Sandra Mourfield v. Melvin Mourfield

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.

FILED Jun 18 2012, 9:55 am ATTORNEY FOR APPELLANT: CLERK of the supreme court, court of appeals and tax court WESLEY D. SCHROCK Anderson, Indiana

IN THE COURT OF APPEALS OF INDIANA

SANDRA MOURFIELD, )

)

Appellant-Respondent, )

)

vs. ) No. 48A05-1111-DR-666

)

MELVIN MOURFIELD, )

)

Appellee-Petitioner. )

) APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Thomas Newman, Jr., Judge Cause No. 48D03-0609-DR-871 June 18, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge

Case Summary

Sandra Mourfield (“Mother”) appeals the trial court’s decision in favor of her former husband, Melvin Mourfield (“Father”). Mother contends that the trial court erred by granting Father’s petition for modification of child support due to his retirement. We conclude that the trial court erred by decreasing Father’s child-support obligation on the basis of his retirement and corresponding decrease in income because that retirement was necessitated by Father’s intentional criminal misconduct. We reverse and remand.

Facts and Procedural History

By February 2011, Father and Mother’s relationship was strained and Father was charged with stalking Mother.1 Shortly thereafter, the parties’ marriage was dissolved, and Mother was granted legal and physical custody of the parties’ two daughters. Father was ordered to pay $167 per week in child support.

When Father’s employer, a railroad company, learned that Father had been charged with stalking Mother, they suspended him. See Tr. p. 38. The railroad company then asked Father, who was fifty-nine years old at the time, to retire. He agreed to do so. Id. (“So the railroad company basically pulled me out of service and forced me to retire.”). In March, Father filed a petition to modify his child-support obligation. He claimed that $167 per week was no longer an appropriate amount of child support because he had retired and his income was reduced. After a hearing, the trial court entered an order reducing Father’s child-support obligation to $116 per week. No findings accompanied the trial court’s order. Mother filed a motion to correct error, which the trial court denied.

Mother now appeals.

Discussion and Decision

At the outset, we note that Father did not file an appellee’s brief. Under that circumstance, we do not undertake to develop the appellee’s arguments. Branham v. Varble, 952 N.E.2d 744, 746 (Ind. 2011). Rather, we will reverse upon an appellant’s prima facie showing of reversible error. Id.

Mother raises one issue on appeal: whether the trial court erred when it found that Father had shown a substantial and continuing change in circumstances that warranted a modification of support. Mother contends that Father committed an intentional act of criminal misconduct that caused the reduction in his income, and for this reason, it was error for the trial court to reduce Father’s child-support obligation.

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.2 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.

Indiana Code section 31-16-8-1, which governs the modification of support orders, provides in pertinent part:

(a) Provisions of an order with respect to child support . . . may be modified or revoked. (b) Except as provided in section 2 of this chapter, modification may be made only:

(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable . . . .

This Court addressed intentional misconduct and child-support modification in Carmichael v. Siegel.3 In that case, we considered whether a parent-obligor who engaged in non-criminal misconduct could seek a modification when that misconduct resulted in a decrease in income. 754 N.E.2d 619, 633 (Ind. Ct. App. 2001). In Carmichael, father, an attorney, engaged in professional misconduct and his law license was suspended as a result. Unable to practice law, his income decreased. He then sought a modification of his support obligation. We concluded that

If a parent’s intentional misconduct directly results in a reduction of his or her income, no corresponding decrease in his or her child support obligation should follow, because such misconduct results in “voluntary underemployment” according to Child Support Guidelines 3(A)(3), and the income the parent was earning before that misconduct should be imputed to that parent.

Id.

We find that the reasoning of Carmichael applies here and prevents Father from benefitting from his intentional criminal misconduct by obtaining a decrease in his child- support obligation. Father sought a modification of his support obligation because he retired and his income decreased. However, his retirement was a direct consequence of his intentional criminal misconduct—his stalking of Mother. We conclude that the trial court abused its discretion when it modified Father’s child-support obligation from $167 to $116 per month, thus allowing Father to benefit from his criminal actions. We reverse the trial court’s modification of Father’s child-support obligation and instruct the trial court to enter a new order that reflects Father’s original child-support obligation.

Reversed and remanded.

CRONE, J., and BRADFORD, J., concur.