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:
ATTORNEY FOR APPELLEE
PERRY D. SHILTS
Fort Wayne, Indiana
BRIDGETTE F. GREENE
Elkhart, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHELLE M. SHEPERD,
Appellant-Petitioner,
vs.
JAIME M. SHEPERD,
Appellee-Respondent.
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No. 20A03-0608-CV-376
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Stephen E. Platt, Judge
David A. Denton, Magistrate
Cause No. 20D02-0502-DR-101
May 11, 2007
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Michelle Sheperd (“Wife”) appeals the trial court’s grant of Jamie Sheperd’s
(“Husband”) petition to modify child support. She contends that the trial court abused its
discretion in determining that Husband is no longer voluntarily underemployed. Finding
no abuse of discretion, we affirm the judgment of the trial court.
Facts and Procedural History
Wife and Husband married in the mid-1980s. The couple had five children. Wife
was the primary source of income for the family while Husband was attending medical
school and participating in a residency program between 1989 and 1997.
In
approximately 1997, after Husband completed his residency program, Wife stopped
working and stayed at home to care for the couple’s children. In 2001, Wife filed a
petition to dissolve the marriage. Husband’s income for 2001 from his employment and
ownership interest with Goshen Radiology, P.C. (“Goshen Radiology”), was
$896,792.00. Husband’s 2002 income was $754,590.00. In 2003, Husband gave up his
interest in Goshen Radiology and moved to the Seattle, Washington, area, where he
began working for a company called Radia. In 2004, Husband earned $235,519.00.
On November 5, 2004, the trial court granted Wife’s petition to dissolve the
marriage. The Decree of Dissolution of Marriage (“Decree”) granted legal custody of the
couple’s five children to Wife. The Decree also provided:
[Husband] was employed with Goshen Radiology, P.C., until February 28,
2003, when he voluntarily left that employment, voluntarily left the Elkhart
community, and voluntarily assumed an employment position with Radia
Medical Imaging of Seattle, Washington. [Husband’s] income for 2001
from his employment and ownership interest with Goshen Radiology, P.C.,
was $896,792.00. [Husband’s] income for 2002 from his employment and
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ownership interest with Goshen Radiology, P.C. was $754,590.00.
[Husband] voluntarily left a higher paying employment position for a
position which paid significantly less.
Appellant’s App. p. 55. The trial court imputed to Husband an income of $750,000.00
per year, or $14,423.00 per week, and set Husband’s weekly child support obligation at
$1523.00.
On January 7, 2005, just two months after the original Decree was entered,
Husband filed a Petition to Modify Support and Visitation (“First Petition to Modify
Support”) and a Motion for Change of Venue from Judge. Husband claimed that his
income was approximately $250,000.00 per year. The trial court granted Husband’s
motion for change of judge but denied his First Petition to Modify Support.
On December 21, 2005, Husband entered into an employment agreement with
Olympic Medical Physicians (“Employment Agreement”). The Employment Agreement
provided for annual compensation of approximately $330,000.00 to $350,000.00 per
year, $1200.00 per month for health insurance for Husband and the children, a place for
Husband to live in Washington, travel expenses for Husband between Washington and
Indiana, and travel expenses for two visits per year to Washington by the children. The
Employment Agreement also allowed Husband to work in Elkhart 70% of the time, so
Husband relocated to Elkhart. The term of the Employment Agreement is January 1,
2006, through December 31, 2008.
On February 14, 2006, Husband filed another Petition to Modify Support
(“Second Petition to Modify Support”), in which he alleged that there had been “material
changes in circumstances that have occurred which make the current order
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unreasonable.” Appellant’s App. p. 66. During the hearing on the petition, Husband
testified regarding his new Employment Agreement and stated that he expected to receive
another pay raise because he had recently been appointed medical director with Olympic
Medical Physicians.
Wife’s attorney made a request for attorney fees relating to
Husband’s Second Petition to Modify Support and submitted an Attorney Fee Affidavit.
After the hearing, the trial court entered an order granting Husband’s petition. The order
provides, in pertinent part:
[Husband] filed his [Second Petition to Modify Support] on February 14,
2006. The evidence established that [Husband] left a job in the Goshen
area in 2002 which paid an annual salary of $754,590.00, $142,202.00 less
than his gross income in 2001. In 2005 [Husband] earned a gross salary of
$293,512.00. For 2006, [Husband] testified that he will earn between
$330,000.00 and $350,000.00 in salary. [Husband] is also provided with
transportation expenses for the children to visit Seattle, Washington and is
provided free housing in Seattle when he is working in that area, but the
value of the benefits was not placed in evidence. The court finds
[Husband’s] gross income for 2006 is or will be $350,000.00 and child
support will be based on that income. [Husband] has worked at the reduced
income for a period sufficient to allow him his request for modification.
Id. at 49-50. The order further provided: “[Husband] will continue to pay the private
school expenses for the children and that sum shall be included in the calculation of child
support[.]” Id. at 50. The trial court ordered the parties to submit a child support
worksheet. After receiving the child support worksheet, the trial court entered an order
reducing Husband’s child support obligation to $1196.10 per week. The trial court also
denied Wife’s request for attorney fees. 1 Wife now appeals.
Discussion and Decision
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The parties do not direct us to anything in the record that indicates that the trial court either
granted or denied Wife’s request for attorney fees. Nonetheless, the parties agree that the trial court did
deny the request.
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On appeal, Wife argues that the trial court abused its discretion in granting
Husband’s Second Petition to Modify Support and in denying Wife’s request for attorney
fees.
I. Modification of Child Support
Wife first contends that the trial court abused its discretion in granting Husband’s
Second Petition to Modify Support. 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 only be modified:
(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 § 31-16-8-1.
Here, Husband proceeded under subsection (1). The initial support order was
based on the trial court’s finding that Husband was voluntarily underemployed. See
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Appellant’s App. p. 55. Husband’s Second Petition to Modify Support alleged that there
had been “material changes in circumstances that have occurred which make the current
order unreasonable.” Appellant’s App. p. 66. In effect, Husband was asking the trial
court to find that he was no longer voluntarily underemployed. The trial court did so,
finding, “[Husband] has worked at the reduced income for a period sufficient to allow
him his request for modification.” Id. at 50. On appeal, Wife essentially contends that
the trial court abused its discretion in determining that Husband is no longer voluntarily
underemployed. We cannot agree.
The Indiana Child Support Guidelines specifically acknowledge that parents often
take drastic measures, such as becoming unemployed or underemployed, merely to
liberate themselves from their child support obligations. Gilpin v. Gilpin, 664 N.E.2d
766, 767 (Ind. Ct. App. 1996); see also Ind. Child Support Guideline 3(A)(3). The
Guidelines attempt to discourage such efforts by giving the trial court wide discretion to
impute potential income to a parent when the court is convinced that the parent’s
unemployment or underemployment has been contrived for the sole purpose of evading
support obligations. Gilpin, 664 N.E.2d at 767-68. However,
[w]hile some parents may become unemployed or underemployed in an
attempt to relieve themselves of significant child support obligations,
legitimate reasons may also exist for parents to leave employment or take a
lower paying job, and child support orders are not to be used as a tool to
promote a society where all work to their full economic potential or where
parents are forced to base their career decisions strictly upon the size of
potential paychecks.
Homsher v. Homsher, 678 N.E.2d 1159, 1164 (Ind. Ct. App. 1997).
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In this case, the trial court was apparently convinced at the time of dissolution that
Husband had taken a lower paying job in an effort to minimize his child support
obligation. But a finding of voluntary underemployment is not permanent. See id. Just
as a trial court has discretion to impute income to a parent in the first instance, it must
have discretion to cease the imputation of income at a later date.
The evidence
establishes that nearly three years passed from the date on which Husband left his
employment with Goshen Radiology—February 28, 2003—to the date on which
Husband filed his Second Petition to Modify Support—February 14, 2006. In addition,
Husband’s reduced income will continue through at least 2008 by virtue of the
Employment Agreement he signed in December 2005. This evidence is sufficient to
support a conclusion that Husband’s decision to leave Goshen Radiology was not,
contrary to the original trial court’s finding, simply a temporary ploy meant to minimize
his child support obligation. Furthermore, there is evidence that Husband’s income has
risen steadily—from $235,519.00 in 2004 to $350,000.00 in 2006—since he left Goshen
Radiology, and he testified that he had been appointed as medical director with Olympic
Medical Physicians and expected another pay increase. This evidence tends to show that
Husband is not actively seeking to work at a reduced income for the sole purpose of
evading support obligations. See Gilpin, 664 N.E.2d at 767-68. Therefore, the trial court
did not abuse its discretion in granting Husband’s Second Petition to Modify Support.
II. Attorney Fees
Wife also argues that the trial court abused its discretion in denying her request for
attorney fees related to Husband’s Second Petition to Modify Support. She also asks us
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to order Husband to pay her appellate attorney fees. However, her claims rely solely
upon her argument that the trial court abused its discretion in granting Husband’s Second
Petition to Modify Support. Because we rejected that argument, we must also reject
Wife’s claims regarding attorney fees.
Affirmed.
BAILEY, J., and BARNES, J., concur.
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