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.
Jul 23 2009, 9:10 am
of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: JOEL K. STEIN Lynn and Stein, P.C. Wabash, Indiana
ATTORNEY FOR APPELLEE: MATTHEW R. SHIPMAN Bloom Gates Sigler & Whiteleather Columbia City, Indiana
IN THE COURT OF APPEALS OF INDIANA
ROGER KINZIE, Appellant-Respondent, vs. BRENDA KINZIE MONTEL, Appellee-Petitioner. ) ) ) ) ) ) ) ) )
APPEAL FROM THE WABASH CIRCUIT COURT The Honorable Robert R. McCallen III, Judge Cause No. 85C01-0503-DR-129
July 23, 2009 MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Chief Judge
Appellant-respondent Roger Kinzie appeals the trial court’s decree of dissolution of his marriage to appellee-petitioner Brenda Kinzie Montel. Roger argues that the trial court erred by refusing to set aside for child support a portion of the equalizing payment to be made to Brenda. Finding no error, we affirm. FACTS Brenda and Roger were married on December 20, 1988. Three children were born of the marriage, two of whom were still unemancipated minors at the time of the dissolution hearing. On March 7, 2005, Brenda filed a petition for dissolution of the marriage. Brenda and Roger reached an agreement about the division of their marital estate. Among other things, they agreed that Roger would retain the marital residence and make an equalizing payment of $58,000 to Brenda. They also agreed that they would share joint legal custody and that Roger would have sole physical custody of the two minor children, with Brenda having visitation rights. Brenda suffers from severe depression, tr. p. 16, and receives Supplemental Security Income (SSI)1 because of that disability. She is unable to work and receives SSI in the amount of $640 per month, which the Social Security Administration has determined is the subsistence level for an individual person. Under SSI, no benefits are received by the recipient’s dependents. Roger’s gross income is $600 per week.
“SSI is a federal social welfare program designed to assure that the recipient’s income is maintained at a level viewed by Congress as the minimum necessary for the subsistence of that individual.” Cox v. Cox, 654 N.E.2d 275, 277 (Ind. 1995). To obtain SSI, an individual must prove that she is unable “to do any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 416.905(a).
Following a November 5, 2008 hearing, the trial court issued a decree of dissolution and an incorporated order on custody, support, maintenance, parenting time, and property distribution on January 23, 2009. In pertinent part, the trial court ordered as follows: 2. The Court now terminates [Brenda’s] child support obligation previously entered. If [Brenda’s SSI] and/or disability status with the United States’ Social Security Administration changes in the future, [Brenda] shall notify the Court within seventy-two (72) hours of such change so that child support can be modified accordingly. *** 4. The Court further declines invitation to order that a portion of [Brenda’s] settlement be set aside for child support/college expense purposes. The Court specifically notes that [Brenda] is presently disabled and receiving $640.00 a month. The Court does not believe, had the marriage remained intact, that her situation would be any different. Further such amount is a minimum subsistence level.
Appellant’s App. p. 9-10. The trial court also ordered Roger to make an equalizing payment of $58,000 to Brenda and offset the payment by $2,200, which was the amount of Brenda’s child support arrearage. Roger now appeals. DISCUSSION AND DECISION Roger argues that the trial court should have ordered a portion of the equalizing payment to be set aside for child support and possible future college expenses. Though Roger does not dispute the trial court’s decision to impose no weekly child support obligation on Brenda, he is essentially arguing that the trial court erred in calculating the amount of child support for which Brenda is responsible. See McGill v. McGill, 801
N.E.2d 1249, 1251 (Ind. Ct. App. 2004) (noting that SSI is “explicitly excluded from a parent’s income for the purpose of computing child support” under the Indiana Child Support Guidelines). A trial court’s calculation of child support is presumptively valid. Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008). We reverse a decision regarding child support only if it is clearly erroneous or contrary to law. Id. In conducting our review, we will not reweigh the evidence and will consider only the evidence most favorable to the judgment. Saalfrank v. Saalfrank, 899 N.E.2d 671, 674 (Ind. Ct. App. 2008). In support of his argument that the trial court should have set aside a portion of the equalizing payment for child support, Roger directs our attention to Indiana Code section 31-16-6-3, which provides that “[a]s part of the child support order the court may set apart the property of either parent or both parents that appears necessary and proper for the support of the child.” (Emphasis added). Assuming solely for argument’s sake that this statute applies to the facts of this case, we note that the language of the statute is permissive rather than compulsory. In deciding whether to set off the requested funds, the trial court considered the factors set forth in Indiana Code section 31-16-6-1, including the financial resources of the custodial and noncustodial parents, the standard of living the children would have enjoyed if the marriage had not been dissolved, and the physical or mental condition of the child and the child’s educational needs. The record reveals that both parties’ financial resources are limited. The marital residence was the only significant asset in the marital estate, and $58,000 represents one half of its value. Brenda is unable to work; therefore, her only income is the monthly 4
subsistence-level SSI payment of $640. The trial court found that Brenda’s situation— i.e., being disabled and unable to work—would not have been any different had the parties remained married. The logical conclusion from that finding is that Roger’s income would have paid for the children’s medical and college expenses either way. Nothing in the record contradicts these findings or leads us to conclude that the trial court’s decision to decline to set off a portion of the equalizing payment was clearly erroneous. Brenda has stated that she intends to use the equalizing payment to purchase a home, since she will not have significant available cash. Roger argues that if she does not purchase a home, she will have significant funds on hand that should be taken into consideration when calculating child support. In the alternative, he insists that her SSI benefits could cease, at which time she might owe weekly child support. Any of these scenarios are possible. The trial court directed Brenda to notify it within seventy-two hours if her SSI status changed. If that occurs, or if Brenda elects to retain the cash rather than purchase a home with it, Roger would be free to file a motion to modify her child support obligation. At this time, however, the argument is premature. We acknowledge that Roger is shouldering the lion’s share of the financial burden of caring for their children. This situation is a difficult one for all involved. Brenda is simply unable to earn a sufficient income to support the children financially. Unless and until that fact changes, everyone will have to manage as best as they can. Under these circumstances, we do not find that the trial court’s decision to decline to set aside a portion of the equalizing payment for child support was clearly erroneous. 5
The judgment of the trial court is affirmed. RILEY, J., and FRIEDLANDER, J., concur.