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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: BETH ANNE COMPTON Indianapolis, Indiana

FILED
Apr 23 2008, 10:23 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
IN RE: THE MARRIAGE OF CHRISTOPHER MARK KINCAID, Appellant-Respondent, vs. SHELLEY RAE KINCAID, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) )

No. 32A04-0708-CV-452

APPEAL FROM THE HENDRICKS SUPERIOR COURT The Honorable David H. Coleman, Judge Cause No. 32D02-0306-DR-87

April 23, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Christopher Mark Kincaid appeals the trial court's calculation of child support. Because two of the court's findings of fact are clearly erroneous, we reverse and remand for the court to re-determine Christopher's weekly income and recalculate support using corrected incomes for both Christopher and his ex-wife, Shelley. FACTS AND PROCEDURAL HISTORY The parties married on June 4, 1985. They have four children born between 1990 and 1993. In 2003, Shelley filed a petition for dissolution of marriage. The court approved a final settlement agreement on June 5, 2005. That agreement set Christopher's child support obligation at $133 per week. On October 27, 2006, Christopher petitioned for modification of child support due to changes in income, childcare costs, and insurance. The court heard evidence on May 2, 2007, and then the parties submitted proposed findings and conclusions. On May 11, 2007, the court reduced Christopher's weekly support obligation to $102. Christopher moved to correct errors in that order. The court denied his motion. DISCUSSION AND DECISION Christopher challenges a number of findings underlying the court's calculation of his child support obligation. When reviewing the court's findings and conclusions, we consider whether the evidence supports the findings and whether the findings support the judgment. Ratliff v. Ratliff, 804 N.E.2d 237, 244 (Ind. Ct. App. 2004). "In order to determine that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made." Id.

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We note that Shelley did not file an appellee's brief. In this situation, we may reverse the trial court's decision "if the appellant makes a prima facie showing of reversible error." McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004). We also note the court adopted Shelley's proposed findings and conclusions without modification. 1 When a court accepts one party's findings verbatim, it leads to "an inevitable erosion of the confidence of an appellate court that the findings reflect the considered judgment of the trial court." Prowell v. State, 741 N.E.2d 704, 708-09 (Ind. 2001). That the court did not even retype the findings "leaves us with an even lower level of confidence that all findings reflect the independent evaluation by the trial court." Cook v. Whitsell-Sherman, 796 N.E.2d 271, 273 n.1 (Ind. 2003). Christopher asserts the court erroneously determined his and Shelley's incomes. We will not reverse the court's calculation of income for each parent unless it is clearly erroneous. Naggatz v. Beckwith, 809 N.E.2d 899, 902 (Ind. Ct. App. 2004), trans. denied 822 N.E.2d 974 (Ind. 2004). If the calculation includes the forms of income our Child Support Guidelines require to be included and falls within the scope of the evidence presented at the hearing, we will not find clear error. Id. at 903. The court found Shelley's income is $1092.00 per week. That finding is clearly erroneous. All the evidence in the record indicates Shelley's income is $62,000.00 per year, or $1192.00 per week. (See Tr. at 34-35, 37, 45.) The court found Christopher's income is $1072.00 per week. It is apparent the

The court marked out two words, "Mother's Proposed," in the title, such that the title became simply "Order on Child Support Modification." (App. at 10.)

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evidence supporting that finding is the result of a mathematical error by Shelley's counsel: Q Mr. Kincaid you say you earn, uh, eight hundred and seventy-nine dollars a week but you have overtime do you not? Yes, I do. When I look at your current pay stubs that you provided it looks as though through the first two months of 2007 that you earned eight thousand five hundred eighty-two dollars is that correct? Whatever

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