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FOR PUBLICATION
ATTORNEYS FOR APPELLANT: KENDRA GOWDY GJERDIGEN Mallor Clendening Grodner & Bohrer LLP Bloomington, Indiana CORNELIUS B. (NEIL) HAYES Hayes & Hayes Fort Wayne, Indiana ATTORNEYS FOR APPELLEE: BENJAMIN S. J. WILLIAMS PAUL R. STURM Shambaugh, Kast, Beck & Williams, LLP Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA
RICHARD D. MEREDITH, Appellant-Respondent, vs. CONNIE S. MEREDITH, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 02A03-0510-CV-520

APPEAL FROM THE ALLEN CIRCUIT COURT The Honorable Trina Glusenkamp Gould, Special Judge Cause No. 02C01-9410-DR-1273

October 6, 2006

OPINION ON REHEARING - FOR PUBLICATION

CRONE, Judge

Background On October 26, 2005, Richard D. Meredith ("Father") appealed the trial court's denial of his motion to modify child support. We reviewed the record before us and found that Father had filed a motion to correct error on July 26, 2005, and that the trial court denied Father's motion on October 5, 2005. We determined that, pursuant to Indiana Trial Rule 53.3(A) and Indiana Appellate Rule 9(A), the motion was deemed denied on September 8, 2005. 1 We concluded that Father had not timely filed his appeal, and we therefore lacked jurisdiction. Accordingly, in Meredith v. Meredith, No. 02A03-0510-CV-520 (Ind. Ct. App. July 20, 2006), we dismissed Father's appeal in a memorandum decision. Father now petitions for rehearing, asserting that his appeal was timely filed and that the trial court's notice and order to appear regarding a hearing on his motion to correct error was inadvertently omitted from his appendix. Appellant's Pet. For Reh'g at 1 n.1. Additionally, he moves for leave to file a supplemental appendix, containing the aforementioned notice and order to appear. Our review of Father's supplemental appendix reveals that on July 27, 2005, within the forty-five days required by Indiana Trial Rule 53.3, the trial court set a hearing on Father's motion to correct error. The hearing was set for September 6, 2005. On October 5, 2005, within thirty days of September 6, 2005, as required by Trial Rule 53.3, the trial court issued an order, stating: "The Court, having taken

Indiana Trial Rule 53.3(A) provides: "In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required, the pending motion to correct error shall be deemed denied. Any appeal shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is deemed denied."

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under advisement Respondent's Motion to Correct Errors and the arguments heard thereon, now denies the same." Appellant's App. at 29. 2 Based on the additional information provided in Father's supplemental appendix, we now conclude that Father's appeal was timely filed. We therefore grant Father's petition for rehearing and his motion to file supplemental appendix, vacate our original opinion, and reverse the trial court's denial of Father's motion to modify child support and remand. Issue Father raises one issue, which we restate as whether the trial court abused its discretion in denying his motion for modification of child support. Facts and Procedural History On October 8, 1996, the marriage of Father and Connie S. Meredith ("Mother") was dissolved. The parties had one child, Andrew, born October 16, 1988. Pursuant to the dissolution decree, Mother was awarded primary physical custody of Andrew, and Father was ordered to pay weekly child support in the amount of $161.00. On February 25, 2004, Father filed a motion for modification of support. At the time of the initial support order and when Father filed the motion for modification, he was employed as a foundry worker at International Truck and Engine Corporation ("ICC"). On April 1, 2004, Father voluntarily retired. By retiring at that time, he increased his monthly pension by $300.00. He had worked 29.3 years. On June 18, 2004, Mother filed an amended motion for findings of fact and conclusions thereon. On October 28, 2004, the trial court held a hearing on the motion. On
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We note that there is no indication in the chronological case summary that a hearing was ever held.

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June 30, 2005, the trial court denied Father's motion for modification of support. The trial court's findings of fact and conclusions thereon provided in relevant part: 13. On February 25, 2004, the date [Father] filed his motion for Modification of Support, [Father] was employed by [ICC]. 14. Subsequent to the date of filing, on April 1, 2004, [Father] took early retirement from his job with [ICC]. Immediately prior to taking early retirement [Father] was earning $19.30 per hour at [ICC]. [Father] was motivated to take early retirement to increase his monthly pension by $300.00[.] 15. At the time of the hearing, [Father] was voluntarily unemployed.

16. At the time of the hearing, [Father] was receiving a pension income of nearly $29,978.00, annually or approximately $576.50 per week. .... 17. Between January 8, 2004 and April 8, 2004 (14 weeks), [Father] worked at [ICC] and earned $22,678.51. .... In addition to his pension income of $21,907.00 ($576.50 x 38 weeks = $21,907), [Father] is capable of earning minimum wage for 38 weeks or $7,980.00 for the remainder of the year ($210 per week x 38 weeks = $7,980.00). 18. [Father] is projected to earn $52,565.51 for the year 2004 ($22,678.51 + $21,907.00 + $7,980.00 = $52,565.51). 19. [Father]'s average annual income is determined to be approximately $66,472.00 that being the average of his income for 2001, 2002, 2003 and 2004 projections (see paragraph 21), respectively in the sums of $58,028.21; $92,092.62; $63,200.61; and $52,565.51. .... 20. Based upon [Father]'s average annual income of $66,472.00, [Father] earns, Or [sic] is capable of earning a weekly gross income of $1,278.31 per week. 21. .... THEREFORE, BASED UPON THE FOREGOING FINDINGS, THE COURT NOW CONCLUDES THAT: [Father] is capable of working.

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.... 8. .... 14. [Father]'s Federal Income Tax Return is the determination of his potential income. It serves as pieces [sic] of evidence with regard to his work history, and it reflects his employment potential and probable earnings. See, Billings v. Billings, 560 N.E.2d 553 (Ind. Ct. App. 1990). .... 17. Based upon [Father]'s average annual income of $66,472.00, [Father] earns, or is capable of earning a weekly gross income of $1,278.31 per week. .... Based upon the Court's child support worksheet, attached hereto and incorporated herein by reference, the recommended child support is $176.41. 20. There has not been a change in circumstances so substantial and continuing to make the terms of the October 8, 1996 support order unreasonable. 21. The current order does not differ by more than twenty percent (20%) from the amount by applying the Indiana Child Support Rules and Guidelines. 22. .... The Court finds that the October 8, 1996 child support order is reasonable. Appellant's App. at 17-23. On July 26, 2005, Father filed a motion to correct error. On July 27, 2005, the trial court set a hearing on the motion for September 6, 2005. On October 5, 2005, the trial court denied the motion. We now address the merits of Father's appeal. The Court finds that [Father] is voluntarily unemployed.

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Discussion and Decision Father asserts that the trial court abused its discretion in denying his motion for modification of child support. Initially, we observe that Mother requested findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). Our standard of review is well settled: First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. In deference to the trial court's proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence, but consider only the evidence favorable to the trial court's judgment. Challengers must establish that the trial court's findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We evaluate questions of law de novo and owe no deference to a trial court's determination of such questions. Carmichael v. Siegel, 754 N.E.2d 619, 625 (Ind. Ct. App. 2001) (citations omitted). 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. In re Paternity of E.M.P., 722 N.E.2d 349, 351 (Ind. Ct. App. 2000). We consider the evidence most favorable to the judgment without reweighing the evidence or judging the credibility of the witnesses upon review. 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. Child support orders may be modified based on the following: (1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
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(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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