Court of Appeals of Indiana | Memorandum Decision 32A01-1702-DR-302 | August 31, 2017 Page 1 of 11

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.

ATTORNEYS FOR APPELLANT

Richard A. Mann

Lisa M. Joachim

Mann Law, P.C.

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Eric Sommers

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Robert Paul Harris, III,

Appellant-Petitioner,

 v.

Melanie Harris,

Appellee-Respondent.

August 31, 2017

Court of Appeals Case No.

32A01-1702-DR-302

Appeal from the Hendricks 

Superior Court

The Honorable Mark A. Smith, 

Judge

Trial Court Cause No.

32D04-0710-DR-118

Barnes, Judge.

Case Summary

[1] Robert Paul Harris, III, (“Father”) appeals the trial court’s denial of his request 

for modification of a child support order. We reverse and remand.
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Issue

[2] Father raises one issue, which we restate as whether the trial court properly 

imputed income to him and denied his request for modification of child 

support.

Facts

[3] Father and Melanie Harris (“Mother”) were married in 2000 and had three 

children. When they divorced in 2009, Father was ordered to pay $362.00 per 

week in child support. At that time, Father was working as an airline pilot.

[4] On October 2, 2016, Father was arrested for operating a vehicle while 

intoxicated, and he was fired from his job. Father learned that, to resume flying

as an airline pilot, he would have to pass a medical evaluation, see a 

psychiatrist, and provide the FAA with his police reports and court records. 

Father found temporary employment at a Wal-Mart warehouse making $361.00 

a week, and he began working on December 9, 2016.

[5] On December 21, 2016, Father filed a petition to modify his child support 

obligation as a result of his lower income. On January 4, 2017, Father pled 

guilty to Class A misdemeanor operating a vehicle while intoxicated, and he 

was sentenced to 361 days of probation. The trial court held an evidentiary 

hearing on the child support modification petition on January 13, 2017. The 

trial court entered findings of fact and conclusions thereon as follows:
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6. The evidence established that [Father] was earning weekly 

gross income of $1,712.00, or approximately $89,000/yr at 

the time of the Decree.

7. [Father] is now earning $361.00 per week as a result of 

losing his job. The evidence established that [Father] was 

employed full time as a pilot with Republic Airways but 

was terminated on October 2, 2016 by his employer as a 

result of an operating while intoxicated charge. [Father]

subsequently pled guilty on January 4, 2017 under case 

number 32D02-1610-CM-1510.

8. [Mother] was earning $460.00 per week at the time of the 

Decree, or approximately $23,920/yr. Currently, [Mother]

works full-time and earns approximately $38,000/yr or 

$73l/week.

9. [Mother] provides health insurance for the minor children 

at a weekly cost of $22.00. This is another substantial 

change since the Decree in that [Father] was previously 

providing health insurance.

10. The evidence established that [Father] does not spend 

more than 76 overnights per year with the minor children.

11. Based upon the foregoing, the Court finds and orders:

a. [Father’s] request to modify his support based upon 

a weekly gross income of $361.00 is denied. 

[Father’s] reduction in income was as a result of a 

personal choice on his part to drink and drive. 

[Father] failed to demonstrate what reductions in 

personal expenses he has undertaken. Specifically, 

the evidence established that he continues to pay a 
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monthly mortgage of $1,300.00 despite a reduction 

in income. Moreover, [Father] testified that it 

remains possible for him to work as a pilot again in 

the future after he completes several requirements 

which he has not fulfilled at this time;

b. While [Father’s] support should not be reduced 

based upon his personal choice to drink and drive, 

there have been other circumstances that have 

changed and that the Court considered for purposes 

of a modification. For example, [Mother’s] income 

has increased; she has been paying the cost of health 

insurance; and, [Father’s] overnight parenting time 

credit has decreased. Considering these changed 

circumstances, the new recommended weekly child 

support obligation is $343.00 per week. (Exhibit A). 

However, this is a change of only $19.00 per week 

and less than the 20% reduction threshold set forth 

in Ind. Code 31-16-8-1(b)(2);

c. Even calculating support based upon an increase in 

[Father’s] annual income to $100,000.00, taking 

into account all the other changes, the 

recommended support obligation only changes to 

$366.00 (Exhibit B), an increase of $4.00 per week 

which is also less than 20%;

d. Based upon the foregoing, the Court finds that the 

current support order is not an unreasonable order. 

[Father’s] request to modify child support is 

denied[.]

Appellant’s App. Vol. II pp. 33-34. Father now appeals.
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Analysis

[6] Father challenges the trial court’s denial of his motion for a modification of 

child support. The trial court entered findings of fact and conclusions thereon 

sua sponte. Sua sponte findings only control issues that they cover, while a 

general judgment standard applies to issues upon which there are no findings. 

In re Paternity of Pickett, 44 N.E.3d 756, 762 (Ind. Ct. App. 2015). We may 

affirm a general judgment with findings on any legal theory supported by the 

evidence. Id. As for any findings that have been made, they will be set aside 

only if they are clearly erroneous. Id. A finding is clearly erroneous if there are 

no facts in the record to support it, either directly or by inference. Id. 

[7] Under Indiana Code Section 31-16-8-1, a child support order may be modified 

only:

(1) upon a showing of changed circumstances so substantial 

and continuing as to make the terms unreasonable; or

(2) upon a showing that:

(A) a party has been ordered to pay an amount in child 

support that differs by more than twenty percent 

(20%) from the amount that would be ordered by 

applying the child support guidelines; and

(B) the order requested to be modified or revoked was 

issued at least twelve (12) months before the petition 

requesting modification was filed.
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[8] The trial court here found no showing of changed circumstances so substantial 

and continuing as to make the terms unreasonable or a showing of a twentypercent difference. Father argues that the trial court erred in calculating his 

weekly gross income because the trial court imputed income to him rather than 

using his actual income. The Indiana Child Support Guidelines provide: 

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. 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.

Ind. Child Support Guideline 3(A)(3). A trial court has wide discretion to 

impute income to ensure the child support obligor does not evade his or her 

support obligation. Pickett, 44 N.E.3d at 766. 

[9] Father argues that the trial court’s imputation of income to him is clearly 

erroneous based on Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007), and In re 

Paternity of E.C., 896 N.E.2d 923 (Ind. Ct. App. 2008). In Lambert, our supreme 

court held that “incarceration does not relieve parents of their child support 

obligations.” Lambert, 861 N.E.2d at 1177. “On the other hand, in determining 

support orders, courts should not impute potential income to an imprisoned 

parent based on pre-incarceration wages or other employment-related income, 

but should rather calculate support based on the actual income and assets 

available to the parent.” Id.; see also Clark v. Clark, 902 N.E.2d 813 (Ind. 2009) 
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(holding that incarceration can be a substantial change in circumstances that 

would warrant a modification of child support). Similarly, in E.C., the trial 

court imputed income to an incarcerated parent, and we reversed for the trial 

court to determine whether the parent had other income or assets available to 

satisfy his child support obligation during his incarceration. E.C., 896 N.E.2d at 

927. However, we find these cases inapplicable because they involve 

incarcerated parents, and Father here is not incarcerated.

[10] Father also relies on Miller v. Sugden, 849 N.E.2d 758 (Ind. Ct. App. 2006), 

trans. denied. There, the father lost his employment as a chemist for Eli Lilly for 

the unauthorized removal of “chemistry material” from the lab. Miller, 849 

N.E.2d at 759. The father filed a petition to modify his child support, and the 

trial court imputed the gross weekly income that the father had earned at Eli 

Lilly. On appeal, we distinguished the case from Carmichael v. Siegel, 754 

N.E.2d 619, 633 (Ind. Ct. App. 2001), where we held:

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 the Child 

Support Guideline 3(A)(3), and the income the parent was 

earning before that misconduct should be imputed to that parent.

Miller, 849 N.E.2d at 761. We noted that “Carmichael involved a parent who 

petitioned for a modification of child support after his license to practice law 

was suspended because he intentionally deceived a bankruptcy court.” Id. We 

concluded that Carmichael was distinguishable because there was “no indication 
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that criminal charges were ever filed against Father with regard to the 

disappearance of chemicals from his lab.” Id. Although the evidence supported

“the trial court’s finding that Father’s termination from Lilly was the result of 

his own misconduct,” we could not conclude that the father’s conduct 

amounted to the level of “intentional deceit present in Carmichael.” Id. 

Although we concluded that the father’s income should not be imputed to his 

prior income from Eli Lilly, we did conclude that he was capable of working as 

a chemist, although at a lesser salary. Consequently, we imputed income to 

him in the amount of $900 per week. 

[11] This case is more like Miller than Carmichael. Father’s misconduct, while 

disturbing and criminal, do not seem to rise to the level of “intentional deceit 

present in Carmichael.” Id. It is undisputed that Father has lost his job as an 

airline pilot and, although he still has the chance of regaining similar 

employment if he complies with the FAA requirements, it is unclear when or if 

an increase in his income will occur. Under these circumstances, we conclude 

that the trial court’s imputation of income to Father is clearly erroneous.

Conclusion

[12] The trial court’s denial of Father’s petition to modify child support is clearly 

erroneous. We reverse and remand for a recalculation of child support.

[13] Reversed and remanded.
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Baker, J., concurs.

Crone, J., concurs in result with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 32A01-1702-DR-302 | August 31, 2017 Page 10 of 11

IN THE

COURT OF APPEALS OF INDIANA

Robert Paul Harris, III,

Appellant-Petitioner,

 v.

Melanie Harris,

Appellee-Respondent

Court of Appeals Case No.

32A01-1702-DR-302

Crone, Judge, concurring in result.

[14] I agree with the majority’s decision to reverse the denial of Father’s petition to 

modify child support, but I would do so on different grounds. I believe that the 

facts of this case are more analogous to those involving incarcerated parents, in 

that Father lost his pilot’s job as a result of an act for which he was criminally 

charged and convicted. There is no evidence that he committed the act to 

evade his support obligation or that he could earn his previous income of 

$89,000 per year until he fulfills the aforementioned FAA requirements.1

 

Although Father is not incarcerated, based on our supreme court’s reasoning in 

Lambert, I believe that the trial court should not impute potential income based 

 

1 There is no evidence that Father has dragged his feet in fulfilling those requirements or that he could have 

fulfilled them by the time of the hearing on his petition.
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on his previous income “but should rather calculate support based on [his] 

actual income and assets[.]” 861 N.E.2d at 1177.