. for things, other to a determination of Fa- support obligations. ther’s child In this OPINION regard, agreement provided: BAILEY, Judge. parties The agree required sup- Summary Case port obligation shall be fixed and [Fa- ment the trial court’s order of the settlement Heeter challenging the trial court’s construction of ney’s fees. dissolution Cortney construing (“Mother”). L. Schwartz of his a “true seeking appellate marriage (“Father”) uр” provision summary judg- entered cross-appeals, from Jodi S. appeals attor- week paid bi-weekly) ther] len ties’ minor children into an account created to the following, on an annual this account for County purpose. (or shall $860.00 irregular pay for the The [sic] the sum of every income: to the by two by direct further [2] [Mother] Clerk $430.00 of the par- weeks), basis, deposit of Al- agree per if Up True part, part, We affirm reverse year, At the conclusion of each calendar remand. starting parties’ respec- Issues weekly tive child shall parties present several issues for adjusted by tаking recalculated review, our which we consolidate and re- gross amount their taxable income state as: return(s) year, from their tax for that weeks, dividing using
I.Whether trial court erred it this when it construed the settlement amount at line 1 of the [Child Worksheet], with all agreement’s up” provision Obligation other apply previous year’s factors the same for year’s calculating parties’ adjusted Guidelines for each child weekly Father determined that his pay shall [Father] $579, support obligation for 2009 was the difference between his ad- per multi- which is week more than the obligation, justed $149 $430 agree- weeks, by May weekly payment provided by 52 plied [Mother] *3 forty- Multiplying the difference year. part a of this ment. of each As 1st four, pro- represented shall the number of process, Mother] [Father copy a of the feder- during vide each other with weeks in 2009 which the decree of effect, all along al income tax return at- yielded dissolution was in a “true $6,556. thereto. tachments and schedules up” amount of Father remitted 5, 2010, May this amount to Mother on support methodology is The above Notice of Report filed a to Court and parties the compromise a [sic] 6,May Compliance to this effeсt on 2010. litigation. avoid App. at 31-32.1 11, 2010, her Ob- On June Mother filed weekly
The determination of Father’s
jection
Report
to Court and Notice of
upon
based
support obligation
was
$430
Compliance, in which
stated that Fa-
she
weekly
an estimate of
for Father’s
$5872
complied
provisions
with the
ther had not
income and an estimate of
for Moth-
$500
agreement,
non-compliance
and this
income,
weekly
and was calculated
er’s
arrearage
an
outstanding support
left
Support
Guidelines.2
using
$47,000. Along
Objec-
more than
with the
agreement
incorpo-
The terms of the
were
tion, Mother filed a Petition fоr Citation
into the decree of
of mar-
rated
dissolution
(“the Petition”),
for
which al-
Contempt
riage, which the trial court entered on
leged
20,
February
2009.
agree-
insufficient under the terms of the
alternative,
the
his ment.
In the
Petition re-
early
In
Father
recalculated
weekly
quested
relief
the form of motion for
for
compliance
provision
support
with the “true
of modification of Father’s child
obli-
up”
the
“a
of circum-
agreement
gations
change
for
and used
because of
continuing
formula to make this determi-
stances so substantial and
as to
Guidelines’
upon
prior
of the make the
support
nation. Based
the results
order unreason-
returns,
App.
2009 federal income tax
able.”
at 66.
(The
against
parents.
1. This
was entered into
ad-
income of
function
Mother,
opinion,
”ln(N)”
vice of counsel for
whose
among
operands
indicates that
part
agree-
which formed
of the terms of the
log-
support
to determine
used
natural
ment,
agreement
stated that the
"favors [Fa-
children,
N.)
arithm of Where there are two
ther],
generous
children
is less
to [Mother’s]
multiplied by
the result of this formula is
provide and
than the law would
cause
weekly
support
1.50 to determine the
parties.” App.
annual difficulties between
then
to de-
This amount is
used
Father
entered into the
at 49.
also
obligation
support
termine the child
for the
against
attorney
advice of counsel after his
parent based
such factors
non-custodial
litigation might
lead to a distri-
advised
income,
parental
expenses
as differences
bution of the marital estate more favorable to
time,
during parenting
duplicated expenses,
Father.
premiums.
Sup-
health insurance
Ind. Child
3(C)-(H)
(2009).
port
Using
& 6
2. The
under the
for
formula
2009 Guidelines
Guidelines,
procedure
Fa-
in the 2009
determining
weekly
total child
obligation
ther's recommended
parents’
for one child where the
$402.95;
agreed
greater
weekly
combined
than
would have been
income was
ln(N)
411.24,
x
slightly larger figure
$4000
$430.00.
[89.42443
]
to the
—
weekly adjusted
where "N” is the combined
objection
response
filed
The core of Mother’s
Father
his
Mother’s
“incorrectly
no-
relied
cross-motion for
longer existing Guideline Schedules associ-
reply
in response
to Mother’s brief
to his
Guidelines.”
ated with
summary judgment.
own motion for
Basing
objection
67.
App.
On April
Father filed his Re-
changed support calculations set forth
port to Court and Notice of Compliance,
Guidelines,
ar-
which set forth Father’s calculation of the
gued
that Father’s
аmount he
owed
the “true
gation
proce-
under
Again basing his
on the
calculations
$1,655.93.
*4
agreed-to
dure was
Less the
Guidelines,
Father deter-
amount,
weekly payment
re-
Father’s
$430
mined that his
maining weekly support
under
gation
per
for 2010 was
week. Less
$552
$1,225.93. Thus,
Mother’s calculation was
per
already
week
remitted during
$430
argued
appropriate
that the
“true
Mother
2010, this resulted in a difference of 122
$
$53,990,
up” payment
of which
was
Father
$6,344
up”
per week and a “true
amount of
$6,556,
paid only
of
leaving
had
an arrears
for
payment
2010. Father remitted
in this
$47,388.
judgment
appropriate
interpret
no
and the
therefore
the settle-
question
of material fact
Courts
ordinary
moving
judgment
agreements using
entitled to
as a
ment
con-
party is
56(C).
],
Bailey
A
tract
Mann
principles.
[v.
matter of law.
Ind. Trial Rule
[1215,]
(Ind.2008) Thus,
entry
[
N.E.2d
].
trial court’s
in
goal
interpreting
of courts
a set-
appeal
pre-
‘clothed with
“arrivеs
”
validity,’
party
tlement
is to ascertain and
sumption of
thus
parties’
must
effect to the
intent. See
challenging
judgment
give
bear
Const,
Brandenberger
the movant was
v. E.E.
proving
the burden
Reuille
(Ind.2008).
Inc.,
summary judgment.
888 N.E.2d
Rules
entitled
Williams,
extrinsic
Thus, amount in 2010 for the year the decree of of 2009 calendar court’s dissolution because he marriage provision upon payment the calculated his includes amount parties’ appeal the based the 2009 now centers: Guidelines. Howev- er, the trial court concluded Father’s year, At the of each conclusion calendar 2011 calculation for the “true starting parties’ respec- the for the 2010 year calendar was incorrect weekly support tive child shall again because Father adjusted applied the 2009 ver- by taking and recalculated sion of the the Guidelines than gross amount of their rather the 2010 taxable income return(s) version of the Guidelines. from year, their tax for that weeks, dividing by using it this set of applies Which Guidelines what amount at of the Support line 1 [Child time is of no small event. calcula- Worksheet], Obligation with all other up” tion of his “true for the payment factors the remaining purposes same for year calendar resulted in a recommended of calculating parties’ adjusted the child weekly child obligation for Father support obligation. $579, of or per more week $149 than the App. at 32. provided the agree- $430 settlement (the disagreement Multiplied by ment. forty-four num- centers during ber of weeks in 2009 language, whether the “with all other fac- which the force), agreement tors same was in purposes the of this results in a $6,556. calculating parties’ adjusted sup- up” the “true amount of child Following port obligation,” requires approach applying Mother’s of apply Child week- Guidelines’ version of results in a rec- $1,656, payment thus the amount of the “true of or ommended year a factor the deter- $1,226 given for a more than roughly $430 —is agreement. support obligations. by the mination of Father’s obligation provided forty-four, yields Indeed, this a “true for- Multiplied by the Child Guidelines’ $47,388 $53,499,or of amount are themselves factors under payment mulas definition, A Father’s result. similar dis- colloquial more than as trial courts more calendar for the 2010 re- parity deviating obtains have from the discretion calculating with Father where up” payment, sults of the Guidelines’ calculations $6,344 Mother calculat- payment unjust inap- “the amount is or Guideline $38,376. ing a particular in a case.” Ind. Child propriate 3(F)(2) (2011) (citing Support Guideline party’s argument is the to each Central -2). § I.C. 31-16-6-1 & in the “factors” as used settle- meaning of “fac- ment Father contends agreement. Moreover, agree- this construction of the all faсets of the calculation tors” includes compatible with the ment seems most his child used to determine itself, particu- of the provisions including specified the formula gation, indicating larly light provision Mother contends the 2009 Guidelines. agree- to enter the Mother’s decision en- only includes numbers “factors” advice of against ment was counsel. Support Obligation tered into included Mother’s counsel’s That Worksheets, that the formula but itself opinion up” provision by the among not the factors determined establishing generous as agreement. as would result support obligations Sup- the Child litigation from based word the use of the “factors” We think port Guidelines. re- “with all other factors phrase, same for calculat- maining the Thus, court’s we conclude that ing” obligation, requires against Fa- entry *7 formu- application of 2009 Guidelines’ 2010 regarding ther Mother’s claim properly la—at until Mother seeks least in error. con- up” payment We modification of Father’s child language provision’s strue the gations under Section 31-16-8-16. require application continued of the definitions, many word has but the factor mother properly formula until Guideline directly two definitions re- applicable most support. moves for modification of child late to more use of “factor” colloquial trial agree Because we with the court any the outcome of as fact that bears 2010 “true Father’s result, mathematically spe- more a and the correct, $6,556 por- we affirm that as the meaning cific “factor” numbers granting tion trial order court’s product of a determining calculated in In conform- judgment. Father multiplication. Third New In- Webster’s above, however, reasoning our ance with Unabridged Dictionary ternational we reverse as court’s determi- (2002). 2011 “true regarding nation definition, entry of payment for and remand for each оf the
Under either to- an consistent with our decision used to determine order numbers day.4 amounts—and modify- have the effect of recognize We court’s that decision would the trial decision however, unchallenged preexisting and appears equitable. large, ing more Writ numerous Previously respond Remand under in a reply brief to appellee’s Relief on cross-appeal). Filed Motion contentions for Modification Here, Mother contends that the trial in her argues cross-appeal deny court did not requests to modify may pursuing that she resume modifica obligations. During support obligаtions tion of Father’s child hearing on September concerning filing as of the date of her of the motion fees, motions for attorneys’ responds for modification. Father counsel for Father raised to the trial court already the trial court has denied these disposition of the Petition and Second that, event, in any motions and Mother has contempt, Petition for each of which re- the trial waived court’s consideration of quested in the alternative that the trial these motions. court grant relief the form of a modifica- Appellate require appellants’ Our Rules tion of Father’s suрport obligations. provide cogent argumentation briefs to of The trial court declined to find with designated issues citation to relevant contempt of court. The trial court contin- authorities. Ind. Appellate Rule ued: 46(A)(8)(a). comply Failure to with these respect to the alternative request requirements result the waiver of to modify support ... the Court is not upon appeal. an issue Estate Collins v. modifying support but the request for (Ind.Ct. McKinney, 936 N.E.2d relief that the Petitioner has asked for App.2010), trans. denied. The same re has been through addressed the Court’s brief, quirements apply appellee’s tо an ruling on the motions for summary judg- 46(D)(2), language of Rule ment but I’m I denying, will technically requirements states the for an appellee’s deny both. brief on cross-appeal, echoes that of Rule 46(A)(8): Appellee’s Brief shall con “[t]he Okay, denying so Court those any appellee tain contentions the raises on pleadings and then issue cross-appeal why as to the trial court or request is the for the of attor- Agency Administrative committed revers ... ney fees ? 46(D)(2); App. ible error.” R. App. R. cf. Sept. Hrg. Tr. at 8-9. 46(A)(8) (providing Argument that the sec Counsel for Mother then inquired, “you appellant’s tion of an brief “shall contain *8 are denying request that [Father] the Appellant’s why contentions the trial 9, not found in contempt?” Sept. 2011 court or agency Administrative committed Hrg. Tr. at 10. The trial court confirmed error”). Moreover, reversible this Court afterward, Immediately this. counsel for previously applied requirements has asked, “[a]nd alternative is as appellant’s response for an to issues raised you already spoken,” have to which the cross-appeal on in a similar manner to the answered, 9, court Sept. Hrg. “Yes.” requirements of an appellee’s response to Tr. at 10. The trial court then heard an aрpellant’s arguments. See In re Rid argument from the parties about other dle, 61, 946 N.E.2d 70-71 (Ind.Ct.App. pending parties’ requests motions and the 2011) (applying prima error stan facie attorneys’ for fees. review, ordinarily dard of used when an appellee respond does not to an appellant’s upon Based this exchange, we conclude brief, in appellant a case where the failed that the trial court ruled on Mother’s al-
support arrangements through operation of law. meritlessness, replete an appeal relief Petition with request for
ternative harassment, by denying faith, frivolity, hеr suc- Petition bad vexa- Second modification of Fa- requests tiousness, for purpose delay.” cessive or Trost- During Sep- 500, Steffen, ther’s v. 772 N.E.2d Steffen 2011, hearing, Mother did tember (Ind.Ct.App.2002), trans. denied. judgment order that argue “However, we must use extreme re it her incorporate within alterna- did not exercising straint when our discretion also did not for relief. Mother tive basis ary appeal to award on power damages the trial court withhold its request potential chilling effect because for the motions modification ruling on right appeal.” the exercise of other evi- presentation pending Id.
denсe. (Ind. Estes, Gertz v. N.E.2d reopen the trial now seeks
Mother Ct.App.2010). requests, stating on these court’s decision say appeal We cannot Father’s subsequent “the denials only that Court’s “ meritlessness, faith, ‘replete bad with effort to [Mother’s] of ‘motions’ related to harassment, vexatiousness, frivolity, or contempt found in two have [Father] purpose delay.’” (quoting Id. Trost- Appellee’s Br. at 23. separate pleadings.” 514). Indeed, Steffen, N.E.2d our authority or cogent citation to ar- Without agrees arguments with decision baldly asserts gument, Mother on issues not Mother’s substantial ar for evidence to case “should remandеd then, not, guments. Mother is entitled to Modify presented Motion [her] appellate attorney’s Appellate fees under Appellee’s June 2010.” Br. at filed on Rule 66. Conclusion disagree. Because Mother has We The trial court’s construction comply Appellate Rule failed to erroneous, “true up” agreement was 46(A)(8), argument on this matter is entry judgment thus of summary its Moreover, waived. it seems clear to us partially in error as to Father’s “true up” request trial court has denied the that the not, for 2010. Mother leave it to for modification. We the trial remand, rulings seek from the trial court then, court, to determine whether it will prior on her motions for modification of hear reconsider that decision and evidence Finally, support obligation. we requests. on Mother’s deny request appellate Mother’s attor- Appellate Request Mother’s ney’s Appellate fees under Rule 66. Attorney’s Fees part, part, Affirmed reversed Finally, requests appellate remanded. attorney’s cross-appeal. fees in her Our *9 provide “may rules that we as appellate ROBB, C.J., concurs. petition, if damages appeal, sess an or motion, response, or is frivolous or in bad MATHIAS, J., part concurs in and Damages be in the faith. shall Court’s in part. dissents may attorneys’ discretion and include fees. MATHIAS, J., concurring part in and The shall remand the case for exe Court dissenting part. in 66(E). R. App. cution.” interpreta- I the appellate attorney agree
An award fees “is with trial court’s discretionary par- tion of the and be ordered when of the argues I Mother agreement, proper marital settlement that the formula to ties’ majority applicable from the with be used is the one which is in respectfully dissent regard year performed to this issue.5 the the calculations are made, and the up payment е.g., true the of the settlement portion The 2010 Guidelines formula is to be used to provides: at issue determine the 2009 true up due year, the conclusion of each calendar At and the 2011 Guidelines formula is to be parties’ respec- the starting up used to determine the true due weekly tive child shall court, adopting 2011. The trial neither adjusted by taking and recalculated party’s position, proper concluded that the gross of their taxable income the amount formula to be used is the one that was return(s) year, tax for that from their applicable during year for which the weeks, dividing using it this due, up year true not it wаs amount at line 1 the CSOW [Child payable, e.g., the 2009 formula for the 2009 Worksheet], Obligation with all up payment, true and the 2010 formula for remaining the same for other factors up payment. the 2010 true calculating ad- parties’ justed support child Father, The majority agrees with con-
cluding that formula be used to calculate the “true is a “factor” that Appellant’s App. p. 32. pursuant must remain the same to the explained by majority, the formu- As me, language agreement. To this calculating support la for child under the “factor,” misuses the word within the con- Guidelines was subse- text of the lan- agreement. relevant in a manner that quently changed would guage of the agreement provides that the larger a much obli- lead to actual income for the is, gation using for Father. That the for- at issue will be calculated based on their Guidelines, mula from the 2009 tax returns and that this amount will be up payment 2009 true would be the rela- Sup- used “at line 1 of the [Child CSOW $6,556. However, tively modest sum of Worksheet], port Obligation with all other using the formula from the 2010 Guide- remaining Appellant’s factors the same.” lines, up Father’s true is the App. p. 32. I think it clear from $53,940.92. larger Similarly, much sum of structure of this sentence that the other applying the 2009 Guidelines formula to “factors” that will remain are the same up payment calculate Father’s 2010 true other go calculating variables that into $6,344. using in a total of But results amount, up true the child obli- from the 2010 would formula Guidelines6 gation or worksheet formula itself. $44,720 up payment result a true argues phrase that the “with all It is clear that the intended to “adjust sup- factors other same” means recalculate[ ]” year, formula must be of each port the end they unless and until his are to commended on their fore- applied sight making provisions court. to do so. gation Ap- is modified Although appellate effective Jan- I do not find Father’s 6. The Guidelines were amended *10 argument persuasive, to be I concur with the uary appear not to have been and majority’s conclusion that Mother is not enti- amended since. attorney appellate fees. tled to However, in grant trial court’s the formu- App. p. 32. pellant’s the child adjust respects. and recalculate all la used to the formula should be support obligation BAILEY, Judge. during the earned
applicable to
income
the trial court held.
year, precisely
that
as
OPINION ON REHEARING
anticipate
did not
Perhaps
parties
the
(“Father”)
true up
appeal-
calculate thе
L.
Cortney
the formula used to
Schwartz
But if Father
change
in the future.
might
entry
the trial court’s
ed
at
to freeze his
intended
a “true
judgment construing
level,
certainly this intent
then
in
marital
relating
support
to child
dis-
And if
explicitly.
have been stated
should
into with
agreement
solution
he entered
anticipate
possibili-
did not
(“Mother”).
in her
Jodi S. Heeter
change, then the
ty
might
that the formula
cross-appeal argued that she was entitled
any
risk of
who should bear the
party
reopen
modify
sup-
to
motions to
Father, not the children.
change should be
in
re-
port obligations.
part,
We affirmed
Indeed,
kept
doing
it should
mind that
remanded.
In
рart,
versed
money
so,
at issue is not for the benefit of
we concluded that Mother waived her
Instead,
merely the
Mother.
she is
trus-
on the motions for modification
arguments
benefit
payments
tee of the
use and
Heeter,
Schwartz v.
appeal.
See Straub v. B.M.T.
of the children.
(Ind.Ct.App.2012).
Because I with the trial court’s issues,
resolution of the I would affirm the