*1 co, straining credulity process in the THOMPSON, stretching legal Marriage re J.
fabricating legal theories In Gloria Id. at 31. beyond any Appellant-Petitioner, reason.” concepts note, he of what goes on to make Catellier reason- of the Court’s calls “the machinations
ing[.]” Id. These statements do not amount THOMPSON, Appellee- Gerald Morton, argument. appellate proper Respondent. accusatory resem- statements we condemned 34A02-9804-CV-319. No. brief, noting bling those found Catellier’s appro- is not an appellate “the that process Appeals of Indiana. Court types accu- of blanket priate forum for these sations, are under and the accusations 19, 1998. place any to be used ... circumstances ' the merits.” 682 N.E.2d arguments on appellate brief demon- Because Catellier’s through fla- procedural faith
strates bad content disregard for the form and grant rules, Depeo’s appellate our requirements of grant- appellate fees is request for however, note, submit- brief ed. counsel, prepared his ted Catellier was responsible violating our who alone is warranting an appellate rules to an extent appropriate attorney fee It is award. appellate attorney against fees be assessed 15(G); counsel. Rule
Catellier’s
Young,
We remand cause ap- instructing it to calculate the amount of Depco is entitled to pellate fees the trial court recover. We further instruct amount in favor to execute the calculated Depco against Catellier’s counsel.
Affirmed.5 FRIEDLANDER, JJ.,
HOFFMAN concur. rules). Morton, appellate we advised court’s are of the fact that this
5. We mindful vio appeal “flagrant counsel has Catellier’s counsel that violations of Catellier’s Morton, rules. See ap- lated our can result in waiver an rules (noting Catellier’s N.E.2d at 1298-99 n. 1 peal!.]” at 1299 n. 1. Catellier’s counsel, appellant, representing who counsel is so advised. portions comply particular failed to *2 Leicht, Noel, Kokomo, Donald C. Noel & Appellant-Petitioner. Bolinger, Michael 0. Bolinger Bolinger & Kuntz, Kokomo, Appellee-Respondent.
OPINION
SHARPNACK,
Judge.
Chief
appeal
This ease comes to us on
after
original appeal,
remand.
In the
Gloria
(Wife)
Thompson
appealed the trial court’s
denial of her
motion for award of trial
appel-
late
In a memorandum deci-
sion, this court
reversed the
court’s
denial of her
to modify support, re-
instructions,
manded with
and affirmed the
denial of her
fees.1
this second
Wife raises two issues for
review,
our
which we restate as:
1)
complied
whether the trial court
this court’s instructions on
remand
9,1997).
Thompson Thompson,
1. See
No. 34A02-9705-
CV-269,
(Ind.Ct.App.
reconsider respondent. wages of the appellee, Ger- and bonus (Husband), deny motion to from its cal- decision Thompson ald that, income; court stated gross correct error the trial culation of *3 in given wide discretion ‘[t]he Court it 2) the court erred when whether trial - the calculation deciding or not whether new Wife’s denied overtime not be based on should or should attorney fees. However, the trial Record at 49. income.’ part, re- part, and affirm in reverse order, 22, in its November mand with instructions. over- even mention the husband’s failed to in our facts note the as stated We first any give not rationale pay, time and did previous memorandum decision: the final calculation its exclusion from total ” 22, 1996, court “weeklygross the trial “On November income.’ . sup- the wife’s denied 34A02-9705-CV-269, slip op. Thompson, No. Although proceedings were port. the 3-4, (Ind.Ct.App. October at recorded, the the reflects record 9, 1997). decision, we held that that the hus- aware of the fact judge was Support “the Child Guidelines Indiana significant overtime and bonus band had start clear that a trial court must make it support two child pay. The wife submitted weekly gross figure income which with a 22, court on November worksheets the pay. If a court makes overtime includes the hus- stated 1996. The worksheet any portion of to exclude determination as weekly figure gross income band’s “weekly gross pay final from the overtime $762.00, pay of represented the base which state, on the figure, the court must income’ second worksheet stat- the husband. The record, for the exclusion.” its reasons weekly gross income the husband’s ed remanded Consequently, we Id. 5. $1,799.00,which included over- amount as reconsider for the court “to instructions pay. bonus time and order, to exclude and if it elects 22, 1996, Therefore, when on November all, any portion of husband’s overtime the ‘weekly that the income’ the court found ‘weekly gross fig- income’ pay its final from from increased the husband had ure, for the decision it must state its reasons per week June of 1995 $739.00 on the record.” Id. 22,1996, per week as of November $761.00 remand, again chose to the trial court On obviously excluded husband’s it exclude Husband’s pay from its calculation. overtime following reasoning: gave the 22,1996, the court did On November in June of “Support was modified for its of over- any state reasons exclusion support was increased to at which time hus- pay from its calculation time per by agreement week $150.00 fact, weekly band’s parties. the existence not even mention did time, [Husband’s] Since that pay. overtime gross income has decreased $1799.00 17, 1996, wife’s On December per per week. Said week from $1926.00 correct error. Submit- filed her motion to by figures [Hus- include amounts received from the with the motion was a letter ted and overtime work. bonuses band] clerk, payroll August dated husband’s time, period During [Wife’s] same included the husband’s 1996. This letter weekly gross income has decreased from earnings year-to-date, for 1996 total per per week. week to $399.00 $383.00 wages cluding all bonuses before it The Court has no evidence paid. reasoning forming the basis relative to the parties’ agreement regarding sup- of this the wife’s motion When the court denied 6, 1997, reached February port, which was error on to correct safely it can be assumed any over- evidence of Gerald’s stated all or most of agreement discounted such pay was irrelevant because time commentary bonus [Husband’s] and overtime income first notes that overtime and support obligation as “irregular inasmuch bonus income can be nonguar- higher have much if said been income has difficulty accurately anteed causes been considered [sic] determining gross income a party.” support guidelines ap- had been Ind. commentary Child Guideline plied. 2(b). commentary The further notes that reason, type while this
For this the Court declines to includable income, use total such very overtime and bonus income of inclusion is “also [Hus- fact deciding examples band] whether or not sensitive.” Id. Some of factual agreed support order should be modified.” warranting provided situations consideration commentary include downturn in the Record, pp. 44-45. Wife then initiated this *4 economy, working sixty hour weeks for short appeal. periods time, part-time or work taken to I. pay specific a bill. Id. Each of these situa- may tions part warrant exclusion of or all The by first issue raised Wife is whether the additional income because it is unreliable complied with this court’s in- require or would a to party heavy a maintain structions on to reconsider exclu- remand the work support obligation. schedule to meet a sion Husband’s in- commentary The weekly gross underlying come from its calculation indicates the Specifically, philosophy respect to type she asserts that the this of in- given by states, reason excluding the trial court for come it when be “[c]are should taken the additional support income was insufficient. We to set upon dependable based agree. come, while at providing the same time chil- support dren they with the to which are appears It that the court de Id.; Mullin, entitled.” see also Mullin v. cided because the had excluded 634 (Ind.Ct.App.1994) N.E.2d 1342 by agreement the additional income and be (adopting language this from the commen- cause no change there been substantial tary). From this in discussion the commen- time, in the party income of either since that tary, is it clear that the decision upon appropriate, it was Wife’s 1996 or overtime bonus income centers around the support, for modification for to continue to dependability of such income. It is also clear exclude the overtime and bonus income. As that if dependable, the income is it should not by noted reasoning the behind be proper excluded without consideration. excluding the agreement extra income “Judges practitioners should be innova- apparent 1995 is not from the record. How finding ways tive in to include income that ever, reviewing Support after the Child have family would benefitted the had it re- policies Guidelines and underlying intact, receptive mained but be to deviations support, calculation we conclude that justify where articulate reasons them.” exclusion of bonus and overtime 2(b) Supp.R. 3, commentary (emphasis Child weekly gross justified income is not added). parties previously agreed mere fact that the arrangement.2 to such an making Without a supports Case law also idea that exclu- determination as to whether the additional sion of overtime be income should based appropriately this case was exclud upon dependability. example, For Carter ed, we conclude that the trial court abused Morrow, v. we held that trial court com- its discretion in continuing exclude the plied support guidelines with the when it gave income for the reason that its excluded husband’s overtime income because decision. uncertainty where record revealed commentary We first turn to industry that husband in the worked auto subject the Indiana Child periodic Guidelines. The which is economic down- Bussert, especially given parties may 2. This is true entilled. (Ind.Ct.App.1997), Bussert N.E.2d away not contract to which child a trans. denied. Morrow, Wife asserts turns. Carter v. denying her new (Ind. the trial court erred Ct.App.1990). 186-187 attorney In her appellate for brief, regarding the facts concedes that she commentary and thrust of the The parties’ income are same and relative trial court’s discre cases is that the related facts to her relevant that the additional and bonus income excluding tion present argument the Trial Court’s “concern in that the grounded in a determination Ap for disparate treatment of Motion [her] place dependable come is ... Attorney pellate [Husband’s] Fees maintain. There parent on a hardship ” Attorney Request Fees.... that, fore, articulating in addition to we hold words, brief, p. she Appellant’s other income, excluding type its reasons court abused its dis contends that the trial reasoning indicate the trial court’s must denying summarily cretion in in‘light made the determination hearing fees without principles. above discussed hearing peti on granting a Husband’s while deny Here, fees before the trial court’s decision does tion for petition. Wife no dependability ing his cites it considered the indicate that *5 bonus, authority for the trial her contention and of Husband’s overtime required hearing on a court is to hold a Therefore, we the trial court’s exclu- reverse such, petition attorney fees. As for to of the income and remand sion additional review this contention. she has waived again con- court instructions to with 8.3(A)(7); Berger v. Ber Ind. Rule whether sider Husband’s 378, (Ind.Ct.App.1995). ger, 648 N.E.2d 381 his income should be. excluded light of the above discussion. gross income notwithstanding, we Waiver hold trial require will Such a determination that it was not an abuse discretion for the inquire as to the nature of court to summarily deny petition. to her trial court as to evidence additional income and hear § allows the trial Indiana Code 31-1-11.5-16 necessary Again, a such determination. party court to to a reasonable order in- court if the trial decides party cost the other amount for the come, in the rec- it must articulate reason proceeding maintaining defending any ord, comport with such reason must also and marriage connection dissolution. with principles Guidelines.3 This attor includes the award reasonable Sovern, 563,
ney v. Sovern 535 N.E.2d fees. reh’g II. The tri (Ind.Ct.App.1989), denied. making has such al court broad discretion The next issue raised whether we will not such an an award and disturb peti- new court erred when denied Wife’s absent an abuse that discretion. award In fees. her tion (Ind.Ct. Scott, 691, 709 v. 668 N.E.2d Scott argued that the trial court erred Wife App.1996). making an attor When award of appel- by denying petition for trial and fees, ney trial must consider argu- response In to her late fees. parties, their economic con resources ment, noted that “the trial we dition, engage ability of the of the familiar with circumstances was employment to earn gainful adequate case, by denying trial exercised its discretion income, and factors that bear such on the wife.” appellate attorney fees to Lewis, of the award. re reasonableness 34A02-9705-CV-269, Thompson, slip op. No. (Ind.Ct.App.1994). 638 N.E.2d held Accordingly, 1150. we of her note that the court was the trial court’s denial incomes parties’ respective Id. well aware of the not an abuse discretion. case, Wife unwritten rule aside from the circumstances of 3. Wile also asserts there an County and, policy in Howard that overtime bonus offers no evidence that such a exists always weekly gross in- excluded from thus, come is come in we decline to address this contention. calculating support. and other relevant circumstances. Given the broad discretion of the trial court in award- Marriage Doyle DILLON, re the E. fees,
ing attorney we conclude that the trial Appellant-Respondent, eourt not abuse did its discretion sum- marily denying Wife’s without a DILLON, Scott, Appellee-Petitioner, M. Janet
hearing. See
For the we affirm in part, part, reverse and remand with in- structions. part, part,
Affirmed reversed in remanded instructions. FRIEDLANDER, J., concurs.
GARRARD, J., sep- concurs in result with opinion. arate GARRARD, Judge, concurring in result.
I concur in the result reached the ma- jority. If we were consider Indiana *6 31-16-8-1(1), §
Code I would conclude that satisfactorily explained its de- cision to exclude overtime and not (2) per- award. subsection upon mits showing par- modification that a ty has been ordered to an amount that guideline
differs more than 20% from the amount and the order is more than 12 months old. previous
Here the order entered in potential inclusion of overtime and bonuses create a deviation more than I agree major- 20%. therefore with the
ity analysis proper. it calls for is
I concur in concerning its determinations attorney fees.