MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                 FILED
regarded as precedent or cited before any                                Aug 21 2018, 10:05 am

court except for the purpose of establishing                                     CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
William M. Horne                                         Cody P. Cogswell
Horne Law, LLC                                           Cogswell & Associates, LLC
Indianapolis, Indiana                                    Fishers, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Valencia A. Jackson,                                     August 21, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-DR-282
        v.                                               Appeal from the Marion Superior
Kenneth S. Jackson,                                      Court

Appellee-Petitioner.                                     The Honorable James A. Joven,
                                                         Judge
                                                         Trial Court Cause No.
                                                         49D13-1108-DR-29314



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018                     Page 1 of 18
[1]   Valencia A. Jackson1 (“Mother”) appeals the Marion Superior Court’s order

      granting a petition filed by Mother’s ex-husband, Kenneth S. Jackson

      (“Father”), regarding the modification of Father’s child support obligation.


[2]   Mother appeals and presents six issues for our review, which we consolidate

      and restate as the following four:


              I.     Whether the trial court erred when it imputed income to
                     Mother;

             II.     Whether Father qualified for a modification of his child
                     support order;

            III.     Whether Father’s bonus income should have been included in
                     the trial court’s recalculation of Father’s arrearage; and

            IV.      Whether the trial court erred in its determinations on
                     attorney’s fees.


[3]   We affirm in part, reverse in part, and remand with instructions.


                                   Facts and Procedural History
[4]   Mother and Father were married in 2003 and had two daughters together—

      K.J., born in 2005, and V.J., born in 2007 (collectively “the Children”). The

      parties divorced in 2011, and Mother became the primary physical custodian of

      the Children. On November 13, 2013, the trial court approved an agreed entry

      setting Father’s child support obligation at $305 per week.2



      1
          Valencia A. Jackson now goes by Valencia A. Maragh.
      2
       Father was paying $330 per week, however, $25 of that was toward arrears. It appears from the November
      15, 2013 order that Father had previously been paying $110 per week. See Appellant’s App. p. 49.




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018              Page 2 of 18
[5]   In February 2014, Father filed a petition to modify his child support obligation

      based on a nine-week loss of employment from February 2014 to April 2014. In

      a February 2015 order, the court denied Father’s request to modify his child

      support obligation because Father regained employment in April 2014, and

      thereafter, his income did not satisfy the necessary 20% change in support

      required for modification. Appellant’s App. p. 54. But the court did award

      Father a credit on his arrearage owed to Mother for the nine weeks during

      which he was unemployed. Id.


[6]   In April 2014, Father, an electrician, began working for Mister Sparky3 in

      Indianapolis, Indiana. As an operations manager, Father’s salary in 2017 was

      approximately $72,488. In addition to his salary, Father receives a yearly bonus

      that is based on his performance and the business’s profitability from the

      previous year. In April 2017, Father received his 2016 bonus of $17,517.35 in

      cash plus $5,839.12 in shares.4 Beginning August 11, 2017, Father also began to

      receive additional income of $750 per month because he holds a Master

      Electrician License, which is necessary for Mister Sparky to operate. See Tr. p.

      43; Ex. Vol., Pet’r Ex. C. Previously, this stipend was paid annually, but the

      record is unclear as to the amount and consistency of these payments.




      3
       Mister Sparky is a part of Clockwork Home Services and is a member of the Direct Energy group of
      companies.
      4
        Father will be able to access the share component of the award in two equal payments which will be
      released two and three years after the award date respectively. Ex. Vol., Pet’r Ex. B. The shares are also
      contingent on Father’s continuous employment. Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018                     Page 3 of 18
[7]    Mother worked the front desk at a doctor’s office in Indianapolis, Indiana,

       where she made $14 an hour. After downsizing, Mother was laid off, and she

       applied for thirty or forty jobs but received no offers of employment. She then

       started her own home-cleaning business in February 2017.5 At some point in

       2017, Mother also began working as a home health attendant where she earns

       $16 per hour, but the hours vary each week.


[8]    On March 15, 2017, Father filed a petition to modify child support and

       parenting time. On August 31, 2017, Father amended this petition to seek

       modifying child support only. Father asked that parenting time issues be

       reserved for a later date, and the trial court granted Father’s amended petition.

       Mother filed her answer to Father’s amended petition on September 20, 2017,

       in which she denied Father was entitled to modification, and she requested

       attorney fees.


[9]    The trial court held a hearing on Father’s petition on October 24, 2017. During

       this hearing, the court chastised counsel for failing to accurately file financial

       declarations and child support worksheets in advance. The court remarked,

       “neither party showed up prepared today[,]” and set the next hearing for

       November 28, 2017. Tr. p. 30.


[10]   On November 13, 2017, Mother filed a motion in limine seeking to bar Father

       from introducing testimony about his 2014 income at the November 28 hearing



       5
        Although Mother indicated that she did not officially start her cleaning business until February 2017, see Tr.
       p. 78, she registered the business with the Secretary of State in July 2016. Ex. Vol., Pet’r Ex. F.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018                     Page 4 of 18
       unless he produced his 2014 tax returns to Mother. Father responded to

       Mother’s motion in limine on November 27, in which his counsel asserted that

       Father’s 2014 tax returns “ha[ve] no bearing on his current or future child

       support order as he made substantially less in 2014” because he was

       unemployed for several weeks. Appellant’s App. p. 179. Counsel also noted

       that Father “is not requesting for the Court to use the lesser amount.” Id. As a

       result, Father characterized Mother’s motion as “a bad faith pleading[,]” and he

       requested attorney fees accrued in responding to the motion. Id. at 181–82.


[11]   At the November 28 hearing, both Mother and Father testified and were

       represented by counsel. On January 10, 2018, the trial court issued its

       modification order in which it granted Father’s request that his child support

       obligation be reduced to $237 per week.6 Id. at 43. The order also, in relevant

       part, concluded that: (1) Mother earns, or is capable of earning, a weekly gross

       income of $586; (2) there are no work-related child care expenses; (3) Father

       has shown a substantial change in circumstances necessary to make the current

       order unreasonable, as more than one year has passed since the last

       modification order, and the amount ordered differs by more than 20%; (4) if

       Father receives a bonus in the future, he is to pay Mother 14%7 of the gross



       6
         Notably, the trial court’s order states, “[t]he Court’s Child Support Worksheet Obligation is attached and
       incorporated into this order.” Appellant’s App. p. 42. However, there is no worksheet attached to the order
       provided to us.
       7
        The 14% resulted from the trial court dividing the amount it calculated as Father’s basic child support
       obligation, $300.58, by the calculated combined income, $2,153. But again, the order provided to us does not
       contain an attached Child Support Worksheet, and there is no other mention in the record of the amounts
       $300.58 and $2,153.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018                    Page 5 of 18
       amount; (5) Father’s total arrears due is $1,412; and (6) because of his flexible

       work schedule, Father can exercise additional parenting time particularly when

       Mother is working.8 Id. at 42–44. The trial court also ordered Mother to pay

       $780 in attorney fees accrued by Father’s counsel responding to Mother’s

       motion in limine.9


[12]   Mother now appeals.


                                             Standard of Review
[13]   Mother contends that the trial court erred in several respects in granting

       Father’s petition to modify child support. In conducting our review, we give

       considerable deference to the findings of the trial court in family law matters.

       Stone v. Stone, 991 N.E.2d 992, 999 (Ind. Ct. App. 2013), aff’d on reh’g, 4 N.E.3d
666 (citing MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005)). “Thus,

       to the extent credibility or inferences are to be drawn, we give the trial court’s

       conclusions substantial weight. But to the extent a ruling is based on an error of

       law or is not supported by the evidence, it is reversible[.]” MacLafferty, 829
N.E.2d at 941. And therefore, we will set aside a child support modification

       order if it is clearly erroneous. Bogner v. Bogner, 29 N.E.3d 733, 738 (Ind. 2015).




       8
        The order also incorrectly stated, “Father is ordered to pay the first $1289 of annual uninsured medical
       expenses[.]” Appellant’s App. p. 44. Father filed a motion to correct clerical error, which the trial court
       granted on January 30 in which it explained that Mother, as the custodial parent, is responsible for the first
       $1,289 of annual uninsured medical expenses. Id. at 46.
       9
        The attorney fees were ordered to be paid “directly to Father within 90 days of this order.” Appellant’s
       App. p. 44.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018                      Page 6 of 18
[14]   Where, as here, the trial court has issued findings of fact and conclusions

       thereon, we apply a two-tiered standard of review, determining first whether the

       evidence supports the findings and second whether the findings support the

       judgment. Sexton v. Sexton, 970 N.E.2d 707, 710 (Ind. Ct. App. 2012), trans.

       denied. We will not set aside a trial court’s findings unless they are clearly

       erroneous, meaning that our review of the record leaves us firmly convinced

       that a mistake has been made. Id. We do not defer to the trial court’s

       conclusions of law and will find clear error if the court has applied an incorrect

       legal standard. Id.


                               Imputation of Income to Mother
[15]   Mother first challenges the trial court’s decision to impute income to her.

       Specifically, Mother asserts that the trial court made its decision without “any

       evidence that she was voluntarily underemployed[,]”and that the only

       admissible evidence in the record demonstrated that Mother’s weekly income

       was $414, and not $586 as the trial court concluded in its order. Appellant’s Br.

       at 24. While we will only set aside an order modifying child support if it is

       clearly erroneous, Bogner, 29 N.E.3d at 738, we review a trial court’s decision

       regarding a parent’s underemployment and imputation of potential income for

       an abuse of discretion. Miller v. Miller, 72 N.E.3d 952, 955 (Ind. Ct. App. 2017).


[16]   The Indiana Child Support Guidelines (“the 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



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018   Page 7 of 18
               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). “Potential income may be determined if

       a parent has no income, or only means-tested income, and is capable of earning

       income or capable of earning more.” Id. cmt 2c. “But the Guidelines do not

       require or encourage parents to make career decisions based strictly upon the

       size of potential paychecks, nor do the Guidelines require that parents work to

       their full economic potential.” Sandlin v. Sandlin, 972 N.E.2d 371, 375 (Ind. Ct.

       App. 2012).


[17]   We initially note that the trial court did not make a finding on whether or not it

       found Mother voluntarily underemployed, nor did it specifically state it was

       imputing potential income on Mother. Rather, the trial court’s order merely

       indicates, “Mother earns, or is capable of earning, a weekly gross income of

       $586.00[.]” Appellant’s App. p. 42. However, the trial court does not explain

       how it reached this figure, nor is there any admissible evidence in the record

       indicating this amount. Rather, the figure appears to stem from a discussion

       between counsel and the trial court at the October 24 hearing.


[18]   At the October 24 hearing, Father’s counsel asserted that over the previous

       three years, Mother “has made [] an average of $30,500[.]” Tr. p. 22. Dividing

       $30,500 by 52 weeks in a year provides a figure of $586.53 in weekly income.

       However, counsel was not sworn in during this discussion, and there was no




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018   Page 8 of 18
       document introduced into evidence establishing the $30,500 figure. We have

       previously explained that statements of counsel are not evidence. Krampen v.

       Krampen, 997 N.E.2d 73, 81 (Ind. Ct. App. 2013), trans. denied. And on appeal

       we will only consider evidence that has been introduced and properly admitted.

       Cochran v. Rodenbarger, 736 N.E.2d 1279, 1283 (Ind. Ct. App. 2000). Therefore,

       we will not consider the unsworn statements between counsel and the trial

       court, nor the presentation of documents that were never properly admitted at

       the October 24 hearing.


[19]   The evidence properly before the trial court does not support a finding that

       mother is voluntarily underemployed, nor does it support a weekly income for

       Mother of $586. Mother testified during the November 28 hearing that she was

       laid off from her previous job because “[t]hey were downsizing.”10 Tr. p. 69.

       She then applied for thirty to forty positions but did not receive any offers of

       employment. As a result, Mother decided to start her own home-cleaning

       business because: (1) she wanted to have more availability for her Children; (2)

       she wanted to save money on child care; and (3) she believed that she could

       eventually make more money than she had been earning at her previous job.

[20]   Mother also began part-time work as a home healthcare aide in 2017, although

       the hours varied greatly week to week. And when Father’s counsel asked

       Mother if she was working less hours as a home healthcare aide so that she

       could focus on her cleaning business, Mother responded, “No.” Id. at 76–77.


       10
            The record does not indicate when exactly Mother was laid off.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018   Page 9 of 18
       Mother reported a weekly income of $414 through her testimony, her child

       support obligation worksheet, and her amended financial declaration form. See

       id. at 73; Appellant’s App. pp. 113, 122.


[21]   During the hearing, Father introduced a new child support obligation

       worksheet which attributed a weekly gross income of $640 to Mother. See Tr. p.

       51; Ex. Vol, Pet’r Ex. E. However, there is no evidence demonstrating how

       Father reached this amount. And when counsel attempted to elicit testimony

       from Father relating to Mother’s income, an objection was raised and

       sustained. There was no other testimony or evidence introduced during the

       hearing pertaining to Mother’s income.


[22]   Based on the facts and circumstances before us, we conclude that Mother is not

       voluntarily underemployed, and there is insufficient evidence to support the

       trial court’s decision setting Mother’s weekly income at $586. Accordingly, we

       conclude that the court’s decision to assign potential income to Mother was

       clearly erroneous, and thus, we reverse the court’s finding, and remand with

       instructions to recalculate Mother’s income based upon her present earnings.


          Father’s Qualification for a Modification of Child Support
[23]   Mother next argues that Father’s petition to modify child support should be

       dismissed “because he failed to show that he qualified for a modification[.]”

       Appellant’s Br. at 36. Under Indiana Code section 31-16-8-1, a child support

       order may be modified:




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018   Page 10 of 18
               (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.


       Id. at (b).


[24]   Because we have concluded that the trial court erred when it imputed income to

       Mother, Father is unable to establish that the $305 that he currently pays in

       child support differs by more than 20% from the amount he would be ordered

       to pay applying the child support guidelines.11 Therefore, Subsection 2(A) is

       unavailable to Father, and we turn to Subsection (1).


[25]   Under Subsection (1), it is Father’s burden to establish changed circumstances

       so substantial and continuous to make the terms of the November 13, 2013,

       order unreasonable. MacLafferty, 829 N.E.2d at 940. Our supreme court has

       explained that “the determination of whether or not the change in


       11
         Specifically, a deviation of more than 20% would require a child support order of $244 or less. This
       amount is calculated by multiplying Father’s previous obligation of $305 by 0.2, which equals 61, and then
       subtracting 61 from 305, which equals 244. And the trial court noted that “even if we impute [Mother’s] old
       income level to her, then [Father] won’t get to a 20% difference.” Tr. p. 16.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018                 Page 11 of 18
       circumstances asserted is ‘so substantial and continuing’ as to render the prior

       child support order’s terms ‘unreasonable’ is, at minimum, a mixed question of

       law and fact.” Id. at 941. To the extent the trial court’s ruling is a question of

       law, we will review it de novo. Id.


[26]   Although not identified in the trial court’s order, Father’s alleged change in

       circumstances are that he is now receiving parenting time, and the Children no

       longer require daycare.12 We have previously held that the elimination of child

       care and an increase in parenting time can represent a substantial change in

       circumstances under Section 31-16-8-1(b)(1). See, e.g., In re B.J.R., 984 N.E.2d
687, 698 (Ind. Ct. App. 2013); Miller v. Carpenter, 965 N.E.2d 104, 114–15 (Ind.

       Ct. App. 2012). Mother does not disagree, as she “concedes that both of these

       are substantial and continuing changes[.]” Appellant’s Br. at 39. But she asserts

       that “the evidence before the trial court does not show that these changes, when

       balanced against the parties’ relative financial resources, make the current

       support order unreasonable.” Appellant’s Br. at 39–40. However, Mother does

       not support her assertion with any cited authority which is required by Indiana

       Appellate Rule 46(A)(8)(a). See Foley v. Mannor, 844 N.E.2d 494, 496 n.1 (Ind.

       Ct. App. 2006).


[27]   For these reasons, we conclude that the trial court did not abuse its discretion

       by modifying Father’s child support obligation based on a continuing


       12
         Specifically, Father notes, “I spend at least 98 annual overnights [with] my children. The current child
       support worksheet/order does not reflect my annual overnights.” Appellant’s App. p. 76; see also Tr. p. 41.
       And “[m]y children have not attended before or after school care since 2/4/2017[,]” which Father paid for in
       compliance with the previous child support order. Appellant’s App. p. 76.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018                 Page 12 of 18
       substantial change in circumstances that made the original order

       unreasonable.13


                                         Father’s Bonus Income
[28]   Mother next argues that the trial court erred because it failed “to account for the

       $17,517 bonus that Father received when the court made its new order of child

       support retroactive and credited Father with overpayments of child support

       towards his arrearage.” Appellant’s Br. at 41. Specifically, Mother asserts that

       14% of Father’s bonus income should have been included, and thus, “Father’s

       credits for overpayment needed to be reduced by $2,452.43.” Id. at 42. Father

       agrees that 14% of his bonus income should have been included in the new

       arrearage calculation, but that Mother’s calculation is incorrect. Appellee’s Br.

       at 13.


[29]   We too agree that a portion of Father’s $17,517.35 in bonus income needs to be

       paid to Mother. However, the 14% ratio that the trial court used may change

       when the court recalculates Mother’s current income. Therefore, we remand

       with instructions for the trial court to determine the proper ratio, to apply that

       ratio to Father’s $17,517.35 bonus income, and then require Father to pay that

       amount to Mother as child support.




       13
         Mother also alleges that “the parent’s relative financial positions changed such that a modification in
       Mother’s favor might be appropriate.” Appellant’s Br. at 40. When the trial court recalculates Father’s new
       support obligation using Mother’s current income this may indeed be the case. But this is not the issue
       currently before us.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018                  Page 13 of 18
                                                Attorney’s Fees
[30]   Mother raises two issues with regard to attorney fees. First, she argues that the

       trial court erred when it ordered her to pay Father $780 in attorney fees accrued

       by Father’s counsel in responding to Mother’s motion in limine. Second,

       Mother contends that the trial court erred when it did not award her attorney

       fees that she requested in her answer to Father’s amended petition for

       modification. We address each argument in turn.


       A. Award of Attorney Fees to Father Relating to Mother’s Motion in Limine

[31]   Mother filed a motion in limine after the October 24 hearing asking the Court

       to exclude any testimony regarding Father’s 2014 income unless he produced

       his 2014 tax returns. Father filed a response in which he characterized Mother’s

       motion as a “bad faith pleading[,]” because Mother already had documents

       specifying Father’s 2014 income. Appellant’s App. p. 178. Moreover, Father

       made significantly less in 2014, and he asserted that he “is not requesting for the

       Court to use the lesser amount.” Id. at 179. Father concluded by asking for $780

       in attorney fees spent in responding to Mother’s motion.14 The trial court in its

       order modifying child support stated:


                Father incurred attorney fees of at least $780 for responding to
                Mother’s Motion in Limine filed on November 10, 2017. Father
                alleges the unnecessary expense of responding to Mother’s
                alleged false statements and unfounded request for excluding



       14
        Father’s counsel also submitted an affidavit of attorney’s fees indicating the amount incurred. See
       Appellant’s App. p. 192.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018                  Page 14 of 18
                Father’s evidence and testimony. Mother is ordered to pay $780
                in attorney fees directly to Father within 90 days of this Order.


       Id. at 44.


[32]   Mother contends that the award of attorney fees to Father should be reversed

       because “there is no evidence of bad faith.” Appellant’s Br. at 42. Although the

       trial court here did not state the basis of its award of attorney fees, it appears to

       have awarded fees pursuant to our General Recovery Statute, which provides

       that a trial court may award attorney fees to the prevailing party in any civil

       action if the court finds that either party:


                (1)      brought the action or defense on a claim or defense that is
                         frivolous, unreasonable, or groundless;


                (2)      continued to litigate the action or defense after the party’s
                         claim or defense clearly became frivolous, unreasonable,
                         or groundless; or


                (3)      litigated the action in bad faith.


       Ind. Code § 34-52-1-1(b). On appeal, we review a trial court’s decision to award

       attorney fees and the amount for an abuse of discretion. R.L. Turner Corp. v.

       Town of Brownsburg, 963 N.E.2d 453, 457 (Ind. 2012).15



       15
          Mother correctly points out that when a trial court awards attorney fees, we will “review for clear error any
       findings of fact and de novo any legal conclusions on which the trial court based its decision.” R.L. Turner
       Corp., 963 N.E.2d at 457 (citation omitted). However, the trial court here does not provide any findings of
       fact or legal conclusions on which it based its decision, see Appellant’s App. p. 44, and thus, we review the
       court’s decision for an abuse of discretion.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018                    Page 15 of 18
[33]   We cannot say that the trial court abused its discretion when it awarded

       Father’s counsel attorney fees incurred responding to Mother’s motion in

       limine. When Mother filed her motion, Father had already provided Mother

       with a copy of a 2014 W-2 statement indicating the wages he earned after he

       regained employment in April 2014. Mother contends that the W-2 is

       misleading and that Father’s income for 2014 was substantially higher because

       “Father had been employed by another company until February 25, 2014.”

       Appellant’s Br. at 47. This may be true, however, Father acknowledged he

       made far less in 2014, and he never requested that the trial court use the lesser

       amount when calculating his child support obligation.16 Moreover, Father never

       submitted to the court a financial declaration form or child support worksheet

       utilizing his 2014 income, nor did he ever request for the trial court to utilize

       income averaging. Under these facts and circumstances, the trial court did not

       abuse its discretion when it awarded Father $780 in attorney fees for responding

       to Mother’s motion in limine.


       B. Mother’s Request for Attorney Fees

[34]   In Mother’s response to Father’s amended petition to modify child support, she

       requested attorney fees, in part, because her “income is less than 12% of

       Father’s current rate of compensation.” Appellant’s App. p. 108. Mother’s

       request is based on Indiana Code section 31-16-11-1 which provides the trial

       16
         Mother’s argument here stems primarily from events that took place during the October 24 hearing. See
       Appellant’s Br. at 44–48. But as we previously noted, no witnesses were sworn in during this hearing, and
       the document Mother complains of was never introduced into evidence. Therefore, we will not consider, as
       evidence, counsel’s statements during this hearing nor any exhibits discussed at the hearing, because none
       were admitted. See Krampen, 997 N.E.2d at 81; Cochran, 736 N.E.2d at 1283.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018                 Page 16 of 18
       court with broad discretion to impose attorney fees on either party to a child

       support proceeding. “The 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.” J.S. v. W.K., 62 N.E.3d 1, 9 (Ind. Ct. App.

       2016). But the trial court is under no obligation to cite reasons for its

       determination, nor does it need to explicitly weigh the foregoing factors. Id.


[35]   Mother argues that because of “the great disparity in incomes and the delays in

       producing documents,” the trial court erred when it did not address her request

       for attorney fees. Appellant’s Br. at 50. We have previously explained that

       “[w]hile a disparity of income may be considered in awarding attorney fees, a

       trial court is not required to award fees based on disparity of income alone.”

       Tompa v. Tompa, 867 N.E.2d 158, 166 (Ind. Ct. App. 2007). And although

       Mother asserts that she “believes that much of this litigation directly resulted

       from Father’s delays in producing information about his bonus income, and

       then about his licensing fee[,]” she does not cite to any authority to support her

       position. Appellant’s Br. at 50. We do not find any misconduct on Father’s

       part, and the trial court is in the best position to make the determination in

       deciding to award or not award attorney fees under Section 31-16-11-1. Whited

       v. Whited, 859 N.E.2d 657, 665 (Ind. 2007). For these reasons, the trial court did

       not abuse its discretion when it declined to award Mother attorney fees.


                                                 Conclusion
[36]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded. We remand with instructions for the trial court to re-calculate


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018   Page 17 of 18
Mother’s income based on her current earnings, to calculate a new ratio and

award Mother a percentage of Father’s $17,517.35 bonus income based on this

ratio, and to issue a new modification of child support order.


Riley, J., and May, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-282 | August 21, 2018   Page 18 of 18