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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: MICHAEL R. COCHRAN Princeton, Indiana

FILED
Dec 19 2008, 9:40 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
MARSHANE BONAPARTE, Appellant-Petitioner, vs. PHYLLIS BONAPARTE, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 42A05-0803-CV-172

APPEAL FROM THE KNOX SUPERIOR COURT The Honorable W. Timothy Crowley, Special Judge Cause No. 42D02-0304-DR-110

December 19, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues In this post-dissolution of marriage proceeding, the trial court entered an order resolving several issues relating to contempt and child support in a manner that was adverse to Marshane Bonaparte and favorable to Marshane's ex-wife, Phyllis Bonaparte. On appeal, Marshane raises three issues, which we restate as 1) whether the trial court abused its discretion when it refused to find Phyllis in contempt of court; 2) whether the trial court abused its discretion when it calculated Marshane's child support arrearage; and 3) whether the trial court abused its discretion when it calculated Marshane's weekly child support obligation. Concluding that the trial court abused its discretion when it refused to find Phyllis in contempt, but that the trial court did not abuse its discretion when it calculated Marshane's child support arrearage and weekly child support obligation, we affirm in part and reverse in part. Facts and Procedural History At some point in 2003 (the record is unclear on the exact date), the trial court entered an order that, among other things, dissolved the Bonapartes' marriage, granted custody of the Bonapartes' three minor children to Phyllis, and ordered Marshane to pay child support.1 On June 25, 2007, Marshane filed a motion seeking 1) a contempt finding against Phyllis due to her alleged inclusion of two of the children as dependents on her 2005 and 2006 income tax

The record's failure to disclose the exact date of the dissolution of the Bonapartes' marriage is due to Marshane's failure to include a copy of the dissolution decree in his appendix. Marshane also failed to include copies of other orders and pleadings that would have been helpful in resolving this appeal, such as copies of his motions that were denied by the trial court and from which he now appeals. We remind Marshane's counsel of Indiana Appellate Rule 50(A)(2)(f) and note that but for our strong preference to decide cases on their merits, see Novatny v. Novatny, 872 N.E.2d 673, 677 (Ind. Ct. App. 2007), Marshane 's failure to provide us with copies of these documents would have resulted in waiver.

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returns and 2) a reduction in his weekly child support obligation due to the alleged emancipation of Mt.B, the Bonapartes' eldest child. On October 31, 2007, Marshane filed a motion seeking a finding that he had fully paid a previous child support arrearage. On November 1, 2007, the trial court conducted a hearing on Marshane's motions and, on January 30, 2008, entered an order that 1) declined to find Phyllis in contempt; 2) found Marshane was $1,550.00 in arrears with his child support obligation; and 3) modified Marshane's weekly child support obligation to $106.00 based in part on a finding that Marshane "has carried his burden concerning an abatement of support for [Mt.B.] effective with the date of this order." Appellant's Appendix at 13. The modification, however, actually resulted in a slight increase in Marshane's weekly obligation because the trial court refused to award him some overnight credit that had been awarded previously. On February 26, 2008, Marshane filed a motion to correct error, which the trial court denied three days later. Marshane now appeals. Discussion and Decision I. Standard of Review Marshane argues the trial court abused its discretion when it refused to find Phyllis in contempt and when it calculated his arrearage and weekly child support obligation. This court reviews a trial court's contempt determination for an abuse of discretion. Norris v. Pethe, 833 N.E.2d 1024, 1029 (Ind. Ct. App. 2005). This court also applies an abuse of discretion standard when reviewing a trial court's decision relating to child support matters generally, Decker v. Decker, 829 N.E.2d 77, 79 (Ind. Ct. App. 2005), as well as decisions

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involving arrearages and the calculation of weekly child support obligations specifically, see Thompson v. Thompson, 811 N.E.2d 888, 924-26 (Ind. Ct. App. 2004), trans. denied; Naggatz v. Beckwith, 809 N.E.2d 899, 903-04 (Ind. Ct. App. 2004), trans. denied. Abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Norris, 833 N.E.2d at 1029. In determining whether the trial court abused its discretion, we neither reweigh evidence nor judge witness credibility, and consider only the evidence and reasonable inferences supporting the trial court's decision. Id. We also note that Marshane's burden on appeal is relaxed somewhat because Phyllis has not filed an appellee's brief. In such cases, we will not attempt to develop an argument for the appellee and may reverse if the appellant demonstrates prima facie error. McKinney v. McKinney, 820 N.E.2d 682, 685 (Ind. Ct. App. 2005). "Prima facie" means "at first sight, on first appearance, or on the face of it." Id. (quoting Jones v. Harner, 684 N.E.2d 560, 562 n.1 (Ind. Ct. App. 1997)). II. Propriety of Trial Court's Order A. Contempt Turning first to the trial court's refusal to find Phyllis in contempt, we note that some additional background is necessary to resolve this issue. Marshane requested a contempt order based on an allegation that Phyllis had claimed the children as dependents on her 2005 and 2006 income tax returns. Although Marshane has not included a copy of the dissolution decree as part of the record, he has included an order entered after the dissolution decree stating that he is entitled to claim two children as dependents for 2005 and 2006. See

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Appellant's App. at 22 (trial court's November 23, 2005, order stating that Marshane "shall be entitled to claim two (2) children, as dependents for taxation purposes, for the tax year 2005/2006"). Moreover, Phyllis admitted during the hearing that she claimed the children as dependents on her tax returns for those years. See Transcript at 55 ("[Trial Court]: And you're saying despite that [(referring to the trial court's order permitting Marshane to claim the children as dependents)] you went ahead and claimed all three kids? [Phyllis]: Yeah."). The foregoing establishes that the trial court gave Marshane the right to claim two children as dependents on his 2005 and 2006 tax returns, that Phyllis was aware of this right, and that she nevertheless claimed all three children on her tax returns. Such evidence presents a straightforward case for contempt. See Ind. Code

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