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FOR PUBLICATION

FILED
Feb 26 2008, 8:35 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: ALISON T. FRAZIER Dupont, Indiana

ATTORNEY FOR APPELLEE: JOSEPH LEON PAYNE Austin, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOHN L. RICHARDSON, Appellant-Respondent, vs. SUSAN E. HANSROTE, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 72A01-0706-CV-288

APPEAL FROM THE SCOTT SUPERIOR COURT The Honorable Nicholas L. South, Judge Cause No. 72D01-0201-DR-6

February 26, 2008

OPINION - FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE John L. Richardson ("Father") appeals the trial court's order denying his postdissolution motion for rule to show cause why Susan E. Hansrote ("Mother") should not be held in contempt. Father asserts three issues on appeal, which we restate as: 1. Whether the trial court erred when it determined that Father has a child support arrearage. Whether errors by the clerk of the court, who mistakenly applied two of Father's child support payments to the wrong account, are attributable to Father. Whether the trial court erred when it determined that a child support obligation paid by an income withholding order is not paid until it is received in the clerk's office where Mother had agreed to an income withholding order.

2.

3.

We reverse and remand with instructions. FACTS AND PROCEDURAL HISTORY The Decree dissolved the marriage of Father and Mother on May 16, 2002. The parties have three minor children. In the Decree, the dissolution court awarded joint custody of the children to Father and Mother, giving Mother primary physical custody and Father visitation. Regarding child support, the Decree provided, in relevant part: IT IS FURTHER ORDERED AND DECREED by the Court that [Father] be, and he hereby is, ordered to pay child support for the benefit of the minor children of the parties in the sum of $168.00 per week to the Clerk of the Scott Superior Court commencing on the first Friday following the date of this Decree of Dissolution of Marriage and continuing on each and every Friday thereafter until the further order of this Court. . . . IT IS FURTHER ORDERED AND DECREED by the Court that [Father] be, and he hereby is, found to be in arrears in the payment of child support as set forth in the Provisional Order herein, and that [Father] shall pay the sum of $32.00 per week in addition to current child support until said arrearage is paid in full.
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IT IS FURTHER ORDERED AND DECREED by the Court that [Father] be, and he hereby is, awarded the tax exemption for income tax purposes each year for the minor child of the parties, [S.D.R.], as long as [Father] is current on the payment toward child support as of December 31 of each year . . . . The parties shall alternate the tax exemption on the minor child of the parties, M.A.R., with [Mother] receiving the tax exemption on even-numbered years commencing with the taxable year 2002, and [Father] receiving the tax exemption on odd-numbered years as long as [Father] is current on the payment toward child support as of December 31 of each year. . . . Appellant's App. at 8-9 (emphases added). On June 9, 2005, Father filed a Verified Petition for Modification of Decree of Dissolution of Marriage Regarding Parenting Time, Child Support and Related Issues. On August 25, 2005, the parties executed an agreed modification of the Decree ("Agreed Modification"), under which the parties agreed for child support to be paid by an income withholding order. The Agreed Modification also reduced Father's support obligation, as follows: By agreement of the parties, [Father's] child support obligation is hereby reduced to ONE HUNDRED FORTY-TWO DOLLARS ($142.00) per week beginning Friday, August 26, 2005. [Father] will continue to pay his child support obligation to the Clerk of the Scott Superior Court until such time that an Income Withholding Order becomes effective. . . . Appellant's App. at 12. The voluntary income withholding order was entered on

September 22, 2005, and Father continued to make child support payments directly to the clerk of the court until the income withholding order took effect. approved and entered the Agreed Modification on October 7, 2005. On January 30 or 31, 2006, Mother telephoned Father and informed him that she planned to file her 2005 income tax return the following day, claiming all three of parties'
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The trial court

children as exemptions because Father was in arrears on his child support obligation as of December 31, 2005. Father denied any arrearage, but, upon checking with the clerk of the court the following day, he discovered that the clerk had erroneously credited Father's June 17 and July 8, 2005, payments to another child support account. Father immediately presented his receipt for the June 17, 2005, payment, which he then realized showed that the clerk had erroneously credited the payment to Brian Richardson. The clerk corrected that error at once. Father did not have the receipt for the July 8, 2005, payment, so he immediately made another payment of $168 for July 8. Both the June 17 and the replacement July 8 payments were credited as of February 2, 2006, but the clerk did not correctly credit Father's account for the original July 8, 2005, payment until after completing an audit of Brian Richardson's account.1 When Father filed his 2005 tax return and claimed two of the children as tax exemptions pursuant to the Decree, he believed that he was not in arrears as of December 31, 2005. But Mother had already filed her 2005 return, also claiming those children. As a result, the Internal Revenue Service ordered Father to file an amended return and imposed penalties against him. On January 24, 2007, Father filed a Motion for Rule to Show Cause, seeking to hold Mother in contempt because the Decree provided for Father to claim two children as dependents for 2005 but Mother had claimed those exemptions on her 2005 return. In her reply, Mother asserted that Father was not entitled to any of the tax exemptions because his child support payments were not current as of December 31, 2005. After a hearing,
1

The parties do not indicate whether, after the clerk completed the audit and credited Father's account accordingly, Father was reimbursed for the extra July 8 payment he had made in February 2006.

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the court entered an order denying Father's motion ("Show Cause Order"), finding that he was $510 in arrears on December 31, 2005. The Court found as follows: 3. In this case there is no evidence that any non-conforming support payments were paid. The Clerk's records in this case show that as of 31 December 2005, [Father's] support was in arrears in the sum of $510.00. 4. [Father] has asserted that such arrearage was the result of two (2) payments made by him and misapplied by the Clerk's office until 3 January, 2006. Further [Father's] evidence indicated that the Clerk corrected one of the misapplied payments but this did not happen until February 2006. Further [Father] testified that he paid his support current upon being advised by [Mother] of an arrearage. 5. The order in this case is clear that, in order to be entitled to claim the tax exemptions, [Father] must have been current on his support as of 31 December 2005. In order for the Parties to determine if support is current the Parties must be in a position to rely upon the Clerk's records. The Court finds that a support payment is not paid until the same is received by either the County Clerk or the State Central Unit and therefore a payment is not considered made if the payment has been deducted by the Obligor's employer but not yet received by either agency. Of the two (2) Parties to this action, [Father], being the obligor, was in the better position to determine if the Clerk's records were correct, and if not, then have them corrected to reflect the actual payment status as of December 31st of any year. 6. For reasons set forth above, even if the misapplied payments and the payment deducted by his employer, would have resulted in [Father's] support being current as of 31 December 2005, he is not entitled to the relief he seeks herein. 7. The Court finds that, as of 31 December 2005, [Father's] support arrearage was in the sum of $510.00. . . . Appellant's App. at 33-34. Father now appeals.

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DISCUSSION AND DECISION Standard of Review Father argues that the trial court should have found Mother in contempt for claiming tax exemptions for two of the children for the 2005 tax year. Indirect contempt is the willful disobedience of any lawfully entered court order of which the offender had notice. Conrail v. Estate of Martin, 720 N.E.2d 1261, 1264 (Ind. Ct. App. 1999). Whether a person is in contempt of a court order is a matter left to the trial court's discretion. Id. Upon review, we will reverse the trial court's determination only where an abuse of discretion has been shown. Id. An abuse of discretion occurs only when the trial court's decision is against the logic and effect of the facts and circumstances before it. Id. In ruling on Father's motion for rule to show cause, the court entered findings of fact and conclusions sua sponte. Therefore, we apply a two-tiered standard of review. Vega v. Allen County Dep't of Family & Children (In re J.V.), 875 N.E.2d 395, 402 (Ind. Ct. App. 2007). We may not set aside the findings or judgment unless they are clearly erroneous. Ind. Trial R. 52(A); Perrine v. Marion County Office of Child Servs., 866 N.E.2d 269, 273 (Ind. Ct. App. 2007). In our review, we first consider whether the evidence supports the factual findings. Perrine, 866 N.E.2d at 273. Second, we consider whether the findings support the judgment. Id. "Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference." Id.; Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous if it relies on an incorrect legal standard. Perrine, 866 N.E.2d at 273. We give due regard to
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the trial court's ability to assess the credibility of witnesses. T.R. 52(A). While we defer substantially to findings of fact, we do not do so to conclusions of law. Perrine, 866 N.E.2d at 274. We do not reweigh the evidence; rather we consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment. Id. Issue One: Provisional Arrearage Father contends that the trial court abused its discretion when it refused to find Mother in contempt of the Decree and Agreed Modification. The court's decision was based, at least in part, on its finding that Father was in arrears as of December 31, 2005. Father argues that the evidence is insufficient to support the determination that he had accrued a child support arrearage. In particular, Father contends that the trial court should not have included a provisional arrearage in its arrearage calculation. We must agree. The trial court relied on the clerk's records to determine that Father was in arrears in child support as of December 31, 2005, as indicated by the court's findings in the Show Cause Order: 3. In this case there is no evidence that any non-conforming support payments were paid. The Clerk's records in this case show that as of 31 December 2005, [Father's] support was in arrears in the sum of $510.00. *** 5. . . . In order for the Parties to determine if support is current the Parties must be in a position to rely upon the Clerk's records. . . . ***

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7. The Court finds that, as of 31 December 2005, [Father's] support arrearage was in the sum of $510.00. . . . Appellant's App. at 33-34 (emphasis added). Thus, to determine whether the evidence supports the trial court's finding that Father had a $510 arrearage as of December 31, 2005, we must review the clerk's records and any other evidence. To that end, we first consider whether the arrearage found by the trial court includes a provisional arrearage and, if so, whether the evidence supports the finding that there was a provisional arrearage. In that regard, Mother requests that we: note[] that at the time of the decree of dissolution Father was in arrears on the payment of his child support obligation. This fact was noted by the order of the trial court that found the father to be in arrears and ordered him to pay an additional $32.00 per week until he became current. Appellee's Brief at 7 (citing Appellant's App. at 8). But at the hearing on Father's Motion, Mother and Father agreed that there was no arrearage at the time of the Decree: Mother's Counsel: Your Honor, there was an agreed entry entered in this case as a result of [an August 2005] hearing. What may have been brought up during the hearing is irrelevant. There was no finding of any kind of a support arrearage at that time, nor [were] there any petitions filed in regards to rules to show cause or anything else. Court: It goes back to the last time there was a finding, which apparently is in the decree. Your Honor, in the decree there is no finding of an arrearage. There is no figure. Then you start off at zero. That's right. If there's not been a finding since then, then that's where you go back to. There's nothing in this October
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Father's Counsel:

Court: Father's Counsel: Court:

2005 order that says one way or the other about an arrearage. Mother's Counsel: No, there's not. Court: It's not even mentioned.

Mother's Counsel: No, it's not. Transcript at 32-33. In the Decree, the dissolution court found that Father was in arrears in the payment of child support, and it ordered him to pay $32 per week in addition to child support until the arrearage was paid in full. But the trial court did not state the amount of the arrearage in the Decree. Without any evidence of the provisional arrearage that had accrued as of the date of Decree, we cannot determine the amount of the arrearage, if any, that remained unpaid as of December 31, 2005. Nor could the trial court make that finding. Thus, to the extent that any provisional arrearage is included in the trial court's finding that Father was $510 in arrears as of December 31, 2005, that finding is unsupported by the evidence.2 We also consider the trial court's related finding that "[t]he Clerk's records in this case show that as of 31 December 2005, [Father's] support was in arrears in the sum of $510.00." Appellant's App. at 33. The clerk is not responsible for calculating

arrearages. To the contrary, the clerk merely maintains a record of payments received.
Although we cannot determine the factual issues of the amount of the provisional arrearage, if any, or what the arrearage is comprised of, it appears that the court may have reached $510 by adding the two support payments that were misapplied by the clerk ($168 each); the payment received January 3, 2006, under the income withholding order ($142); and a balance of $32. The trial court does not explain its computation. However, we note that $32 is also the amount that Father was ordered in the Decree to pay each week toward a provisional arrearage and that the clerk's record shows a series of weekly $200 payments ($168 plus $32) plus a $192 payment ($168 plus $24) through June 6, 2002.
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See Ind. Code

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