Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015 Page 1 of 20

ATTORNEY FOR APPELLANT

Donna Jameson

Greenwood, Indiana

ATTORNEY FOR APPELLEE

Stephen R. Lewis

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Tina Carmer,

Appellant-Respondent,

v.

Scott Carmer,

Appellee-Petitioner

October 30, 2015

Court of Appeals Case No.

49A05-1411-DR-539

Appeal from the Marion Superior 

Court

The Honorable Patrick L. 

McCarty, Judge

Trial Court Case No.

49D03-1401-DR-619

Mathias, Judge.

[1] Tina and Scott Carmer’s marriage was dissolved in the Marion Superior Court. 

Tina appeals the dissolution decree raising five issues, which we consolidate 

and restate as:

I. Whether the trial court abused its discretion when it failed to include 

Scott’s annuity income in the child support calculation;

II. Whether the trial court erred in interpreting the parties’ prenuptial 

agreement and deviating from that agreement; and
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III. Whether the trial court abused its discretion in its division of the 

marital liabilities.

[2] We affirm in part, reverse in part, and remand for proceedings consistent with 

this opinion.

Facts and Procedural History

[3] Tina and Scott were married in 1994, and three children were born to the 

marriage. The parties’ oldest child is emancipated. 

[4] Prior to the marriage, in 1988, Scott, who was a teenager at the time, was 

severely injured in an automobile accident. He suffered a brain injury, walks 

with a limp, and cannot use one of his arms. Monthly annuity payments from a 

structured settlement agreement are his main source of income. Scott also 

works as a greeter at Walmart and earns approximately $450 per week. 

[5] Tina was not employed during the marriage but stayed home to raise the 

parties’ children. Tina and Scott were also raising two foster children in their 

home and planned to adopt the children. After filing a petition to dissolve the 

marriage, Scott stated that he no longer wanted to adopt the children. Tina 

would like to adopt the children, but they were removed from her care after 

Child Protective Services (“CPS”) was contacted regarding the condition of her 

home. Specifically, Tina allowed the family’s pets to urinate and defecate in the 

house and did not clean up after the animals. Tina participated in services 

offered by CPS and is still attempting to adopt the children.
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[6] The parties entered into a prenuptial agreement on the day they were married. 

The agreement provides in pertinent part:

In the event of a dissolution of the marriage or of a divorce, Wife 

agrees to accept in full and final settlement and satisfaction of all 

rights claims and interest that she may have whether by way of a

division of the property of one or both of the parties (or alimony 

or a property settlement as it is sometimes referred to), and in 

every other way to the fullest extent permitted by law, of 

alimony, maintenance, rehabilitative maintenance, support or 

financial benefit of every kind.

(a) Wife’s separate property, and

(b) One half (1/2) of all jointly held property, subject to one half 

(1/2) of all indebtedness thereon, including without limitation, 

mortgages and taxes; and 

(c) The following sums dependent upon the time of the 

commencement of the action: . . . If the date of the 

commencement of the action is: . . . more than 14 years [of the 

date of the marriage] Wife shall receive the total sum of: $70,000.

Ex. Vol., Petitioner’s Ex. 2.

[7] The parties own two homes, the marital residence and a rental property (the 

former marital residence), and several vehicles. They also have significant credit 

card debt, a loan on one of the vehicles, and mortgages on the real estate. 

During the marriage, the residences were refinanced on multiple occasions to 

assist in paying the parties’ debts. 

[8] Throughout the marriage, Tina was in charge of the parties’ finances. The 

parties incurred a significant amount of debt, and Tina admitted the family 

lived beyond their means. Scott periodically received lump sum payments from 

his structured settlement agreement totaling $350,000 in addition to the 
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monthly annuity payments. Nearly all of those funds were spent during the 

marriage. In 2013, Scott received a $150,000 lump sum payment. When the 

parties’ separated, only $80,000 remained in the parties’ bank account. 

[9] Scott filed the petition for dissolution of marriage on January 10, 2014. He also 

filed a petition to enforce the parties’ prenuptial agreement. The dissolution 

hearing was held on October 10, 2014, and the dissolution decree was issued on 

November 6, 2014. The decree provides in pertinent part:

5. The Petitioner shall pay Respondent the sum of One Hundred 

Fifty-One Dollars ($151.00) per week as child support for the 

parties’ two minor children.

6. The aforementioned child support order is based on 

Petitioner’s income from Walmart and the imputation of 

minimum wage to the Respondent. Given the fact that the 

Petitioner is presently not exercising overnights with the children 

he is given no overnight credit.

7. The child support order does not include any sums received by 

the Petitioner from his structured settlement by virtue of the 

Structured Settlement Protection Act and Section 104(a)(2) of the 

Internal Revenue Code which states: “gross income does not 

include . . . the amount of any damage received (whether by suit 

or agreement and whether as lump sums or as periodic payments 

on account of personal injuries or sickness.)”

***

13. The Respondent managed the parties’ monies during their 

marriage.

14. The Respondent testified that all lump sum payments made 

to the Petitioner during the marriage from his annuities in the 

total sum of Three Hundred Fifty Thousand Dollars ($350,000) 

have been spent.

15. The Respondent shall receive all right, title and interest in the 

following vehicles: the Dodge, the Legacy and the Econoline van 
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which were titled in Petitioner’s name and purchased with 

proceeds from his structured settlement. The vehicles are valued 

at Nine Thousand Three Hundred One Dollars ($9301.00), One 

Thousand Nine Hundred Thirty-Four Dollars ($1934.00) and 

One Thousand Two Hundred Twenty-Five Dollars ($1,225.00) 

respectively. The Petitioner shall receive credit for those sums as 

a deduction from the lump sum payment due to Respondent 

pursuant to the terms of the Prenuptial. . . . 

***

18. The Respondent shall receive all right, title and interest to her 

clothing and personal effects and the personal property in the 

marital residence excluding the kitchen appliances and window 

coverings. The furniture, pursuant to the terms of the Prenuptial, 

is deemed to be the property purchased by the Petitioner since 

the Respondent offered no evidence that she purchased the 

furniture from an account in her name alone. As a result, the 

Petitioner shall receive credit for the value of the furniture in the 

sum of Five Thousand Dollars ($5,000.00) as a deduction from 

the lump sum payment owed to Respondent pursuant to the 

terms of the Prenuptial.

***

37. Petitioner introduced testimony and numerous exhibits 

substantiating the depreciation to the residence from the urine 

and feces damage done by Respondent’s pets after Petitioner left 

the residence. The Respondent refuses to remove the pets from 

the residence.

***

42. Respondent shall leave the marital residence in “for sale” 

condition (clean without any additional waste).

43. Petitioner shall sell the marital residence. Any net equity after 

payment of the mortgages, realtor’s fees, closing costs and any 

principal payments paid on the mortgages by the Petitioner 

during the pendency of this matter, shall be split (should any 

exist).

44. Any reasonable repairs or damages resulting from 

Respondent’s waste to the property required to be done for the 
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residence to be sold shall be deducted from Respondent’s portion 

of the proceeds as shall any depreciation to the residence 

referenced in the purchase price of Two Hundred Ninety Nine 

Thousand Dollars ($299,000.00) less the sale price.

45. The parties’ prenuptial provided for a payment to Respondent 

of Seventy Thousand Dollars ($70,000) after 14 years of 

marriage.

46. From this sum all payments for repairs and depreciation 

referenced in paragraph 42 [concerning the marital residence], 

should the residence be sold at a loss, shall be deducted and 

considered Respondent’s dissipation of marital assets.

47. In addition so should the costs of attorney’s fees and 

investigator’s fees of Fifteen Thousand Dollars ($15,000.00) paid 

by Respondent from Petitioner’s Structured Settlement Proceeds 

for the adoption of two children the Respondent lost custody of 

due to her negligence pursuant to a Court Order of the Marion 

County Juvenile Court. Respondent’s loss of custody resulted 

from her lack of care of the children, the condition of the marital 

residence and its effect on the children which the Respondent 

allowed to occur when the children and the house were in her 

sole custody. As a result this was a dissipation of the marital 

assets.

48. In addition, there should be a deduction from the Seventy 

Thousand Dollars ($70,000.00) for the value of the furniture, 

Five Thousand Dollars ($5,000.00) and for the value of the 

automobiles referenced above, Twelve Thousand Four Hundred 

Sixty Dollars ($12,460.00) for a total of Seventeen Thousand 

Four Hundred Sixty Dollars ($17,460.00).

49. The remainder of the Seventy Thousand Dollars 

($70,000.00), should there be any, shall be paid immediately [to] 

Respondent by the Petitioner upon closing of the marital 

residence (substantiation the loss or gain).

Appellant’s Amended App. pp. 9-13. Tina appeals the dissolution decree. 

Additional facts will be provided as needed. 

Standard of Review

[10] The trial court entered findings of fact and conclusions of law pursuant to 

Indiana Trial Rule 52(A), and therefore, we apply a two-tiered standard of 
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review for clear error; that is, first, we determine whether the evidence supports 

the findings, and second, whether the findings support the judgment. Mysliwy v. 

Mysliwy, 953 N.E.2d 1072, 1075-76 (Ind. Ct. App. 2011) (citations omitted), 

trans. denied. We do not reweigh the evidence but consider the evidence 

favorable to the judgment. Id. Findings of fact are clearly erroneous when the 

record contains no facts to support them, and a judgment is clearly erroneous if 

no evidence supports the findings, the findings fail to support the judgment, or 

if the trial court applies an incorrect legal standard. Bowyer v. Ind. Dep't of 

Natural Res., 944 N.E.2d 972, 983-84 (Ind. Ct. App. 2011). Although we review 

findings under the clearly erroneous standard, we review conclusions of law de 

novo. Id. at 983.

Child Support Calculation

[11] Tina argues that the trial court erred when it failed to consider Scott’s annuity 

payments under the structured settlement agreement as income when 

calculating his child support obligation. A trial court's calculation of child 

support is presumptively valid, and as such, we will reverse only where the 

determination is clearly erroneous or contrary to law. Young v. Young, 891 

N.E.2d 1045, 1047 (Ind. 2008).

[12] Indiana Child Support Guideline 1 provides that child support should be 

calculated to reflect the standard of living the children would have enjoyed had 

the marriage not been dissolved. Child Support Guideline 3(A) defines weekly 

gross income broadly and states in pertinent part:
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“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. Weekly Gross Income of each 

parent includes income from any source, except as excluded 

below, and includes, but is not limited to, income from salaries, 

wages, commissions, bonuses, overtime, partnership 

distributions, dividends, severance pay, pensions, interest, trust 

income, annuities, capital gains, social security benefits, 

workmen's compensation benefits, unemployment insurance 

benefits, disability insurance benefits, gifts, inheritance, prizes, 

and alimony or maintenance received from other marriages. 

Social Security disability benefits paid for the benefit of the child 

must be included in the disabled parent’s gross income. The 

disabled parent is entitled to a credit for the amount of Social 

Security disability benefits paid for the benefit of the child.

[13] In its calculation of his weekly gross income, the trial court did not include the 

$6,500 monthly payments Scott receives from his Structured Settlement 

Agreement. See Ex. Vol., Petitioner’s Ex. 1. The trial court declined to include 

these funds in its calculation of Scott’s weekly gross income:

by virtue of the Structured Settlement Protection Act and Section 

104(a)(2) of the Internal Revenue Code which states: “gross 

income does not include . . . the amount of any damage received 

(whether by suit or agreement and whether as lump sums or as 

periodic payments on account of personal injuries or sickness.)”

Appellant’s App. p. 9. 

[14] However, the Indiana Child Support Guidelines provide a broader definition of 

income than the Internal Revenue Code. See Commentary to Ind. Child Supp. 

G. 3(A) (explaining that “in calculating weekly gross income, it is helpful to 

begin with total income from all sources. This figure may not be the same as 
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gross income for tax purposes”); Harris v. Harris, 800 N.E.2d 930, 939 (Ind. Ct. 

App. 2003) (stating “the definition of ‘weekly gross income’ is broadly defined 

to include not only actual income from employment, but also potential income 

and imputed income from ‘in-kind’ benefits”), trans. denied. Scott’s settlement 

funds benefitted the family during the marriage and would have continued to 

benefit the family had it remained intact. 

[15] In Knisely v. Forte, 875 N.E.2d 335, 340 (Ind. Ct. App. 2007), our court held that 

payments for personal injury may be included in the gross weekly income 

calculation. Also, Guideline 3(A) includes income from annuities in the 

definition of weekly gross income. While structured settlement payments are 

not specifically included in the Guidelines’ definition of gross income, both 

annuities and structured settlement payments are certain sums of money paid 

periodically or yearly. See Black’s Law Dictionary 1582 (10th ed. 2014) 

(defining a structured settlement as a party’s agreement to pay periodic sums to 

the opposing party for a specified time or “those which provide for an initial 

cash payment followed by deferred payments in future years, normally on some 

annuity basis”). 

[16] For these reasons, we conclude that the trial court erred when it failed to 

include Scott’s structured settlement payments in its calculation of his weekly 

gross income. We therefore remand this case to the trial court to include the 

structured settlement payments in its calculation of Scott’s gross income or to 

provide justification for deviating from the Guidelines if the court declines to do 

so. See Commentary to Child Supp. G. 3(B) (stating “[w]hen the court deviates 
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from the Guideline amount, the order or decree should also include the reason 

or reasons for the deviation”).

[17] Tina also argues that the trial court erred when it failed to address her request 

for child support retroactive to the date Scott filed the petition for dissolution. It 

is within the trial court’s discretion to retroactively apply a child support award 

back to the date of filing or any date thereafter. See Haley v. Haley, 771 N.E.2d 

743, 752 (Ind. Ct. App. 2002). On remand, we also direct the trial court to enter 

a finding concerning whether its child support order should be retroactive to the

date of filing.

Prenuptial Agreement

[18] Next, Tina argues that the trial court deviated from the parties’ prenuptial 

agreement when it reduced the $70,000 payment payable to Tina under 

paragraph nine of that agreement.1 

Antenuptial agreements are legal contracts which are entered into 

prior to marriage which attempt to settle the interest each spouse 

has in property of the other, both during the marriage and upon 

its termination. This court has long held antenuptial agreements 

to be valid contracts, as long as they are entered into freely and 

without fraud, duress, or misrepresentation, and are not 

unconscionable.

Rider v. Rider, 669 N.E.2d 160, 162 (Ind. 1996). Neither party argues that their 

prenuptial agreement is invalid.

 1 The interpretation of a contract is primarily a question of law for the court and is reviewed de novo. Boetsma 

v. Boetsma, 768 N.E.2d 1016, 1020 (Ind. Ct. App. 2002), trans. denied.
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[19] The prenuptial agreement provided that if the parties were married for more 

than fourteen years before the marriage was dissolved, Tina was entitled to her 

separate property, one half of “all jointly held property, subject to one half (1/2) 

of all indebtedness thereon,” and a $70,000 payment from Scott. Ex. Vol., 

Petitioner’s Ex. 2. The trial court awarded Tina $70,000 as provided in the 

parties’ agreement. See Appellant’s App. p. 13. 

[20] The parties’ only significant joint property was the martial residence and the 

former marital residence, which they maintained as a rental property. As agreed 

to by the parties in paragraph 9 of the prenuptial agreement, the trial court 

ordered the parties to sell both properties and to equally split the proceeds of the 

sales after payment of the mortgages, realtor’s commissions, and closing costs.

[21] Yet, Tina claims that the trial court impermissibly modified the parties’ 

agreement when it ordered that reasonable repairs required to be made to the 

marital residence prior to sale due to Tina’s dissipation of the residence would

be deducted from her “portion of the proceeds as shall any depreciation to the 

residence referenced in the purchase price of Two Hundred Ninety Nine 

Thousand Dollars ($299,000.00) less the sale price.” Appellant’s App. pp. 12-

13. The parties’ prenuptial agreement does not contain any provision 

addressing dissipation of martial assets. Therefore, the trial court did not 
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modify the parties’ prenuptial agreement by holding Tina responsible for the 

damage she caused to the marital residence resulting in its diminished value.2 

[22] Prior to the marriage, the parties also agreed that all property acquired by either 

of the parties:

both prior to and subsequent to the contemplated marriage and 

all benefits, income, interests, rents, profits and gains and 

increases in value . . . which may in time accrue or result in any 

manner, shall remain and be the separate property of that party 

and subject entirely to his or her individual control and 

ownership the same as if he or she were not married.

All household goods, furniture, fixtures, artwork, china, silver 

and the like acquired during the marriage shall be deemed the 

joint property of the parties if valued under One Thousand 

Dollars ($1,000.00). Such property valued over One Thousand 

Dollars ($1,000.00) shall be deemed to be the property of the 

Husband unless Wife has paid for such with a check drawn on an 

account in her sole name, a cashier’s check or money order with 

her remitter or if Wife has other written evidence indicating the 

item was a gift, an inheritance or belonging to her. Each party 

herby waives, discharges and releases all right, title and interest 

in and to the property and Proceeds of the other party presently 

owned or hereafter acquired.

Ex. Vol., Petitioner’s Ex. 2. 

 2 Tina also argues that the trial court abused its discretion when it ordered that from the proceeds of the sale 

of the parties’ real estate, Scott will be credited with the mortgage payments he makes while the properties are 

for sale before any remaining equity is split equally between the parties. See Appellant’s Br. at 14; Appellant’s 

App. p. 11. The prenuptial agreement simply provides that Tina is entitled to one half of “all jointly held 

property, subject to one half (1/2) of all indebtedness thereon[.]” See Ex. Vol., Petitioner’s Ex. 2. Given his 

minimal Walmart income, Scott must presumably pay those mortgage payments from the proceeds of 

structured settlement, which under the prenuptial agreement, is solely his asset. Therefore, Tina has not 

persuaded us that the trial court abused its discretion by giving Scott credit for the mortgage payments made 

before the properties are sold. 
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[23] During the marriage, the parties used Scott’s annuity payments to purchase 

vehicles and furniture. Accordingly, under the terms of the parties’ agreement, 

any property valued over $1,000 is Scott’s property. The furniture and vehicles 

at issue were all valued over $1,000.3 See Ex. Vol., Petitioner’s Ex. 6. 

[24] On the date of the dissolution hearing, the vehicles and furniture were in Tina’s 

possession. The parties’ emancipated son was the primary driver of one of those 

vehicles. The furniture was in the marital residence, and its value had decreased 

to $5,000 because Tina allowed her animals to damage it. In her proposed 

division of the marital assets, Tina requested the furniture and two of the three 

vehicles. Ex. Vol., Respondent’s Ex. Q.

[25] Because the trial court awarded Tina non-marital property, equity demanded 

that the court offset the value of that property against the amount owed to Tina 

under the prenuptial agreement. Accordingly, the trial court did not abuse its 

discretion when it awarded Tina the non-marital property she requested but 

also deducted the value of that property from the $70,000 settlement she was 

owed pursuant to the parties’ agreement. 

 3 Tina argues that the vehicles were titled in both her and Scott’s names, and therefore, the vehicles, like the 

marital residence, are marital assets and not subject to the terms of the prenuptial agreement. However, the 

only evidence that the vehicles were titled jointly is the fact that they were listed as marital assets on Scott’s 

financial declaration. See Ex. Vol., Respondent’s Ex. B. The titles of the vehicles were not admitted into 

evidence. Therefore, we cannot conclude that the trial court abused its discretion when it determined that the 

vehicles were not marital assets.
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Tina’s Attorney Fees for the CHINS Proceedings

[26] The trial court also found that Tina dissipated marital assets by taking $15,000 

from Scott’s 2013 Structured Settlement Payment to pay attorney fees incurred 

by Tina to defend the CHINS action that arose from Tina’s neglect of her 

residence, which endangered the health of the children in her care. Tina appeals 

the trial court’s decision to deduct that $15,000 from the sum owed to her under 

the prenuptial agreement. 

[27] To support her argument, Tina relies on the following provision in the 

prenuptial agreement: “each party agrees that he or she shall not demand, 

claim, take or receive from the other, any attorney’s fees or other litigation 

expenses . . . to which he or she might otherwise be entitled by reason of any 

rights arising out of or relating to the marriage and/or the relationship of the 

parties.” Appellant’s Br. at 14-15 (quoting Ex. Vol., Petitioner’s Ex. 2).

[28] This provision is inapplicable to the issue before us. Neither party is demanding

attorney fees from the other. Tina unilaterally took money from Scott’s 

structured settlement payment to pay a debt that she incurred. Tina admitted 

that, during the dissolution proceedings, she neglected her residence, and as a 

result, CPS filed a CHINS action. Tr. p. 93. The trial court’s decision to deduct 

the $15,000 from the $70,000 payment to which Tina is entitled under the terms 

of the prenuptial agreement is simply the trial court’s attempt to make Scott 

whole from Tina’s dissipation of marital assets. 
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Credit Card Debt

[29] Finally, Tina argues that the trial erred when it ordered her to pay 

approximately $5,000 owed total on the J.C. Penney and the Chase Slate credit 

card accounts. The division of marital property, which includes the parties’ 

assets and liabilities, is a two-step process. First, the trial court must determine 

the property to be included in the marital estate. Leever v. Leever, 919 N.E.2d 118 

124 (Ind. Ct. App. 2009). Indiana Code section 31-15-7-4(a) provides that “the 

court shall divide the property of the parties, whether: (1) owned by either 

spouse before the marriage; (2) acquired by either spouse in his or her own 

right: (A) after the marriage; and (B) before final separation of the parties; or (3) 

acquired by their joint efforts.” “After determining what constitutes marital 

property, the trial court must then divide the marital property under the 

presumption that an equal split is just and reasonable.” Leever, 919 N.E.2d at 

124 (citing Ind. Code § 31-15-7-5). Finally, the division of marital assets and 

liabilities lies within the sound discretion of the trial court, and we will reverse 

only for an abuse of that discretion. Keown v. Keown, 883 N.E.2d 865, 868 (Ind. 

Ct. App. 2008).

[30] The trial court found that “the parties have substantial credit card debt which 

was primarily incurred by the Respondent who was in charge of the parties’ 

finances.” Appellant’s App. p. 13. Scott’s testimony supports this finding, and 

Tina’s argument that she incurred most of the charges buying items for the 

children is simply a request to reweigh the evidence and the credibility of the 

witnesses, which our court will not do. See Keown, 883 N.E.2d at 868.
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[31] Moreover, the trial court ordered Scott to bear responsibility for the parties’ 

joint Fifth Third debt in the amount of $5433.54. Ex. Vol., Petitioner’s Ex. 10, 

Appellant’s App. p. 13. Also, it is reasonably likely that the marital residence 

will be sold at a loss for which Scott will be financially responsible.

[32] For all of these reasons, the trial court did not abuse its discretion when it 

ordered Tina to bear responsibility for the debt incurred on the Chase and J.C. 

Penney credit cards. 

Conclusion

[33] The trial court did not err when it interpreted the parties’ prenuptial agreement. 

The trial court also did not err when it subtracted certain sums from Tina’s 

$70,000 payment under the terms of the agreement after the court awarded her 

non-marital assets at her request and due to her dissipation of Scott’s structured 

settlement payments. However, the trial court erred when it failed to consider 

Scott’s structured settlement payments in its calculation of Scott’s gross income 

for the purposes of child support. We therefore remand this case to the trial 

court for proceedings consistent with this opinion.

[34] Affirmed in part, reversed in part, and remanded for proceedings consistent 

with this opinion.

May, J., concurs. 

Robb, J., concurs in result in part with opinion.
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IN THE

COURT OF APPEALS OF INDIANA

Tina Carmer,

Appellant-Respondent,

v.

Scott Carmer,

Appellee-Petitioner

Court of Appeals Case No.

49A05-1411-DR-539

Robb, Judge, concurring in result in part.

[1] I write separately to address only the first issue: whether the trial court abused 

its discretion when it failed to include Scott’s monthly structured settlement 

payments as income in the calculation of child support. The majority holds the 

trial court abused its discretion when it failed to include Scott’s monthly 

structured settlement payments in calculating his weekly gross income, citing

the definition of “weekly gross income” in Indiana Child Support Guideline 

3(A) and the decision in Knisely v. Forte, 875 N.E.2d 335 (Ind. Ct. App. 2007),

that a personal injury settlement may be included in the weekly gross income 

figure. See slip op. at ¶ 15. 

[2] I agree with the majority that Guideline 3(A) defines weekly gross income as 

“income from any source,” and that it is a broader definition than the Internal 

Revenue Code definition of gross income, on which the trial court relied in 
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excluding Scott’s structured settlement payments from his weekly gross income. 

However, I do not believe Knisely is particularly helpful in determining whether 

Scott’s structured settlement payments are includable in his weekly gross 

income. Knisely was concerned with how to treat a one-time payment in 

settlement for an injury which left the father permanently disabled and unable 

to work. Here, despite the serious injuries Scott sustained several years before 

the marriage, he holds a steady job earning a weekly income of approximately 

$450 per week in addition to his monthly structured settlement payments. 

Although Knisely held the trial court did not abuse its discretion in considering 

the one-time payment when calculating the father’s child support obligation, it 

appears the father may have had no other means of supporting his children. 

Further, the opinion does not parse how the trial court calculated the father’s 

weekly income based upon the settlement amount. So although Knisely stands 

for the general proposition that it is not an abuse of discretion to consider some 

part of a lump-sum settlement in determining a party’s child support obligation, 

it does not specifically help us determine whether the trial court in this case 

erred in how it handled Scott’s structured settlement payments. 

[3] We are concerned with determining Scott’s weekly gross income. “Income” is 

defined as “[t]hat which comes in as the periodical produce of one’s work, 

business, lands, or investments . . . .” Oxford English Dictionary, OED Online, 

http://www.oed.com/view/Entry/93645?rskey=tQFSVL&result=1#eid.

Personal injury settlements may include an income-replacement component, 

but there is no indication that the entire settlement in this case was for that 
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purpose. In fact, Scott is able to and does work a regular job, at least currently. 

But personal injury settlements are also intended to reimburse past and future 

medical expenses, disability, pain and suffering, caretaking, and other 

extraordinary expenses arising from an injury. Scott testified that he suffered a 

severe head injury which impacts his memory and leaves him at greater risk for 

developing Alzheimer’s, Parkinson’s, or dementia in the future, tr. at 45, and

injuries to his leg and arm which restrict his physical activities, id. at 6-7. In 

addition, he is currently undergoing occupational therapy several times a week

for which he pays directly. Id. at 62-63. To date, none of his structured 

settlement proceeds have been set aside for his future medical care or 

retirement. Id. at 40. Other courts which have addressed similar situations have 

taken the position that only those portions of a personal injury settlement that 

are meant to compensate for lost wages or future wage loss are “income” for 

child support purposes even under an expansive definition of “income.” See, 

e.g., Villanueva v. O’Gara, 668 N.E.2d 589, 592-96 (Ill. Ct. App. 1996) 

(interpreting Illinois’s statutory definition of net income for child support 

purposes, Ill. Comp. Stat. 5/504 (net income is “the total of all income from all 

sources”), and holding it was error for the trial court to include the entire 

personal injury settlement amount in the child support calculation; also citing 

cases from several other jurisdictions deciding this issue). 

[4] Scott earns a weekly wage from employment, and I therefore do not necessarily 

think the trial court would have abused its discretion in excluding the structured 

settlement payments from a calculation of Scott’s weekly gross income had it 
Court of Appeals of Indiana | Opinion 49A05-1411-DR-539 | October 30, 2015 Page 20 of 20

not based that exclusion solely on the Internal Revenue Code definition of gross 

income. As the majority notes, the Internal Revenue Code is not the standard 

for determining weekly gross income for child support purposes, see slip op. at ¶ 

13 (quoting Child Supp. G. 3(A), cmt. 2(b) that the weekly gross income figure

may not be the same as gross income for tax purposes). It may be unfair to 

exclude all of the settlement proceeds where they have inured to the family’s 

benefit in the past but it may also be unfair to include all of the proceeds where 

Scott has need of them for his own care. Commentary to Guideline 3(A) urges 

judges to “be innovative in finding ways to include income that would have 

benefited the family had it remained intact, but be receptive to deviations where 

reasons justify them.” Child Supp. G. 3(A), cmt. 2(b); see also Harris, 800 

N.E.2d at 940-41 (holding the trial court did not abuse its discretion in 

including only the net amount of settlement proceeds from a wrongful 

termination lawsuit because that is the amount that “would have ultimately 

benefited the children if the family had remained intact.”). 

[5] Because the trial court’s decision was based on an improper legal standard, and 

subject to the caveat that the trial court should have the leeway on remand to 

make an “innovative” determination regarding the inclusion or exclusion in 

whole or in part of Scott’s structured settlement payments, I concur in result as 

to the child support issue. As to the remainder of the opinion, I concur in full.