Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019 Page 1 of 21

MEMORANDUM DECISION

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

Eric E. Snouffer

Fort Wayne, Indiana

ATTORNEY FOR APPELLEE

Christopher M. Forrest

Fort Wayne, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Nicole L. (Nichter) Nolot,

Appellant-Petitioner,

v.

Christopher M. Nichter,

Appellee-Respondent.

April 2, 2019

Court of Appeals Case No.

18A-DR-1201

Appeal from the Allen Superior 

Court

The Honorable Charles F. Pratt, 

Judge

The Honorable Sherry A. Hartzler, 

Magistrate

Trial Court Cause No.

02D07-0610-DR-613

Altice, Judge.

Case Summary

[1] Nicole L. (Nichter) Nolot (Mother) appeals the trial court’s order that granted 

Christopher M. Nichter’s (Father) motion to modify child support. She raises 
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several issues on appeal that we consolidate and restate as: whether the trial 

court abused its discretion when it reduced Father’s child support obligation 

and, in so doing, declined to impute potential income to Father.

[2] We affirm.

Facts & Procedural History

[3] Mother and Father married in February 1999. They have three children, born 

between 1999 and 2003. In 2001, Father and two business partners 

incorporated a business called Marquis Consulting Services, Inc., which

provided solutions to states for the processing and production of driver’s 

licenses and identification cards. In October 2006, Mother filed a petition for 

dissolution. The parties entered into a mediated settlement agreement, which 

the trial court approved and incorporated into its February 2007 decree of 

dissolution. By that time, Marquis Consulting was owned by Father and one 

partner and was valued at $301,000, according to a valuation that Father 

obtained from a third party.1

 As is relevant here, the decree awarded all interest 

in Marquis Consulting to Father; Father was to pay Mother $26,600 per year in 

maintenance for five years, and she was awarded an equalization judgment in 

the amount of $50,500. In addition, Father was to pay $566 per week for the 

support of the parties’ children.

 

1 In their settlement agreement, the parties agreed to waive formal discovery as to the value of assets and 

liabilities comprising the marital estate.
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[4] In January 2013, Mother filed a petition for modification of child support. The 

parties entered into a mediated settlement agreement, and, on August 20, 2014, 

the trial court issued an Order Approving Mediated Settlement Agreement 

(August 2014 Order). The August 2014 Order reflected the parties’ agreement 

that Father would pay $2200 per week in child support, which was based on 

weekly gross income figures of $30,862 (or $1,604,824 per year) for Father and 

$703.85 for Mother. The $2200 figure was a downward deviation from the 

recommended support obligation, but the parties agreed that $2200 was 

appropriate and satisfied the current needs of the children. 

[5] Later in 2014, Father and his partner sold Marquis Consulting (the company)

along with an associated real estate holding company called CM260

Enterprises2 to a third party. Under the terms of the sale, Father received lump 

sum payments of $14,000,000 in 2014 and $2,000,000 in 2016, and a one-time 

payment in 2017 of $177,000, which was based on the company’s performance. 

As part of the sale, Father executed a covenant not to compete. Also, as part of 

the sale and in transitioning the company to new ownership, Father agreed to 

continue working for the new company until on or about December 2015 with 

an annual salary of approximately $80,000. Father retired in April 2016. 

 

2 Father testified that CM260 was a real estate holding company that he and his partner created to purchase 

the building that would be leased to Marquis Consulting. He stated that CM260 was not appraised in the 

sale process and that he and his partner sold it for what they had paid for it. 
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[6] In April 2017, Father filed a petition to modify parenting time, custody, and 

child support, and the matter was set for a January 12, 2018 hearing.

3

 Prior to 

the start of the hearing, the parties submitted a stipulation as to parenting time 

and custody, such that the only issue left for the trial court’s determination was 

child support. Father requested that the trial court issue special findings and 

conclusions.

[7] Father testified at the hearing that he retired in April 2016 and does not intend 

to return to paid employment. He said that, prior to the sale of the company, 

he was working 60-100 hours per week. He stated that his partner was initially 

the primary force in selling the company, but that he supported the idea, both 

because he could not operate the company without his partner and because the 

long hours and stress were affecting his health, noting that he had been 

diagnosed with atrial fibrillation. Father stated that, since the time that he sold

Marquis and CM260, he lives off interest and investment income and also has 

utilized funds in his bank accounts. Father testified and presented evidence 

showing that for the last several years his investment income had been around 

 

3 On January 2, 2018, the parties filed a Joint Notice of Exclusion of Confidential Information from Public 

Access, agreeing that all testimony and exhibits presented by both parties at the January 12 hearing would be 

“Not for Public Access,” and on January 4, 2018, the trial court issued an order approving the joint notice 

and issuing a protective order, which among other things directed that “The Stipulation and Protective Order 

shall survive the entry of judgment of order in this action, . . . including any appeal thereof, . . . and shall 

continue in full force and effect, without limitation in time, subject to further order of the Court or 

modification by agreement of all Parties to the agreement.” Appellant’s Appendix Vol. 2 at 88. On appeal, the 

parties initially filed their briefs and the record as “not for public access,” and each filed Notice of Exclusion 

of Confidential Information from Public Access, relying on the trial court’s January 4, 2018 order. This 

court, on November 9, 2018, issued two related orders finding that the trial court’s January 4, 2018 order was 

issued without a prior hearing and was “insufficient to exclude” the briefs, appendix, transcript, and exhibits 

from public access and ordering that “[n]o information shall be excluded from public access” on appeal. 
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$300,000 – $311,314 in 2015, $290,000 in 2016, and approximately $300,000 in 

2017 – which figures he said were reduced by around $91,000 in management 

fees. He testified that he also had an ownership interest in a company that 

owned a rental property in Hawaii and that it was currently operating at a loss. 

Father stated that, as of the time of the January 2018 hearing, he owed 

$6,700,000 in lines of credit for which he paid $15,000 per month in interest. 

Father was questioned about his current source of income and what income he 

anticipated in the future, and he responded that it was currently and would 

continue to be investment income. Father submitted a proposed child support 

worksheet in which Father had an obligation of $505.47 per week, based on a 

weekly gross income for Father in the amount of $3997 (x 52 = $207,844 per 

year) and for Mother in the amount of $1736, which reflected her income from 

employment increased by in-kind benefits from her current husband’s 

restaurant.

[8] Mother cross-examined Father as to his net worth for the preceding several 

years based on some financial statements, and she questioned him about 

expenses that exceeded his investment income. She presented and questioned 

Father about his 2015 and 2016 tax returns. The 2015 return showed regular 

income of $379,628 ($311,314 in interest and dividends on Marquis Consulting 

proceeds and $68,284 for employment with Marquis), and the 2016 return 

showed regular income of $321,349 ($290,188 in interest and dividends and 

$31,161 for employment with Marquis). The 2015 and 2016 returns also 

reflected sales of short-term and long-term capital assets exceeding $1.8 million 
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and $2.9 million, respectively. She presented evidence of withdrawals from 

bank accounts, some of which included distributions as well as capital gains 

from the sales of assets. Mother sought to show that Father had expenditures of 

over $2,000,000 in 2016 and again in the first nine months of 2017. Father 

acknowledged that he had withdrawn money from his accounts to buy vehicles, 

improve his home, and other large expenditures in 2014-2016, but he did not 

anticipate continuing to do so in the same way, as it would exhaust his savings. 

With regard to the large expenditures, Father explained that, for some years 

leading up to the sale of Marquis, he and his partner were pouring their earned 

income back into the company. For instance, he stated that although his 2014 

Schedule K-1 indicated that he earned approximately $1.6 million, he actually 

took out only $500,000 and kept the remainder in the company. He testified

that, once the sale of Marquis was completed, he proceeded with expenditures

for home improvements and other large purchases, which he had been delaying.

Father stated that another reason that he withdrew large sums was to make tax 

payments. He also testified that he did not actually receive all monies that 

appeared as withdrawals on his bank statements because some of those monies 

were reinvested in investment accounts. 

[9] Mother testified as to her annual income of $47,700. She said that she learned 

that Father had sold his business when, in the latter half of 2015, she “saw 

something published” about it. Transcript Vol. 2 at 137. Mother submitted two

proposed child support worksheets. In one worksheet, Father had a child 

support obligation of $4929.47 per week, based on a weekly gross income for 
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Father in the amount of $42,863 (x 52 = $2,228,876 per year) and a weekly 

gross income for Mother in the amount of $913 (x 52 = $47,476 per year). In 

the second worksheet, Father had a weekly child support obligation of $5266.90 

per week, based on a weekly gross income for Father in the amount of $45,795 

(x 52 = $2,381,340 per year) and a weekly gross income for Mother in the 

amount of $913 (x 52 = $47,476 per year). 

[10] In seeking modification of child support, Father’s position was that there had 

been a substantial and continuing change of circumstances since the August 

2014 Order in that he no longer earned what he was earning at that time 

because he had sold his businesses, retired, and did not intend to return to paid 

employment. Father maintained that he lived on his annual investment 

income, reduced by management fees, but acknowledged that he sometimes 

withdrew funds from investment accounts as well. Mother’s position was that 

Father’s lifestyle and expenses far exceeded his investment income, which she 

maintained reflected that Father did not live exclusively on investment income 

as he claimed, and therefore, in addition to investment income, capital gains 

from sales of investment assets as well as other distributions should be 

considered in calculating Father’s weekly gross income for child support 

purposes. 

[11] On April 18, 2019, the trial court issued Confidential Findings of Fact and 

Conclusions of Law, which modified and reduced Father’s child support 

obligation to $682 per week, based on a weekly gross income for Father of 

$5784 (x 52 = $300,768 per year) and a weekly gross income for Mother of $913 
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(x 52 = $47,476). The trial court’s findings and conclusions included the 

following:

24. The Court finds that Father has utilized the funds from the 

sale of his business to make significant expenditures to support 

his lifestyle, however, the source of those funds are from the sale 

of an asset that he was awarded in the parties’ dissolution. The 

Court finds that Father lives solely on his investment income 

earned from the sale of his company. Father also owns a rental

company that holds real estate in Hawaii. The Court finds 

through Father’s testimony that the rental company does not 

make a profit and that Father loses money as a result of that 

company and its Hawaii real estate. Father’s 2015 and 2016 tax 

returns demonstrate that Father did claim a loss related to the 

operation of the Hawaii real estate for both years.

25. The Court finds that for the years 2015 an[d] 2016, Father 

earned an average of $300,751.00 in interest and dividends on 

investments attributable to the sale of Marquis Consulting.

* * *

34. In this matter the parties dispute whether the capital gains 

from the sale of Father’s business should constitute income 

within the meaning of the Guidelines.

* * *

36. Here the parties agreed and it was ordered that Father be 

awarded the Marquis Consulting Services, among other things, 

as part of the equitable division of the marital estate. As also a 

part of the equitable division of the marital estate, Mother was 

also granted property as well as a property equalization judgment 

in the amount of $50,500.00.
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37. Thus, the Court having considered the capital gains from the 

sale of Marquis Consulting, the Court now concludes that to 

“utilize the capital gain from Father’s sale of the business interest 

in the calculation of his weekly gross income would “usurp the 

equitable split of the marital property in the [Marital Settlement 

and Decree of Dissolution].” [Scoleri v. Scoleri, 766 N.E.2d 1211, 

1217 (Ind. Ct. App. 2002).]

Appellant’s Appendix Vol. 2 at 36-38. 

[12] In rejecting Mother’s request to assign potential income to Father, the court

recognized the following considerations: (1) “[T]he purpose behind 

determining potential income is to [] ‘discourage a parent from taking a lower 

paying job to avoid the payment of support,’” and “[t]he Court does not 

conclude that Father sold his business to avoid the payment of significant 

support”; (2) Father “still earns a significant income from his interest and 

dividends on his investments”; (3) Father’s prior employment was lucrative but 

he “cannot pursue this same level of employment considering the covenant not 

to compete”; (4) “[t]here was no evidence presented to establish that there were 

prevailing job opportunities and earnings levels in the community by which 

Father could earn the nearly 1.6 million dollars per year”; and (5) [i]t was 

undisputed that Father was working 60-100 hours per week, and the Guidelines 

should not be used to require a parent to continue working sixty-hour weeks 
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“just to meet a support obligation that is based on that higher level of earnings.” 

Id. at 39.4

 Mother now appeals. 

Discussion & Decision

[13] Mother contends that the trial court erred when it granted Father’s request to 

modify child support and reduced his support obligation. In dealing with 

family law matters, “our review is conducted with ‘a preference for granting 

latitude and deference to our trial judges.’” Miller v. Miller, 72 N.E.3d 952, 955 

(Ind. Ct. App. 2017) (quoting In re Marriage of Richardson, 622 N.E.2d 529, 532 

(Ind. 1993)). We will reverse a trial court’s grant or denial of a request for 

modification of child support only where the court has abused its discretion. 

Sandlin v. Sandlin, 972 N.E.2d 371, 375 (Ind. Ct. App. 2012). An abuse of 

discretion occurs when the trial court misinterprets the law or the decision is 

clearly against the logic and effect of the facts and circumstances before the 

court. Id. We do not reweigh the evidence or judge the credibility of the 

witnesses upon review; rather, we consider only the evidence most favorable to 

the judgment and the reasonable inferences to be drawn therefrom. Id. A 

calculation of child support under the Guidelines is presumed to be valid. Id. 

[14] In granting Father’s petition to modify child support, the trial court entered 

written findings of fact and conclusions pursuant to Father’s request. When 

 

4 Determining that “Father’s resources and economic condition is by far superior to Mother’s,” the trial court

ordered Father to pay $15,000 in Mother’s attorney fees. Appellant’s Appendix Vol. 2 at 40.
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findings of fact and conclusions thereon are entered by the trial court, we apply 

a two-tiered standard of review:

[F]irst, we determine whether the evidence supports the findings 

and second, whether the findings support the judgment. We do 

not weigh the evidence or judge the credibility of the witnesses 

but, rather, consider only that evidence most favorable to the 

judgment, together with the reasonable inferences that can be 

drawn therefrom. 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, we do not defer to conclusions of law, 

and a judgment is clearly erroneous if it relies on an incorrect 

legal standard.

Miller v. Sugden, 849 N.E.2d 758, 760 (Ind. Ct. App. 2006), trans. denied

(citations omitted). 

[15] In this appeal, Mother claims that the trial court abused its discretion when 

calculating Father’s weekly gross income because (1) it was “based solely on the 

interest and dividends” – and did not include imputed potential income or inkind income – “despite the unrefuted evidence of [Father’s] voluntary 

unemployment, lavish lifestyle, and bank records depicting substantial 

expenditures;” and (2) it “exclude[ed] Father’s capital gains from his income.” 

Appellant’s Brief at 8-9. We address each argument in turn.

1. Potential Income

[16] The starting point in determining the child support obligation of a parent is to 

calculate the weekly gross income for both parents. Ind. Child Support 
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Guideline 3(A), cmt. 2. Weekly gross income is defined as “actual weekly gross 

income of the parent if employed to full capacity, potential income if 

unemployed or underemployed, and imputed income based upon in-kind 

benefits.” Child Supp. G. 3(A)(1). “If a court finds a parent is voluntarily 

unemployed or underemployed without just cause, child support shall be 

calculated based on a determination of potential income.” Child Supp. G. 

3(A)(3). A determination of potential income shall be made by determining 

employment potential and probable earnings level based on the obligor’s work 

history, occupational qualifications, prevailing job opportunities, and earnings 

levels in the community. Id. The commentary to Guideline 3 provides some 

insight into the purpose of attributing potential income to a parent: One 

purpose is “to discourage a parent from taking a lower paying job to avoid the 

payment of significant support” and another is “to fairly allocate the support 

obligation when one parent remarries, and because of the income of the new 

spouse, chooses not to be employed.” Child Supp. G. 3, cmt. 2(c).

[17] While trial courts have “wide discretion with regard to imputing income to 

ensure the child support obligor does not evade his or her support obligation,”

child support orders cannot be used to force parents to work to their full 

economic potential or make their career decisions based strictly upon the size of 

potential paychecks. Meredith v. Meredith, 854 N.E.2d 942, 947 (Ind. Ct. App. 

2006); Sugden, 849 N.E.2d at 761. “‘Obviously, a great deal of discretion will 

have to be used in this determination.’” Miller, 72 N.E.3d at 955 (quoting Child 

Supp. G. 3(A), cmt 2(c)). Indeed, we will reverse a trial court’s decision 
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regarding a parent’s unemployment or underemployment and imputation of 

potential income only for an abuse of discretion. In re Paternity of Pickett, 44 

N.E.3d 756, 762 (Ind. Ct. App. 2015). In determining whether the trial court 

abused its discretion, we do not reweigh the evidence or judge the credibility of 

witnesses, and we consider only the evidence and reasonable inferences 

favorable to the judgment. Id.

[18] Here, in calculating child support, the trial court used the weekly gross income 

figure that Mother proposed for herself. For Father, it used a weekly gross 

income figure that was more than Father had proposed but less than Mother 

had proposed. The figure was an amount that the trial court determined 

represented Father’s annual investment income, although not reduced by the 

management fees as Father had requested.

[19] In challenging the trial court’s calculation of Father’s weekly gross income, and, 

more specifically, its decision not to attribute potential income to him, Mother

argues that the trial court “erroneously concluded that in order to attribute 

potential income to a parent, the court must find that the parent altered his 

income to avoid the payment of support or other improper motive.”5

 Appellant’s 

Brief at 9. Stated differently, Mother claims that the trial court was under the 

mistaken belief that, because the court had found that Father’s retirement was 

 

5 Mother refers to Finding No. 19, in which the trial court found that Father did not have any improper 

motives for his retirement and Conclusion No. 42(c), in which the trial court concluded that Father did not 

sell his business to avoid the payment of significant support.
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not based on a desire to avoid child support or other improper motive, it could 

not impute potential income to him. 

[20] As Mother correctly observes, a parent’s avoidance of child support is “not a 

necessary prerequisite” to imputing income. See Pickett, 44 N.E.3d at 766. That 

is, “it is within the trial court’s discretion to impute potential income even 

under circumstances where avoiding child support is not the reason for a 

parent’s unemployment.” Id. However, contrary to Mother’s suggestion that 

the trial court misunderstood this premise, the trial court’s decision to not 

impute income was based on a number of considerations. 

[21] Again, those reasons, summarized, were: (1) Father did not sell his business to 

avoid the payment of significant support; (2) Father still earns a significant 

income from his interest and dividends on his investments; (3) Father’s prior 

employment was lucrative but he “cannot pursue this same level of 

employment considering the covenant not to compete;” (4) there was no 

evidence presented concerning prevailing job opportunities and earnings levels 

in the community “by which Father could earn the nearly 1.6 million dollars 

per year”; and (5) Father was working 60-100 hours per week, and the 

Guidelines should not be used to require a parent to continue working sixtyhour weeks “just to meet a support obligation that is based on that higher level 

of earnings.” Appellant’s Appendix Vol. 2 at 39. The trial court’s order thus 

reflects that, in declining to attribute potential income to Father, the court

considered five circumstances, including but not limited to the fact that Father 

did not sell his business to avoid payment of support. Accordingly, its decision 
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was not, as Mother argued, based only on the finding that Father did not retire 

in order to avoid paying support.

[22] Mother also challenges the following sentence included in Finding No. 24: 

“The Court finds that Father lives solely on his investment income earned from 

the sale of his company.” Id. at 36. She argues, “This finding is contrary to the 

evidence presented and it was erroneous for the Trial Court not to impute 

income to Father based on his expenditures.” Appellant’s Brief at 9. Mother is 

correct to the extent that evidence presented reflects that in the past few years

Father did not live exclusively on his investment income, as his expenditures 

had exceeded that income, and Father acknowledged that he accessed the 

proceeds from the sale of his businesses to maintain his lifestyle, pay his bills, 

travel, improve his home, and buy vehicles. However, Father testified that in 

2018 and the foreseeable future, he anticipated living on the income and 

distributions from his investment accounts, noting that he would not and could 

not sustain the large expenditures that he made in prior years. We also observe 

that Finding 24, in full, stated:

The Court finds that Father has utilized the funds from the sale 

of his business to make significant expenditures to support his 

lifestyle, however, the source of those funds are from the sale of 

an asset that he was awarded in the parties’ dissolution. The 

Court finds that Father lives solely on his investment income earned from 

the sale of his company. Father also owns a rental company that 

holds real estate in Hawaii. The Court finds through Father’s 

testimony that the rental company does not make a profit and 

that Father loses money as a result of that company and its 

Hawaii real estate. Father’s 2015 and 2016 tax returns 
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demonstrate that Father did claim a loss related to the operation 

of the Hawaii real estate for both years.

Id. at 36 (emphasis added). Thus, in our view, Finding 24 when read in its 

entirety and in context with the remainder of the court’s findings and 

conclusions reflects that the trial court recognized that Father utilized funds

from the sale to support his lifestyle but determined that those funds would not 

be included in Father’s weekly gross income. We do not find Finding 24 to be 

clearly erroneous.

[23] Father asserts that “[e]ven if the Trial Court could have included additional 

amounts in Father’s weekly gross income, it was not required to do so[.]” 

Appellee’s Brief at 10. We agree. While it is undisputed that Father voluntarily 

retired after selling his businesses, this is not a situation in which Father makes 

no or little income. He still earns in the range of $300,000 per year on his 

investments. Although he was earning considerably more before he sold the 

businesses, evidence was presented that he had been working 60-100 hour 

weeks and that he believed his health was being impacted by the stress and long 

hours. Our Guidelines are not to be used to force parents to work to their full 

economic potential or make their career decisions based strictly upon the size of 

potential paychecks. Meredith, 854 N.E.2d at 947; Sugden, 849 N.E.2d at 761. 

Father testified that he intended to live on his investment income in the 

foreseeable future and not make the same type of large expenditures that he had 

made after the sale. The trial court evidently accepted the veracity of this 

testimony, and we will not second-guess the trial court’s assessment. See 
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Sandlin, 972 N.E.2d at 375. Additionally, we observe that Mother did not 

present any evidence of Father’s occupational qualifications, prevailing job 

opportunities, or earnings levels in the community against which to compare 

the approximately $300,000 in income that he was receiving on investments, 

other than evidence that the parties agreed in 2014 that his annual income was 

approximately $1.6 million dollars. 

[24] Based on the totality of the circumstances, the trial court decided not to assign 

potential income to Father. We conclude that it was within the trial court’s 

wide discretion to so decide. Id. (finding that trial court acted within its 

discretion to decline to impute income to mother where mother voluntarily left 

position with company to start own company); In re Paternity of E.M.P, 722 

N.E.2d 349, 351 (Ind. Ct. App. 2000) (holding that potential income would not 

be imputed to father based upon his quitting job as garbage collector to take job 

in which he earned substantially less income, where father quit job due to 

health concerns and to receive better benefits); cf. Meredith, 854 N.E.2d at 948 

(finding that it was within trial court’s discretion to find that father was 

voluntarily unemployed where he voluntarily retired from his job as foundry 

worker making $22,678 per year in addition to pension income of $21,907 (total 

of $52,565 per year) and took early retirement such that he received only 

pension income in the amount of $29,978).

2. Capital Gains

[25] In a related argument, Mother also asserts that the trial court should have 

included in Father’s weekly gross income, not only Father’s investment income, 
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but also “all monies he was utilizing to pay his living expenses and otherwise 

supporting his lifestyle,” including capital gains from sales of investments. 

Appellant’s Brief at 16. Mother is correct that Child Supp. G. 3(A)(1) provides 

that weekly gross income includes income from any source, including capital 

gains. However, the Commentary to the Guidelines recognizes the “factsensitive” nature of computing child support and cautions that determining 

income is more difficult when irregular or nonguaranteed forms of income are 

involved. Child Supp. G. 3(A), cmt. 2(b). 

[26] In this case, Father and Mother agreed when their marriage was dissolved in 

2007, he would retain his interest in Marquis Consulting, and, in exchange,

Father incurred more marital debt and paid Mother maintenance for five years 

as well as a cash equalization judgment. Father sold his businesses in 2014 and 

received lump-sum payments in 2014 and 2016 and a third payment in 2017. 

He invested those payments and earns investment income thereon. Bank 

statements and other evidence reflects that he sold and used some investments 

to make expenditures, in some years totaling over $2,000,000. Father

acknowledged that he spent more than what he earns in interest income each 

year and testified that he was living on the $300,000 income as well as “some of 

the money [he] has in the bank accounts.” Transcript Vol. 2 at 90. Mother 

maintains that “the capital gains Father realized from the sale of his income

producing assets should be attributed to him as he utilizes them.” Appellant’s 

Brief at 23. 
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[27] In declining to include the capital gains from the sale of Father’s investments in 

the calculation of his weekly gross income, the trial court stated:

37. [T]he Court having considered the capital gains from the sale 

of Marquis Consulting, the Court now concludes that to “utilize 

the capital gain from Father’s sale of the business interest in the 

calculation of his weekly gross income would “usurp the 

equitable split of the marital property in the [Marital Settlement 

and Decree of Dissolution].” Scoleri, 766 N.E.2d at 1217.

Appellant’s Appendix Vol. 2 at 38. 

[28] In Scoleri, relied on by the trial court in the present case, the parties disputed 

whether an early withdrawal from the father’s 401(k) account constituted 

income within the meaning of the Guidelines. There, as part of the parties’ 

1994 property settlement agreement, the father received the 401(k) account and 

the mother received the marital home. In December 1997, the father’s job was 

terminated due to plant closure and layoffs, and he took a lower-paying job. At 

the time that he left the company, his 401(k) was valued at $35,000. On August 

3, 1998, Father “cashed in” the full amount of his 401(k) and, less the incurred 

penalty, he received $28,000. On August 24, 1998, father filed a petition to 

modify child support due to the job change and lower income. The trial court 

denied the father’s petition and he appealed. Specifically, the father argued that 

the trial court had erred when it considered the early withdrawal from his 

retirement account as income that should be included in his child support 

obligation calculation.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019 Page 20 of 21

[29] After discussing the nature of a 401(k) plan, we determined that because the 

withdrawal was received by the father, immediately available for use, and it 

reduced the father’s living expenses, the withdrawal constituted income within 

the meaning of the Guidelines. Id. at 1217. However, this court determined 

that it was error for the trial court to include the cash withdrawal in the 

calculation of the father’s child support obligation because he had received the 

401(k) in the dissolution in exchange for Mother retaining the marital home. 

Id. at 1217-18. Specifically, we found that “to utilize the return from Father’s 

early withdrawal from his 401(k) in the calculation of his weekly gross income 

would usurp the equitable split of the marital property in the summary 

dissolution decree[,]” and, consequently, we deemed it “inequitable to utilize 

Father’s portion of the marital property, his 401(k) account, in the calculation 

of his weekly gross income.” Id. at 1217-18.

[30] Likewise, here, the parties agreed and the trial court entered a dissolution 

decree in 2007 awarding Father his business interest as part of the marital 

property distribution. Upon Father’s April 2017 petition to modify, the trial 

court determined that to utilize the capital gain from Father’s sale of 

investments – investments that represented proceeds from the sale of his 

business interests – would effectively usurp the split of marital property in the 

dissolution decree. Thus, the trial court considered the matter of capital gains, 

but concluded the gains should be excluded from the child support calculation. 

Mother has not shown that the trial court abused its discretion in doing so.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1201 | April 2, 2019 Page 21 of 21

[31] Again, “[a] trial court’s calculation of child support is presumptively valid.” 

Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008). In this case, we cannot say 

that the trial court’s determination of weekly gross income, and accompanying 

calculation of child support, was an abuse of its discretion.

[32] Judgment affirmed.

Najam, J. and Pyle, J., concur.