*1 they Hopkins' house after Hopkins inside II con- dealing in a schedule for conviction pharmacy and listened to from the arising November returned from the substance trolled pills. then Hopkins count out the Walters reviewing a claim of 5, incident. When gave him and Frederick re- met with Frederick evidence, we do not sufficiency Pharmacy bag containing Fagen credibility of the white judge the weigh or the evidence 816, This State, pills and the excess $79.00. 240 Vicodin v. witnesses. Jordan jury's sufficiently supports the de- evidence to the (Ind.1995), look reh. denied. We knowingly and in- Hopkins termination inferences and the reasonable evidence tentionally a schedule II controlled Id. The delivered support the verdict. therefrom 5, 1998. if there exists will be affirmed conviction on November substance jury from which a probative value evidence of Accordingly, affirm the trial court's beyond guilty the defendant could find finding Hopkins guilty of two judgment doubt. reasonable II controlled dealing in a schedule counts is no evidence Hopkins argues that there supra,; in I and as indicated Issue substance intentionally knowingly and prove that he imposition court's reverse the trial Frederick. tablets to Vicodin delivered this cause sentences and remand consecutive presented at evidence contends that He Hopkins' sentence. reconsideration of for he question of whether presents part, part, and Affirmed in reversed Frederick substance to a controlled delivered remanded. prescrip- merely Frederick's own returned tion. RILEY, JJ., concur. HOFFMAN and Inp.Cop® 35-48-4-2(a) that a provides § intentionally knowingly de- and person who substance classified
livers a controlled II dealing in a schedule II commits
schedule Imp. substance, felony. a class B controlled Cop® 35-48-1-11(19983) delivery as § defines from one transfer
"an actual or constructive
(1) sub- of a controlled person to another
stance, agency Larry SCOTT, Appellant-Respondent or not there is ..." relationship on reveals that A review of the record SCOTT, Appellee-Petitioner. 1998, mem- Frederick met with November No. 36A05-9506-CV-216. force, given drug task was bers of the Hopkins to then traveled with $400,00, Appeals Indiana. Court Point, Pharmacy Fagen Crown Hopkins that he and He testified Indiana. 25, 1996. June Hopkins pharmacy into the where went pills. They returned to bought the Vicodin pills Hopkins took the
Hopkins' home where bottle, dumped them prescription
out Pharmacy bag, Fagen
back in to the white bag. Frederick Frederick the
and handed
left, pills over the police, and turned met Terry Fagen pharmacist, Cos- and $79.00.
takis, pharmaey's pre- that the also testified
scription show that on November records exchange Hopkins paid $321.00 Finally, David pills. Officer
240 Vicodin
Walters, drug task project director
force, body through wire indicated Frederick, he heard Frederick
worn
§93 *4 Naney Endsley, Indianapolis, Appel- for lant. Vance, Sey- E. Phillips,
William Vance & mour, Appellee. denied, reh'g de (Ind.Ct.App.1991), trans.
GPINION First, consider whether the evi nied. we SHARPNACK, Judge. Chief findings. determining supports the dence the trial court's child appeals Scott erroneous, findings clearly are whether of assets support award and the distribution findings liberally construe the proceedings against his in the dissolution Progress judgment. Citizens Co. v. wife, Larry raises four issues Seott. Co., James Held & O. as the fol- review which we restate for our clearly (Ind.Ct.App.1982). findings are ® lowing five issues: only when a review of the record erroneous the doctrine of collateral es- 1. whether firmly us convinced a mistake has leaves from toppel prevented Calandro, de- Cooper made. been Larry's potential denied, income in ac- termining reh'g (Ind.Ct.App.1991), 444-445 Support with the Indiana Child cordance denied. trans. Guidelines; Next, determine whether required to the trial court was findings support judgment. judgment A obligation Larry's support deduct unsupported when erroneous security disability benefits which social findings of fact and conclusionsthereon. Larry's son received as a result *5 DeHaan, 1315, v. 572 N.E.2d 1320 DeHaan disability; denied, (Ind.Ct.App.1991), reh'g trans. de provided an 3. whether the standard, applying In we neither nied. award; adequate basis for its child judge reweigh the evidence nor the credibili trial court failed to make 4. whether the Ivy Knoll ty of the witnesses. Donavan v. just distribution of the and reasonable (Ind.Ct. 47, Apts. Portnership, 537 N.E.2d 50 property; and marital Rather, App.1989). we consider the evidence its dis- 5. whether the trial court abused judgment supports that the and the reason attorney's by awarding fees to cretion Id. to be drawn therefrom. able inferences Sharon. Finally, judgment of the we must affirm the points incon trial court unless the evidence part, part, in and re- affirm reverse
We trovertibly opposite conclusion. mand. judgment facts most favorable to the The I Larry Au- and Sharon married on follow. 31, marriage,
gust During 1975. by Larry challenge raised The first Ryan and couple had two children named erroneously caleu- is whether the trial operated Larry owned and Scott Nathan. income, in turn was lated his which Service, lot, since 1973. & a used car Sales the child award. used to calculate 1981, Larry in an accident and was burned governed by the support orders are Child Guidelines, degree on more than suffered third burns and Support Child Rules Indiana body. Larry of his continued one third statutory our framework. which are based on also, 1, commentary; own the business. Supp. see See Child 31-1-11.5-11(c). § An award of Ind. Code 16, 1994, petition filed a On March sound dis- is committed to the 28, February marriage. On for dissolution of not be of the trial court and will 'eretion 1995, findings of trial court entered its clearly erroneous. Carr overturned unless for the dissolu- fact and conclusions thereon (Ind.1992). Carr, 943, An 600 N.E.2d of child marriage, the amount tion of it is clearly erroneous when order is Lar- distribution of assets. support, and the | logic of the facts and against and effect ry appeals. now reviewing court. cireamstances before Review Standard of Ellis, McGinley-Ellis v. court's reviewing the trial When (Ind.1994). thereon, findings fact and conclusions & apply a step establishing a child standard of review. W two-tiered first Mink, weekly Equip. Co. v. support award is to determine W proceed- testified at the dissolution so, gross parent. To do income of each guidelines, provide in ings disability payments are bound were his part: However, sole source of income. he still Weekly Gross Income at
"1. owned the business time. Notwith- Definition of Guidelines, purposes For of these testimony, standing 'weekly gross income' is defined as actual capable earning found was weekly gross parent income of the if em- money ownership additional based on his ployed capacity, potential full income if The trial court business. determined unemployed underemployed imput- and or generate profit the business could upon 'in-kind bene- ed income based providing income to because: fits.... operate "The Husband has continued Self-Employment, Expenses, 2. Business Service, ostensibly Seott Sales & at a nom- Payments Related Issues. In-Kind loss, profit inal or at a back to least Weekly self-employ- Gross Income from year the earliest addressed ment, operation of a business ... is de- presented. finds evidence The Court gross receipts ordinary fined as minus the success or failure of the business de- necessary expenses. general, these pended upon primarily the Husband ef- types expenses of income and from self- forts, despite assistance contributed employment operation of a business point Wife. He testified that from some carefully should be reviewed order that long separation the deductions be time not restricted reasonable before the out-of-pocket expenditures necessary for parties, operated he has as an the business production of ... income. Ryan, partnership informal with the oldest Ryan parties, selling son. of the with Unemployed, Underemployed, and Po- *6 parent voluntarily If tential Income. a is majority vast of the automobiles and the unemployed underemployed, sup- paying Husband the bills. The Husband port shall be calculated based on a deter- arrangement testified that this tois assist potential A mination of income. determi- Ryan paying college for his education. potential nation of income shall be made However, Ryan's resides with [sic] his determining employment potential and mother and without brother contribution to probable earnings level based on the obli- college expenses room and board and his gor's history, occupational qualifica- work are, essentially by ... paid gifts from tions, job prevailing opportunities, and paternal grandparents. seeming- This community...." earnings level in the ly testimony inconsistent is reconcilable 3(A)(I-8). Supp. Child G. only by finding paid that the Husband has 1981, Larry In was burned in an accident business, the overhead of the exclusive of degree which he received third burns on goods by Ryan, cost of sold and both approximately body. 35% of his The burns Ryan the Husband and have traded and severely Larry's limited use of his left hand location, keeping sold vehicles at the each arm, movement, and limited his neck and profit for himself the net from the sale of sensitivity caused extreme to heat and cold. purchased vehicle or traded for and accident, of as result the Social subsequently sold him. ("SSA") Security Administration determined Whether or not the Husband has mini- began was disabled and to for mized his own sales marital since the situa- security disability payments ward social worsened, resulting separation tion and Currently, Larry per him. receives $693.00 dissolution, attributing most of the addition, Nathan, Larry's young month. son, Ryan paid sales to as he payment per est receives a of the overhead $178.00 business, Larry's disability.1 ques- month as a result of associated with the is a fair son, Ryan, similarly age. oldest received dis- ability payments eighteen years until he turned net the business band's expressly resolved cannot be tion which from weekly wages equal roughly presented. the evidence Wife's giving all due con- employment, her # # # from # x # partnership sideration to the informal is that contention The Husband's Ryan." with no net value and has little or real estate added). 16-17, Record, (emphasis Ac- pp. best, is, a break even business that the cordingly, the trial court calculated However, he is adamant proposition. per income at week. $300.00 being awarded the real estate about con- the trial court acted first The evidence maintaining the auto sales. in- imputed potential trary to law when adept young Ryan has been shows second, that the trial court to him and come businessman, accumulating ten unencum- each imputed too much income. We address own, paying his own of his bered vehicles in turn. of these contentions expenses, and ac- transportation and other worth, gifts cumulating a net exclusive Authority to A. The Trial Court's approximately grandparents, from his Income Calculate Potential $30,000.00, largely couple last over the Larry argues going high school and years, all while to him based improperly imputed income only evenings working on college and potential profitability of the busi upon the summarized The Husband's weekends. argues that the trial court was ness. He show a reason- and undocumented records calculating potential prohibited quarter of 1994 profit in the first able 3(A)8) Supp. because pursuant Child (even the annual in- payment full after and, therefore, not "voluntari he is disabled during quarter) and premium surance underemployed as a mat ly" unemployed or year, dur- for the remainder loss law. characterizes ter of inexpli- that he ing which time he contends "impermissible collateral action as an court's essentially he cably sold vehicles for what that he is on the SSA's determination attack" them, contrary logic and the had in disabled. op- periods of other documented results Lar- specifically does not address eration. engaged ry's that the trial contention that the Husband's evi- The Court finds *7 impermissible collateral attack an rejects his con- dence is not credible and Instead, she claims determination. SSA's unprofitable. is tention that the business produced at trial demonstrated the evidence against Construing evidence the Husband's Larry re- worked at his business. She light favorable to the him and in the most 3(A)(2) Supp. to her lies on Child G. Wife, Operating appear from the it would great court has dis- that the trial contention quarter of 1994 that for the first Statement self-employed spouse's a cretion to evaluate generating capable of net the business on the evidence. As financial situation based taxes, in of profit, prior to the order result, trial court a week, approximately per net $400.00 a reasonable level of properly established $20,000.00 year. An rock- per absolute Larry's it found income for because assumption would be reasonable bottom poor profitability respect with to the evidence wage, or equivalent of minimum the business not credible. of Allowing possi- for the per week. $174.00 unique Initially, note that this case is bility quarter first of 1994 was that the in- imputed potential giving the trial court good quarter, consid- because exceptionally as a self- on his status re- come to based Ryan's sales and financial eration to cases, many trial site, spouse. In choosing employed sults at the same a calculation, court calculates the remain within the extremes for voluntarily unemployed or to be per spouse found something in the order of $300.00 cases, the trial underemployed. In other week, equal to the roughly amount or an fi- self-employed spouse's a con- court examines wages, would be a reasonable Wife's capacity and determines Hus- nancial The Court that the clusion. finds 698 parent taking job paying from a lower in
spouse has minimized income an effort to significant support. payment avoid payment significant avoid the support." present a case is unusual because involves Taking provisions together, these self-employed spouse possibly who minimized trial court was authorized to evaluate the paying his sales at the business to avoid profitability Larry's im- business and to result, support. more child As a pute income therefrom. guidelines govern court combined the Having determined that had self-employed spouse gov- a with those which income, general authority impute voluntarily unemployed ern a or underem- that, case, argument turn to in this ployed spouse. While different standards impute the trial court could not income to issues, govern principles each of these him prior because of the SSA's determination underlying guidelines applies both to the that he is disabled. Under the Social Securi present situation. ty person may qualify Act a for such benefits First, court considered Lar "disability." if the individual has a This term ry's capacity self-employed financial as "inability is defined engage any as the 8(A)(2) spouse. Supp. (stating See Child gainful activity by substantial reason of expenses self-employ that "Income and medically physical determinable or mental operation ment or of a business should be impairment expected which can be to result reviewed"); carefully Merrill, see Merrill v. in death or which has lasted or can be ex (hold (Ind.Ct.App.1992) 190 pected period to last for a continuous of not ing guideline "clearly vests discre less than 12 months...." U.S.C. tion with the trial court to scrutinize the self- 423(d)(1)(A). § matter, As a threshold a dis employed parent's closely financial situation ability claimant qualify cannot for if benefits ..."). To review capacity, financial engaged Id.; gainful activity. substantial properly examined the tax Sullivan, 58, 61, F.Supp. see Barber v. n. (W.D.N.Y.1991). operating returns and statements of the busi To make this determina profit ness ascertain the amount which self-employed tion for a spouse, the SSA reasonably generate could from the considers several factors: Paternity business. Thompson, See Re 404.1575(a) § "20 C.F.R. contains evalua- (Ind.Ct.App.1992), guides tion the determination reh'g (holding denied that the determination individual, employed whether a self such self-employed spouse's weekly of a gross in plaintiff, engages as gainful substantial presents "unique challenge come for a trial activity. section, Pursuant to that the de- and, thus, requires court" the trial court to employed termination of whether a self in- scrutinize income tax returns and other dividual is gainful involved substantial data). forms of financial activity requires consideration of factors ' beyond ..., ... including alone determining Larry's addition to ¢ *8 an individual's ... activities and their capacity financial self-employed spouse, as a value regardless to the business ... of Larry court considered whether whether ...' the individual an receives purposely minimized his sales and remained ' ...immediate ...' income for his ser- voluntarily underemployed pursuant to Child 404.1575(a)(1)-(8) § vices. 20 C.F.R. con- 8(A)(8). Supp. previously established, G. As essentially separate tain any three tests the trial court is impute poten authorized to which, met, one of if establish a self spouse tial to a voluntarily who is employed engaged individual is in substan- unemployed underemployed. or It is well gainful activity." tial within the trial court's discretion deter Barber, potential mine the amount of case, income when a F.Supp. 765 61. this Larry argues already parent that because the SSA only has either no means- parent tested income and capable "is him engage found in "unable substan- earning capable income or earning gainful more." activity," tial pro- the trial court was 3, Supp. commentary. Child pur "One calculating potential hibited from then in- pose discourage income is to come ownership based on his of the business.
699
requirements
F.Supp. at
These
are
issue has
Essentially, Larry
that the
that the trial court
already
litigated and
sought to
barred are
been
whether
the issues
be
parties are the
the same and whether the
by
determination
the SSA's
was bound
Applying
proceedings.
same in both
disagree.
Larry
to work. We
is unable
facts,
present
we find
principles
these
to the
judicata pre
principle of res
The
elements are not satisfied: whether
that two
that which
repetitious litigation of
vents the
parties
is the same and whether the
the issue
dispute. Liberty Mu
essentially
same
is
are the same.
K.A.T., Inc.,
980,
F.Supp.
855
tual Ins.Co. v.
First,
in
the issue is not the same
both
(N.D.Ind.1994).
judi-
The doctrine of res
985
During
administrative
proceedings.
branches,
into
distinct
cata is divided
two
SSA,
hearing before the
the issue was wheth
preclusion.
Pro
preclusion
claim
issue
and, thus,
"disability"
wheth
er
had
Morris,
v.
603
gressive Casualty Ins. Co.
engage
in substantial
er he was unable
1380,
(Ind.Ct.App.1992).
Issue
1382
N.E.2d
42
gainful
activity2
See
U.S.C.
as collat
preclusion,
is also referred to
which
428(d)(2)(B).
present
§
The issue in the
case
relitigation
estoppel, precludes
of issues
eral
Larry's weekly gross income for
is whether
necessarily
actually
decided in an earlier
poten
support purposes
child
should include
litigation
parties
the same
or those
between
Simply be
tial income from his business.
privity
parties.
with the
Sullivan
cause the SSA found
to be disabled
134,
Co.,
187
Casualty
605 N.E.2d
American
prohibit
not
under the federal statute did
(Ind.1992). Although
ap
the boundaries
calculating Larry's weekly
trial court from
estoppel
administrative
plying collateral
gross
income under the state
litigation are not well de
decisions to court
at trial
guidelines and based on the evidence
state,
supreme
our
court has
fined
of the issue in this case
While the resolution
estoppel to
approved the use of collateral
inherently
involved an examination
previously decided
administrative
issues
generate income from the busi
capability to
agencies in
cases. See McClanahan v.
some
ness,
proceedings
ultimate issues
both
Lines,
Remington Freight
are not the same.
(Ind.1988); Peabody Coal Co. v. Indiana
394
estop-
The second element of the collateral
Resources,
Dep't Natural
cireum-
pel
that is not satisfied
test
by,
(Ind.Ct.App.1994),
664
affirmed
requirement
for the
stances before us is the
(Ind.1996);
also, Spearman
see
N.E.2d
parties. While
proceedings to have the same
Remy,
F.Supp.
v. Delco
indirectly
may
involved
have been
(S.D.Ind.1989).
determining
an
whether
hearing, she
was
the administrative
estop a
administrative determination should
hearing
from Lar-
party.
not a
resulted
subsequent
litigation,
trial court should
claimant,
disability
filing
applica-
ry, the
(1)
sought to
whether the issues
be
consider:
SSA;
hearing
parties at the
tion with the
statutory jurisdic
estopped
were within
commissioner
for the
were
and the
(2)
ageney;
agency
tion of the
whether
party
was not a
to the
Because Sharon
SSA.
(3)
judicial
acting
capacity;
in a
whether
was
a full and fair
proceeding,
did not have
she
litigate
parties
opportunity
had a fair
both
litigate
issue of
opportunity to
(4)
issues; and
the administra
income,
generate
ability
or otherwise
to work
judicial
appealed
could
to a
tive tribunal
be
necessary
principles of collat-
for the
McClanahan,
the benefit of
these cases the
issue was whether
point,
At that
it was
within
Sharon's
parent
proving
met
the burden
that
finding
support
the SSA
that Lar-
comply
the failure to
support
with the child
interest
ry
engage
gain-
was unable to
substantial
order was not willful or otherwise excused.
however,
activity. Presently,
ful
Sharon tes-
See,
Eisteb,
Further,
e.g.,
court amount of income each within its discretion to establish an amount of would earn the same Instead, Larry Similarly, quarter. potential Larry. relies on the 1998 income for the greatly guidelines fluctuated be trial court followed the in deter- quarterly results which argu support mining losses to his the amount of that income. gains tween quarter 'snapshot' of one is not ment that "a Finally, we find that the trial court acted prediction adequate prof- for the of earn within its discretion when it valued the an basis itability using operating ings experienced that has ex of the business for a business quarter earnings fluctuations from statements admitted into evidence. treme brief, quarter." Appellant's p. 29. IL
However,
argument
no more
this
is
The second issue for our review is
evidence,
reweigh
request
than a
required
trial
court was
de
Ernst,
may
v.
503
which we
not do. Ernst
619,
security disability
duct
social
benefits
(Ind.Ct.App.1987). It
is
N.E.2d
621
son
receives
discretion to
within the trial court's sound
son,
support obligation. Larry's youngest
weigh the evidence. See id. We will reverse
Nathan, receives
each month from the
$178
only
against
logic
if the determination is
Larry's disability. Larry
SSA because of
and effect of the cireumstances before the
parent,
that as the disabled
he is
Cleary Cleary,
trial
v.
court. See
851,
obligation
During
entitled to have his child
(Ind.Ct.App.1991).
852
the dis
security disability
credited with the social
parties presented
proceedings,
solution
In support
benefits received Nathan.
conflicting evidence to the trial
con
argument, Larry
on our decision in
relies
cerning
profitability of the business.
(Ind.Ct.
Poynter,
Poynter v.
Smoot, (Ind.Ct.App.1992), paints picture spouse's ation better finan- toting up cial wherewithal than would a mere denied; Ellis, trans. see McGinley-Ellis (Ind.1994) (holding N.E.2d that "de- benefits.") compensation formal or in-kind termining profitability oper- of the venture or
703 however, security paid recently, supreme court that social survivor benefits to a Very our parent's child should be eredited towards the viability Poynter's questioned the seem- Stultz, 659 ingly bright line rule. Stulz v. support obligation.) Applying this (Ind.1995). Stultz, 125, standard, In the supreme N.E.2d court found that the court's parent appealed the trial properly considered all the factors noncustodial in the case and concluded that a credit was support obligation to offset his child refusal addition, In not warranted. Stuitz at 128. security retirement by the amount of social supreme impact court estimated the of its paid directly to the children as a benefits holding on other cases: The trial court result of his retirement. today paid holding that benefits to "Our does not foreclose the
reasoned
the retirement
courts,
possibility
public
"are not a means-tested
of other
certain
the children
cases,
granting
security
a credit to a social
protected
that should be
assistance
recipient
by
parent for benefits received
a
way
fixing
in the
from consideration
obligation....
however,
are
[SJuch benefits
anticipate,
child. We
that such a
denied,
generally
credit will
be
least
purchase
at no
made available to the children
respect
security
with
social
retirement
Stultz,
to the retiree."
659 N.E.2d at
cost
benefits."
Further,
the trial court found that the
available, assuming a cer-
benefits "became
(original emphasis).
Id. at 128-129
tain
level contribution
the retiree
base
on
last
relies
statement
many
employer, no matter how
or
and his
quoted
argu-
above
standard to
his
they
children and
would not be
how few
that
limited to
seeuri-
ment
Stultz was
social
if there were no children" and that
available
and,
therefore,
ty
that
retirement benefits
dissolved,
marriage
had the
not been
security disability
Poynter still controls social
enjoyed
children would have
the mother's
Stultz,
In
benefit cases.
a footnote in
howev-
income,
and re-
all of the husband's income
er,
supreme
holding
court considered its
plus
children's own re-
tirement benefits
disability
on future
benefit cases:
tirement benefits.
envisage
security
a
"We can
social
disabili-
determination,
reject-
making
reviewing
ty recipient parent
stronger
In
a
case
this
security
analysis and
for a credit
than a social
retire-
ed the trial court's
found
Stultz,
give
Poynter
recipient
ment
but decline to
controlled
case. Stultz v.
(Ind.Ct.App.1994),
591-592
in-
issue extensive treatment
this case
volvingonly retirement benefits. Sufficeit
by,
upon
vacated
that the retired is entitled to a credit find that it is within the trial court's discere- equal security to the amount of those social a credit for dis- tion determine by the children as a matter benefits received addition, ability appropriate. benefits is of law. Id. give supreme court chose not to while the disability treatment to the issue of extensive vacating opinion, supreme our benefits, it nonetheless established right there is no automatic to a held that this issue should be resolved on a case- Stultz, Instead, N.E.2d at 128. credit. by-case basis. "presence supreme court found whole, «Taking principles we find security merely one these as [is] of social benefits trial court's discretion trial court to consider in deter that was within the factor for the give Larry a for the amount which mining support obligation or modifi credit the child Id.; Young receives each month and that obligation." cation of the v. Nathan cf. obligation to do so. Young, (Ind.Ct.App. trial court was under no denied, Therefore, 1995), (holding Larry's argument reh'g trams. denied required to reduce his less the court was order reveals basis for the obligation the amount of Nathan's disabili- amount Such could awarded. revelation ty accomplished specific findings benefits fails. be either by incorporation proper of a work- |
IIL. sheet." (Ind.Ct. Cobb, for our is The third issue review Cobbv. 588N.E.2d 574 App.1992). provided adequate trial court an whether the support award. basis for its child Here, the court's order does not af erroneously trial court relied that the support ford us a basis to review the award. upon unsigned sup and unverified child While we have determined that the trial port support worksheet as the basis for its properly potential court a set income for guidelines in award violation of the upon ownership based his of the busi provide part: in ness and acted within its discretion it when copy support] "I. ... A of the [child per calculated the amount of income at $300 completed worksheet ... shall be and filed week,5 we still cannot discern the basis for with the court in each case which the support final the child award. support, is to ... and court asked order First, we note that the trial by court's find signed parties, worksheets shall be both ings provide grounds do not counsel, the for the penalty perjury. not their under of award. sup Our own calculation of the child parents 2. ... Income statements of the port guidelines amount under the follows. shall be verified with documentation of Larry's weekly To gross ascertain total in past both current and income. Suitable come, potential we add the income $300.00 earnings documentation of current includes from the business of disability $160.00 statements, paystubs, employer receipts or benefits,6 for a total of Sharon's $460.00. expenses self-employed. if Documen weekly gross income totals A com $314.63. may supplemented tation of income be weekly gross bined parties income for the is copies with of tax returns." amount, Larry Of this $774.63. contributes 8(B). Supp. spouse Child G. When one dis- 59% and Turning Sharon contributes 41%. putes by spouse the income claimed the other schedules, guideline weekly sup parties sign separate both should and submit port payment couple for a with a combined showing respective opinions worksheets their weekly adjusted income of and two $774.00 proper support of the child calculation. equals children Supp. See Child $188.00. commentary. recently We addressed the amount, Larry responsible 6. Of this is necessity provide for the trial court a week, approximately per 59% or for a $111 foundation for the trial court's calculation of monthly total support ap child payment support the child award: proximately per Similarly, month.7 if $481 review, "In our we must start with the Larry's support upon we calculate based observation that our trial courts are re- income, potential equal to Sharon's quired compli- make orders Larry's support obligation ap then totals guidelines spell ance with the and to out proximately per month. $496 any support the reasons for orders which guideline deviate results. greater We These amounts are than by award ordered the trial court. $325 cannot review order to deter- brief, if complies guidelines mine with un- performs her one calculation Larry's poten- 5. The trial court set the amount of continue with the amount, the amount $314.63 "roughly equal" "something wages. tial income from the business at to Sharon's week, per rough- $300 the order of or an amount Record, ly equal wages...." p. by adjusting to Wife's 19. 6. We arrived at this amount monthly $693.00 weekly figure. This indeterminable amount of benefit it to a only compounds difficulty discerning However, basis trial court's order. we will by multiplying 7. We at this arrived amount begin $300 our weekly figure dividing calculation with the amount $111 52 and then demonstrate the basis for our reversal and then that total
70§ appraisal and achieves a nent to the for the business and award Next, the ones above. Shar- figure similar to erroneously the trial court attrib- Ryan's vehicles to the total argues that or- uted business on because $825, Second, obviously inventory. Larry argues the court dered an award erroneously excluded in- award the amount Sharon's reduced However, pot. trial court's heritance from the marital benefits. Nathan's Nathan's findings do not indicate whether property during The distribution of marital were deducted from obli- benefits proceeding governed by a dissolution I.C. gation. Even if the trial court had credited § dividing marital 31-1-11.5-11. When $178.00, Larry for Nathan's benefit of our property, presume shall calculations total a month. $303.00 $318.00 *14 just equal an division of the marital estate is findings indi- Because the trial court's do not 31-l-11.5-11(c); § and reasonable. LC. figure at cate the trial court arrived its how Kirkman, 1298, v. 555 N.E.2d 1294 Kirkman $325, propriety of of we cannot review the (Ind.1990). However, may presumption this the trial court's award. $325.00 party be who rebutted establishes Second, adopt the trial court did not the equal just division would not be and rea- 31-1-11.5-ll1(c). party § parties' support sonable. IC. The worksheets. provide unsigned must relevant evidenceas to: submitted two worksheets. One it tax worksheet indicated that was "based on "(1) spouse The of each to the contribution support at return" and caleulated acquisition property, regardless of the Record, work- p. 354. The other $86.00. pro- the contribution was income operating on sheet claimed to be based the ducing. Larry's support and calculated at statement (2) property The which the extent was support one child submitted $180. acquired by spouse prior to mar- each the which indicated that should worksheet riage through gift. or inheritance or upon fig- pay support. no child Based the (8) The economic cireumstances of each worksheets, that the ures in these is clear spouse disposition at time the of the the adopt parties not of the trial court did either effective, property is to become ..... suggestions support. for (4) parties during The conduct of the the the trial court's order does not Because marriage disposition or as related to the basis for the award either reveal property. dissipation of their specific by incorporation of the or findings (5) ability earnings earning of the The worksheets, parties' cannot review the parties as to a final division of related support award to determine whether it com- property and final determination of the Cobb, plies guidelines. with the See 588 rights parties." property of the Therefore, N.E.2d at 574. we remand 81-1-11.5-11(c)(1-5). §T.C. cause to the trial court with instructions provide a basis for its child award. If trial court an un orders distribution, forth equal it must set the basis IV. presump deviation from the 50-50 Euler, is tion. See Euler v. 537 N.E.2d The fourth issue for our review whether apply (Ind.Ct.App.1989). an abuse We just the trial court failed to make a reviewing prop proper- standard when distribution of the marital discretion reasonable Sloss, erty distribution. In re 526 N.E.2d essentially arguments ty. Larry raises two (Ind.Ct.App.1988). reviewing his conclusion that the trial court distributions, reweigh just we neither the evi did not make a and reasonable distribu- First, judge credibility of the wit argues that dence nor tion. he Olds, 1219, 1221 v. of the business and found nesses. Olds inflated the value Rather, only (Ind.Ct.App.1988). we consider value of the marital it exceeded the trial most favorable to the This is further broken down 'the evidence home. issue only disposition. court's Id. We will reverse parts into two which are whether is erroneously compo- where the trial court's decision added an income logic against the and effect of the facts and the retail value of the 1988 Oldsmobile court, including before the which has been used for some circumstances Wife unspecified period primary of time as her to be drawn reasonable inferences therefrom. (Ind. daily transportation. means of Berger Berger, Whatever challenging Ct.App.1995). party the tri issue, the resolution of this the business inventory part parcel al court's distribution must overcome a the Hus- part band's business endeavors and strong complied presumption that the court DeHaan, only marital estate to the extent of the with the statute. 572 N.E.2d at business, valuation of excep- with the
tion of the 1988 Oldsmobile. A. The Valuation the Business appraisals While there were of the busi- estate, ness appraisals real there were no dividing property, marital Before business, complete apparently due to assign trial court had to first a value to the assumption signifi- there was no business. This value differed from the calcu- resulting cant opera- net income from its profitability, lation of tions. As the value of the real estate is used to determine the child award. $53,500.00, inventory the value of the fact, findings In its the trial court stated in *15 (total $12,870.00 filing the time of was in- part: ventory less the listed retail value of the "Appraisals of the real estate admitted Oldsmobile), finding the that the varied, into evidence for the Wife $15,000.00per year, net business income of $85,000.00 being and that for the Husband the Court concludes that the value of the $53,000.00 being ... the Court finds the $66,870.00, business was a minimum of ex- appraisal by Meyers Jim Husband's the good of income-generation clusive will and persuasive appraisals.... more of the two potential. While Court is not able to make precise finding concerning valuation, it finds that the of value the business is parties The concentrated much of their greater than the value of the former mari- business issue attention on the value and (ad- tal residence." ownership of the business real estate above) dressed and the the value of inven- Record, 17, pp. 19-20. tory of used cars at the business at the Larry argues improper that the trial court Wife, filing. using year- time of The the ly inflated the value of the business to exceed figures reported end on the 1998 tax re- that of the marital home.8 raises two turn, contends that the Court should find specific challenges to the trial court's valua date-of-filing inventory the value to First, argues tion of the business. he 13,925.00. Husband, be on the other improperly court in attributed an hand, inventory tendered his of the vehi- component come to the value of the business 16, actually cles on the lot on March despite appraisal already the fact that filing, establishing date the value of Second, component. included income he $16,670.00, inventory including at retail improperly that the trial court includ daily value of the 1988 Oldsmobile driven ed by Ryan the value of the vehicles owned However, by Wife. he attributes four of in assessing the total value of the business' time, the ten vehicles there at the valued inventory. challenge We will address each $7,525.00, Ryan. Ryan ... identified turn. purchased vehicles that he had [several] resale, ... Initially, Larry for his own use or but did not argues that the busi testify ownership any as to appraisal vehicles at ness component included an income and, therefore, Seott Sales & Service on March that the trial court erroneous 16, 1994, ly The Court finds component the March inven- "counted the income twice adding 'potential its own estimation of tory to annu be considered in the division of the $16,670.00,including marital estate to be [appraisal]." al income to Appellant's $75,- appraiser 8. An valued the marital home at 000.00. filed, was petition for dissolution cites
brief, (original emphasis). p. 36 totaling Rill, six automobiles II, owned Inc. opinion in Amnon our denied, reh'g $9,145.00 Ryan four automobiles (Ind.Ct.App.1992), owned N.E.2d $7,525.00. Despite list attribut- totaling dismissed, argument of his trans. Ryan, the trial ing of the vehicles to several may not attribute income court in the busi- included all ten vehicles when the business the value of inventory. court added the The trial ness' already includes an appraisal However, inventory while Annon ad- for a total of lists component. values of both value, $16,670.00. the trial court determining To this used for the methods dressed $3,800.00, the value of an 1988 business, Arnon is subtracted of a fair market value pri- as her case, that Sharon used relat- Oldsmobile In that the issue distinguishable. sell transportation. of a contract to The trial damages for breach mary ed to mode $12,870.00 remaining to the court added the projected whether evidence a hotel was establishing value of the business. was relevant profits lost We, after not- value of a hotel. fair market acted Larry argues that objec- appellant had waived ing that the inventory ignored contrary his to law when evidence by having introduced similar tion only argues that the other evidence list. He such evidence purpose, held for the same respect this issue trial with admitted at profits anticipated lost as "not as relevant inventory detailed list which was Sharon's such, fair market going rather as but January inventory of the business on the date [the value of hotell filing of the prior months to the several profit producing at 328. The breach." This list described petition for dissolution. to determin- the hotel was relevant power of Larry's list included on six of the ten vehicles the net ing hotel's value under monetary values were as- although different *16 determining value. method of capitalization addition, Larry signed to the vehicles. Here, however, capitaliza- income dispute the net his con- argues did not that Sharon to value the real approach inventory was used in the tion described tention that (land building) of Seott Sales & property and however, belonged Ryan. Again, list to opera- and not to value the business' request reweigh Service the evi- argument is a tions, assumption that "apparently due to the Olds, dence, may not do. See resulting significant Instead, net income there was no must consider 1221. N.E.2d at Record, p. to the trial most favorable operations." the evidence 20. from its in court's distribution. real estate used to value the developed rent appraisal was an economic in most favor- Viewing the facts the record comparable other a consideration of from distribution, that the trial we find able to the not appraisal did properties. Because the calculating its discretion court acted within gen- could income that the business consider inventory. During Larry's the value Larry's argument operation, erate from its examination, he testified that several direct erroneously added the belonged Ryan. In addi- of the vehicles such, unpersuasive. As testify tion, Ryan would indicated not err the trial court did we find that Larry admitted the vehicles. that he owned potential component attributing an income detailing inventory lists into evidence the value of the business. the total those cars he owned and those cars which How- 1994. Ryan owned on March Next, trial which Larry argues ever, in its find- court indicated as the trial Ryan's personal erroneously included court pur- had Ryan that he ings, testified the invento while in the calculation of property his own use automobiles for value, ap chased several to the ry's which was added owned resale, testify that he Ryan did not $53,500.00 and the income praised value of any of vehicles on March $15,000.00. Larry on relies component of result, trial court inventory lists. As inventory which were submitted lists two inventory on value of the included the entire objection. These lists without into evidence car the cost of the and subtracted both lists 16, 1994, the date that on March proposed pot, include the inheritance the marital a final invento- used to establish that Sharon over find that the trial court has the discretion to set business. We ry for the value spouse. when it to one within its discretion inheritance trial court acted on lists consti- that the vehicles both inferred order, explained that: In its inventory of the business be- the total tuted apparently had a bank ac- "[The Wife testify that he owned Ryan failed to cause 16, 1994, the March any of the vehicles on in her own name with a balance of count Therefore, trial court's inventory lists. filing, at the time of a vested about $400.00 logic against the is not determination pension through employment her valued at cireumstances before the and effect of the $5,578.86, deposit a certificate of fund- Berger, 648 N.E.2d 382. court. See by a small inheritance from her mother ed tance through gift or inheritance could money deposit from the marital improperly she inherited Next, Larry argues that property which Sharon worth B. The $11,172.00. Larry excluded Sharon's Inheritance pot. purchase a certificate justify concedes used the acquired inheri held be tance was not disclosed and that all other against (the $11,172 *# Court these [sic] marital the Husband *t and which has notes that her proceeds) assets. separately [*] has made no claim the date of inheri- [*] which had a value the evidence by apparently [*] apart [*] been I.C. unequal distribution accordance with The Court finds Wife's certifi- 83l1-1-11.5-l1(c)(2). However, § he deposit cate of should be set aside and unequal favoring Sharon that "an distribution and that the remainder of awarded her justified by not be the inheritance would [property] the marital should be divided throughout the mar from her mother since shares, taking roughly equal into consider- riage parties received and their children finding ation the Court's that the value of substantially Larry's parents than more from the value of the for- the business exceeds brief, p. Appellant's from Sharon's." imprecise mer marital residence some finding trial court's claims that amount." parents' gifts should be divided that his *17 gift equally but that Sharon's mother's Record, p. upon last state- 20. Based the just should be excluded is not and reason ment, we find that the trial court included able. pot the inheritance in the marital but award- it to The trial court indicated ed Sharon. 31-1-11.5-11(b) § Ind. re Code that the inheritance should be awarded to quires property court "divide to that "remainder" of the mari- Sharon and Therefore, prop parties...." all of the property equally. tal should be divided The erty parties, including property owned term "remainder" demonstrates use inheritance, in acquired shall be included that the trial court considered inheri- pot placed and within the trial the marital it set that tance a marital asset and that authority to divide the assets. Cas court's party. This action is within asset over to one Castaneda, v. taneda § court's discretion. See I.C. 81-1- trial rule, (Ind.Ct.App.1998). Nothing in this 11.5-1l(c) only remaining issue is however, requires court to distribute an in resulting unequal whether the distribution through equally acquired asset inheritance just favor is and reasonable. Sharon's fact, § parties. between the In LC. 31-1- Taking the evidence most favorable to the 11.5-11(c) clearly authorizes the trial court to provid- judgment accepting those values unequal an division of those assets order order, proper- ed in the trial court's the final acquired through which were inheritance or such, ty gift. the trial court must distribution is as follows: As while Larry Sharon $53,500.00 $75,000.00 business real estate: marital house: 12,870.00 inventory: checking account 400.00 individual 5,578.86 15,000.00 potential income: pension: interest 38,381.36 11,172.00 ace't: deposit: bank cert. of business 3,800.00 1988Oldsmobile $84,751.36 $95,945.86 TOTAL Thus, to award bear on the reasonableness of the award. In the effect of the decree was Lewis, approximately forty-seven percent (Ind.Ct.App. of the re 1994). Larry fifty-three property marital to percent
percent
to
This six
differ-
Sharon.
The evidence established that Sharon had
equal to
approximately
ence is
the value
$2,851.66
attorney
plus
and that
fees
costs
unequal
In
of the
the inheritance.
$2,717.00
Larry
attorney
accumulated
fees
distribution,
indicated
plus
Larry
trial court ordered
to
costs. The
separate
inheritance
Sharon held the
$1,250.00
litigation
contribute
to Sharon's
ex-
Larry
marital assets and that
did
the other
explaining
Larry "has
penses
that because
not contribute to the accumulation of the
forthcoming
respect
not been
with
to his
suggest
no
to
asset. There was
evidence
business,
earnings from the
the Court finds
pay
was used to
marital
the inheritance
equities
preponderance
to be with
factors are
expenses at
time. These
Record, p.
21.
Wife...."
the trial court's decision
sufficient
upon
finding
Based
court's
the inheritance and order
to award Sharon
Larry
per
had
$300.00
unequal
division
assets. See Castane-
monthly
week in addition to his
dis
$698.00
Therefore,
da,
AFFIRMED IN REVERSED IN PART AND REMANDED.
-
KIRSCH, J., concurs. J., separate concurs with
GARRARD,
opinion.
GARRARD, Judge, concurring. II, parts
I concur III with and IV of the
majority opinion. I also concur in the result part opinion
'as to I I because believe imputed
the court's discussion of Support
income and the Child Cuidelines re- point.
lated thereto is beside the The trial
court did not find that was underem-
ployed might reasonably per make $800
week from his auto business. The court
expressly Larry's testimony determined that subject credible,
on the was not and the court
expressly found that was in fact earn-
ing per about week from the business. $300
Thus, (one question the available
appellant unargued) leaves is whether
evidence was sufficient to sustain the court's facts,
determination. Under the as discussed event, majority, was. .And in
the issue is unavailable since elected argue appeal.
not to it on I therefore concur majority's
with the conclusion that no error
was committed.