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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.

FILED
Sep 08 2011, 9:42 am
of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ANTHONY J. SAUNDERS New Castle, Indiana

CLERK

IN THE COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF: SAMUEL D. GRAY, Appellant-Respondent, vs. ANGEL L. GRAY, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) )

No. 33A05-1102-DR-89

APPEAL FROM THE HENRY CIRCUIT COURT The Honorable Richard D. Culver, Special Judge Cause No. 33C01-0212-DR-0230

September 8, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge

Case Summary Samuel Gray ("Father") appeals the trial court's decision in favor of his ex-wife, Angel Gray ("Mother"). Father contends that the trial court erred in increasing his child support obligation, requiring him to pay post-secondary education and orthodontic expenses for two of the parties' children, and in finding him in contempt for failure to satisfy a monetary judgment. We affirm in part and reverse in part. Facts and Procedural History Father and Mother divorced in April 2003. According to the dissolution decree, Mother was awarded custody of their four children and Father was ordered to pay child support in the amount of $300 per week. In addition, the parties agreed that Father would retain a truck and a Harley Davidson motorcycle, and in return, would pay Mother $10,000. In November 2009, in response to ongoing disputes between the parties, the trial court found that orthodontic procedures were reasonable and necessary for the parties' children. The court also apportioned the cost of uninsured medical expenses between the parents, holding Mother responsible for the first $1185 of the children's uninsured medical expenses annually. Father was ordered to pay 67% of uninsured expenses in excess of that amount. In the same order, the trial court found that Father had

fraudulently transferred his Harley Davidson motorcycle to avoid his financial obligations to Mother. The court ordered Father to pay Mother $8000, the sale price of the motorcycle, in a lump sum.

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In May 2010, Mother filed an information for contempt, alleging that Father had failed to pay her the price of the motorcycle as the court ordered, had failed to pay $950 in child support, and had not paid his share of the orthodontic bills. The same day, Mother also filed a petition to modify Father's child support obligation, alleging a change of circumstances so substantial and continuing as to make the current child support decree unreasonable. Specifically, Mother argued that her loss of employment, the fact that the children had grown older, and the parties' eldest child's college enrollment amounted to a substantial and continuing change in circumstances. In July 2010, the court held a hearing on the issues of child support, orthodontic and post-secondary educational expenses, and contempt. At the hearing, Mother's

counsel reiterated that Father had failed to satisfy the judgment pertaining to the Harley Davidson motorcycle. Father did not dispute the fact that he had not paid. On the issue of child support, the parties contended that their respective incomes had changed. Mother's counsel stated that while Mother earned $27,000 in 2009, she lost her job in 2010 and as a result, her income consisted solely of child support payments, $312.00 from a job at Ball State lasting four months, and unemployment assistance. Tr. p. 8-9. Father's attorney stated that while Father earned $82,000 in 2009, he earned only $24,805.41 in approximately half of 2010, though he collected unemployment during weeks he did not work. Id. at 10-11, 13. Evidence of post-secondary educational expenses was also presented at the hearing. Mother's attorney stated that the parties' oldest daughter was attending IU East in Richmond, Indiana, paying $250 per month to live in an apartment with another 3

student, and that the child's other living expenses were being paid by Mother. Id. at 10. At the end of the hearing, the court inquired as to additional evidence of college expenses. Specifically, the following exchange occurred:

THE COURT: Mr. Tanner do you have anything in terms of what the tuition is at IU East? MR. TANNER [Mother's Counsel]: Yes I thought I handed it to you earlier. COURT: Maybe you did. MS. GRAY: I did. I gave you a paper that's got the total estimate and breakdown for quarters. It says Ball State University at the very top or I mean IU East. MR. TANNER: I must have handed it to you earlier. (RECORDING STOPPED, NO FURTHER HEARING RECORDED) *** Id. at 13-14. In November 2010, the trial court issued an order pertaining to contempt, orthodontic and post-secondary educational expenses, and child support. provides in relevant part: And the Court finds that the Respondent was ordered on December 11, 2009 to immediately pay the value of the Ford truck and Harley Davidson motorcycle, but the Defendant failed to pay the value of the motorcycle and the Court finds him in Contempt and he is sentenced to ninety (90) days in jail and ordered to pay $500.00 attorney's fees to the attorney for the Petitioner, but the Court will stay the 90 days jail sentence on condition that the Respondent pay $8,500 to the Clerk of Henry Circuit Court in ten (10) days of this order. The court further finds that the orthodontic bill for Sierra, minor child, was $3,950.00 and that the Petitioner is responsible for the first $1,185.00, leaving a balance of $2,765.00 and the Respondent is 4 The order

responsible for 67%, which he should be ordered to owe $1,742.00 and he should be ordered to pay this at the rate of $100.00 per month. Further, the Court finds that the parties' oldest child, Shayna Gray, born April 27, 1992 is attending college at I.U. East in Richmond, Indiana, that her tuition was $6,054.72 and room and board is $7,200.00, that books fees are $1,000.00 per year, making a total of $13,700.72 and that she has $1,000 in scholarships, $5,550.00 in pell grant and loans of $5,500.00 which is more than her share. The Court finds that the parents share is $2,250.00 of which the Respondent would owe $1,935.00 and the Petitioner would owe $315.00, (See attached sheet) and the Respondent shall pay 1/2 within 60 days and the balance beginning of the second semester. The Court further finds that child support for the three remaining children is $429.00 per week as set out in the attached worksheet. Appellant's App. p. 59. The court also attached a child support obligation worksheet and post-secondary education worksheet to its order. Father filed a motion to correct error, challenging each of the four orders. The motion was denied. Father now appeals. Discussion and Decision Father contends that the trial court erred in increasing his support obligation, requiring him to pay post-secondary education and orthodontic expenses, and in finding him in contempt for failing to satisfy the monetary judgment in Mother's favor. We initially note that Mother did not file an appellee's brief. When an appellee fails to submit a brief, we do not undertake the burden of developing arguments for her, and we apply a less stringent standard of review with respect to showings of reversible error. Julie C. v. Andrew C., 924 N.E.2d 1249, 1255 (Ind. Ct. App. 2010). That is, we may reverse if the appellant establishes prima facie error, which is an error at first sight, on first appearance, or on the face of it. Id. 5

I. Modification of Child Support Father first contends that the trial court erred in granting Mother's petition to modify his child support obligation. Specifically, he argues that there was no evidence to support the court's order to increase his support obligation by $49 per week. In

reviewing a decision regarding a petition to modify child support, we will reverse if there is a showing that the trial court abused its discretion. Meredith v. Meredith, 854 N.E.2d 942, 947 (Ind. Ct. App. 2006). We consider the evidence most favorable to the judgment without reweighing the evidence or judging the credibility of the witnesses. Id. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances that were before the trial court, including any reasonable inferences to be drawn therefrom. Id. Generally, a child support order may be modified only: (1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or (2) upon a showing that: (A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and (B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed. Ind. Code

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