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.

APPELLANT PRO SE:

J.M.

Lafayette, Indiana

IN THE

COURT OF APPEALS OF INDIANA

IN RE THE PATERNITY OF B.M.: )

)

J.M., )

)

Appellant, )

)

vs. ) No. 79A05-1403-JP-115

)

M.S., )

)

Appellee. )

APPEAL FROM THE TIPPECANOE CIRCUIT COURT

The Honorable Thomas H. Busch, Special Judge

Cause No. 79C01-0003-JP-1

November 13, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
2

Case Summary

Pro-se Appellant J.M. (“Father”) appeals an order issued pursuant to a motion to 

correct error, modifying in part an order determining Father’s child support obligation for 

B.M., his child with M.S. (“Mother”); finding Father to be in contempt of court for nonpayment of child support and medical expenses; and ordering that he pay Mother’s attorney’s 

fees. We affirm in part, reverse in part, and remand with instructions.

Issues

Father articulates several issues,1 which we consolidate and restate as the following: 

whether the trial court abused its discretion by:

a. Failing to correct mathematical error in the crediting of child support 

payments made by Father;

b. Finding Father in contempt of court; and

c. Ordering Father to pay Mother’s attorney’s fees.

Facts and Procedural History

Father and Mother are the parents of B.M., born July 31, 1996. On August 15, 2002, 

Mother was awarded sole custody of B.M. Father was ordered to pay child support of 

$123.16 weekly and a portion of B.M.’s uninsured medical expenses. App. 89.

On July 14, 2003, the Tippecanoe Circuit Court issued an order providing in relevant 

part: “Child support shall continue at $100.00 per week” and “The father is current on all 

child support payments.” (App. 91.) On March 21, 2006, a Guardian ad Litem (“GAL”) was 

appointed to make recommendations in light of “ongoing problems between the parents.” 

 

1 Father fails to develop a corresponding argument as to some of his articulated issues.
3

(App. 34.) The parents were ordered to participate in family counseling and individual 

counseling. On January 13, 2011, the trial court issued an order modifying parenting time, 

ordering Father to have individual counseling sessions, and providing that “in the event there 

are further issues,” the parents were required to meet with the GAL. (App. 38.)

On September 22, 2011, counsel for Mother issued a letter to Father’s counsel stating 

that Father had failed to make his contributions to medical bills and also owed $450.00 in 

child support. On April 19, 2012, Father filed a petition to modify child support. The 

petition for modification was dismissed on July 17, 2012. On the same date, Mother filed a 

petition alleging Father was in contempt of court for non-payment of medical bills and child 

support arrearage. On July 30, 2012, upon advice of counsel, Father paid an additional 

$200.00 in cash as child support. He subsequently filed a Certification of Compliance in the 

trial court. Mother filed a petition to modify child support.

On August 21, 2013, a hearing was conducted on all pending motions. At the 

conclusion of Father’s and Mother’s testimony, the trial court ordered that Father provide 

health insurance for B.M. and ordered the parties to submit proposed findings and 

conclusions on the remaining issues.

On October 24, 2013, the trial court issued an order modifying Father’s child support 

obligation to $166.00 weekly and finding Father in contempt of court. The order stated that 

Father was to purge himself of contempt by paying $1,642.83 to Mother for medical bills 

owed for 2010 and 2011, paying a child support arrearage of $1,782.00 (as of May 5, 2013), 

and paying Mother’s attorney’s fees of $1,500.00. App. 26. Father filed a motion to correct 
4

error, claiming that his income available for child support had been over-stated and that 

$133.00 weekly was an appropriate amount. He further asserted that mathematical error had 

been reflected in the trial court’s calculation of child support arrearage and he had been in 

arrears only $200.00, which he had paid after the filing of the contempt petition. Father also 

claimed that he owed only $1,234.89 as medical expenses and Mother had failed to show that 

she had paid the first 6% of B.M.’s medical expenses, in compliance with an agreement 

reached during co-parenting counseling sessions. According to Father, the finding of 

contempt was thus unwarranted. Finally, he challenged the award of attorney’s fees and 

requested that Mother be ordered to pay his attorney’s fees.

On February 4, 2014, a hearing was conducted on the motion to correct error. On 

February 18, 2014, the trial court issued a corrected order. Pursuant to the corrected order, 

Father was to purge himself of contempt by paying $1,500.00 to Mother’s attorney, paying 

$1,782.00 in child support arrearage, and paying $1,288.99 in medical bills. Father now 

appeals.

Discussion and Decision

Standard of Review

At the outset, we note that Mother has failed to file an appellee’s brief. When the 

appellee fails to submit a brief, we need not undertake the appellee’s burden of responding to 

arguments that are advanced for reversal by the appellant. Hamiter v . Torrence, 717 N.E.2d 

1249, 1252 (Ind. Ct. App. 1999). Rather, we may reverse the trial court if the appellant 

makes a prima facie case of error. Id. “Prima facie” is defined as “at first sight, on first 
5

appearance, or on the face of it.” Id. Still, we are obligated to correctly apply the law to the 

facts in the record in order to determine whether reversal is required. Mikel v. Johnston, 907 

N.E.2d 547, 550 n.3 (Ind. Ct. App. 2009).

A trial court is vested with broad discretion to determine whether it will grant or deny 

a motion to correct error. Williamson v. Williamson, 825 N.E.2d 33, 44 (Ind. Ct. App. 

2005). Furthermore, we generally give considerable deference to the trial court’s findings in 

family law matters as the trial court is in the best position to become acquainted with the 

relationship between parents and their children. Redd v. Redd, 901 N.E.2d 545, 549 (Ind. Ct. 

App. 2009). An abuse of discretion occurs if the trial court’s decision was against the logic 

and effect of the facts and circumstances before the court or if the court has misapplied the 

law. Walker v. Kelley, 819 N.E.2d 832, 836 (Ind. Ct. App. 2004).

Where, as here, the trial court enters findings of fact and conclusions thereon without 

an Indiana Trial Rule 52 written request from a party, the entry of findings and conclusions is 

considered to be sua sponte. Dana Companies, LLC v. Chaffee Rentals, 1 N.E.3d 738, 747 

(Ind. Ct. App. 2013), trans. denied. Where the trial court enters specific findings sua sponte, 

the findings control our review and the judgment only as to the issues those specific findings 

cover. Id. Where there are no specific findings, a general judgment standard applies and we 

may affirm on any legal theory supported by the evidence adduced at trial. Id.

A two-tier standard of review is applied to the sua sponte findings and conclusions 

made: whether the evidence supports the findings, and whether the findings support the 

judgment. Id. Findings and conclusions will be set aside only if they are clearly erroneous, 
6

that is, when the record contains no facts or inferences supporting them. Id. A judgment is 

clearly erroneous when a review of the record leaves us with a firm conviction that a mistake 

has been made. Id. In conducting our review, we consider only the evidence favorable to the 

judgment and all reasonable inferences flowing therefrom. Id. We will neither reweigh the 

evidence nor assess witness credibility. Id. 

Child Support

The trial court’s “Corrected Order for October 24, 2013,” entered on February 18, 

2014, included findings of fact with regard to child support arrearage:

16. The child support printouts from the Tippecanoe County Clerk’s Office 

that were put into evidence show that between July 15, 2003 and July 17, 2012 

(the date the mother filed her contempt petition), there were 470 weeks x 

$100.00 per week, which equals $47,000.00 owed by the father for child 

support.

17. The last Court Order regarding the child support was July 14, 2003, and at 

that time the [sic] there was no arrearage owed by the father.

18. Between July 15, 2003 and July 17, 2012, the father paid support in the 

amount of $46,250.00.

19. The father’s support arrearage on July 17, 2012 was $750.00.

20. On July 30, 2012, after the mother filed her contempt petition, the father 

paid an additional $200.00 and reduced his support arrearage to $550.00.

21. In the 42 weeks from July 18, 2012 to May 3, 2013, the father has paid his 

support of $100.00 per week on a timely basis by paying $4,200.00 in 42 

weeks.

22. The father is in arrears in the amount of $550.00 as of this date not 

including any retroactive support dating back to the date the mother filed her 

modification on October 31, 2012.
7

(App. 30-31.) Father’s Exhibit B, a Tippecanoe County Clerk summary of child support 

payments, accompanied by a summation sheet, discloses payments by Father from August 16, 

2002 to July 30, 2012. Father paid $51,200.00 after the July 14, 2003 order stating there was 

no child support arrearage. For the time frame corresponding to Finding No. 18, that is –

July 15, 2003 to July 17, 2012 – Father paid $46,750.00. Thus, Findings 18, 19, 20, and 22 

are erroneous. 

Father owed $47,000.00 for the 470 weeks at issue; he paid $46,750.00 and thus was 

behind $250.00 by July 17, 2012, the date of Mother’s petition for contempt. Thereafter, 

upon advice of his former counsel that he was $200.00 in arrears, Father made a $200.00 

payment.2 This payment was recognized by the trial court. However, the trial court’s 

calculation of an arrearage incorporates mathematical error, apparently based upon Mother’s 

testimony after her attorney’s review of the payment history.3 This should be re-calculated 

upon remand. 

In addition, Father makes a cursory argument that his ongoing child support obligation 

should be lower because irregular income was improperly included in the calculation of his 

gross income available for child support purposes.4 He does not develop a supporting 

 

2 Apparently, Father’s former counsel believed that he should receive credit for a $50.00 payment made on July 

14, 2003. This was, however, likely taken into account by the trial court in the same-day order clarifying that 

Father was not in arrears. 

3 Father’s typical payment was $100.00. However, on September 17, 2007, he made a $600.00 payment. It 

appears that the $500.00 discrepancy between the calculation of Mother’s counsel and Father’s counsel may be 

attributable to $100.00 being added into a total as opposed to $600.00.

4 The Indiana Child Support Guidelines advocate a total income approach to calculating weekly gross income. 

Ratliff v. Ratliff, 804 N.E.2d 237, 245 (Ind. Ct. App. 2004). The guidelines define “weekly gross income” as 

actual weekly gross income of the parent if employed to full capacity, potential income if unemployed or 
8

argument, beyond claiming that he has not been re-elected to his part-time local trustee 

position. This factual assertion was not entered into evidence at the hearings before the trial 

court. Father does not demonstrate an abuse of discretion in the trial court’s determination of 

prospective child support.

Finally, with respect to child support, Father notes that Mother was given credit for 

the payment of health care premiums. At the conclusion of the hearing on August 21, 2013, 

the trial court ordered Father to provide health insurance for B.M. within seven days and 

ordered that child support worksheets were to show no prospective deduction for Mother. 

However, this change in worksheets was not implemented and warrants correction upon 

remand.

Contempt

Whether a person is in contempt of a court order is a matter left to the trial court’s 

discretion, and we will reverse a finding of contempt only where an abuse of discretion has 

been shown. Geesy v. Geesy, 959 N.E.2d 256, 258 (Ind. Ct. App. 2011). Contempt is not an 

available remedy in every case where a child support deficiency exists; rather, for an obligor 

to be held in contempt, it must be shown that the delinquency resulted from a willful failure 

to comply with a support order and that the delinquent parent had the ability to pay. Id.

(citing Pettit v. Pettit, 626 N.E.2d 444, 446 (Ind. 1993)).

Here, the evidence indicates that Father regularly paid child support via income 

withholding. At one point, he was in arrears in child support by $250.00 (possibly only 

 

underemployed, and imputed income based upon “in-kind” benefits. Ind. Child Supp. G.3(A).
9

$200.00 because of a July 14, 2003 payment of $50.00). Upon the filing of a petition for 

contempt and the advice of counsel, Father paid $200.00 in cash. Finding 24, providing “The 

father testified that he unilaterally stopped paying support at a point when his son was not 

visiting with him,” is not supported by the testimony of record. (App. 31.)

Father also owed medical bills of $1,288.99. It is noteworthy, however, that the 

correct obligation was not ascertained until the final order on motion to correct error. The 

previous order erroneously incorporated a 66%/34% split as opposed to 51%/49%. Too, the 

parties had not complied with a prior court order to meet with the GAL regarding problems 

and were in disagreement as to Mother’s obligation to pay 6% before billing Father and the 

degree to which documentation was necessary.

The trial court’s findings of fact include findings that: “The father has not paid his 

portion of the medical bills owed for 2010” and “The father has not paid his portion of the 

medical bills for 2011.” (App. 31.) However, the trial court does not include a finding that 

the non-compliance was in willful disobedience to a court order. Given the pervasive 

mathematical errors, and the lack of evidence of willfulness, the determination of contempt is 

contrary to the facts and circumstances before the trial court.

Attorney’s Fees

Father argues that the trial court abused its discretion when it ordered him to pay 

Mother’s attorney’s fees. He observes that Mother’s attorney submitted no affidavit of fees 

and he further contends there is an absence of evidence of contemptuous behavior on his part.
10

A trial court has broad discretion to impose attorney’s fees on either parent. 

Thompson v. Thompson, 868 N.E.2d 862, 870 (Ind. Ct. App. 2007). We will reverse an 

order for the payment of attorney’s fees only when the award is clearly against the logic and 

effect of the facts and circumstances before the court. Id. The trial court may properly 

consider the respective resources of the parties, their financial earning abilities, and “any 

other factors that bear on the reasonableness of the award.” Id. Moreover, the trial court 

may consider parental misconduct that necessitated additional legal expenses for the other 

parent. Id.

The instant award of attorney’s fees did not rest upon the respective financial 

conditions of the parties. Rather, the trial court concluded that Father should pay Mother’s 

attorney’s fees because of his contempt of court. However, as the contempt finding is 

unsupported by the evidence, the award of attorney’s fees is likewise unsupported by the 

facts and circumstances before the trial court. 

Father claims that he should receive attorney’s fees from Mother because she pursued 

an action for contempt of court without justification. According to Father, a more diligent 

review of child support records would have revealed that Father was not in arrears. That 

said, Mother’s pursuit of Father for his contribution to medical bills was not misconduct 

warranting an award of attorney’s fees to Father. 

Conclusion

Father has established, prima facie, that the calculation of child support arrearage 

includes a mathematical error and that the child support worksheet supporting the prospective 
11

child support award does not accurately reflect which parent pays medical insurance. Father 

has further shown, prima facie, that the trial court abused its discretion by finding him in 

contempt of court and ordering his payment of Mother’s attorney’s fees. We affirm in part, 

reverse in part, and remand with instructions to review the mathematical computation of past 

child support payments, correctly allocate the parental credit for health insurance payment, 

and calculate Father’s child support obligation accordingly. 

NAJAM, J., and PYLE, J., concur.