ATTORNEYS FOR APPELLANT:
THOMAS M. FROHMAN
JAMIE L. ANDRES
Indiana Legal Services
COURT OF APPEALS OF INDIANA
WALTER McGILL, )
vs. ) No. 47A04-0307-CV-342
JAYNE FRANKLIN McGILL )
APPEAL FROM THE LAWRENCE SUPERIOR COURT 1
The Honorable Michael A. Robbins, Judge
Cause No. 47D01-9005-DR-357
January 22, 2004
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Walter McGill (Walter) appeals the trial courts ruling on his Motion to Correct
Error, modifying its previous Order of child support.
We reverse and remand with instructions.
Walter raises one issue on appeal, which we restate as follows: whether
the trial court abused its discretion by ordering Walter to pay child support
at a level which denied him the means of self-support at a minimum
FACTS AND PROCEDURAL HISTORY
Walter and Jayne McGill (Jayne) were divorced on November 13, 1990. They
had one child, K.G., who was born on August 28, 1988. The
Lawrence County Superior Court adopted the parties agreement which awarded custody of K.G.
to Jayne and ordered Walter to pay $25 per week in child support.
At that time, Walters only income consisted of Supplemental Security Income (SSI).
He paid his child support fairly regularly through 1997. In 2002,
the Social Security Administration (SSA) determined Walter to be eligible for Social Security
disability benefits (disability benefits). Walters current benefits amount to a total of
$572 per month, which consists of $276 per month in SSI and $296
per month in disability benefits.
On December 6, 2002, Jayne filed a Petition for Citation and Modification.
Subsequently, on March 31, 2003, Walter filed his Petition to Lower Support Obligation.
On April 28, 2003, the trial court held a hearing on all pending
motions. The following day, April 29th, the trial court issued its Order,
requiring Walter to pay child support in the amount of $20 per week,
plus a weekly $5 towards the arrearage of $9,110. On May 7,
2003, Walter filed his Motion to Correct Error. Pursuant to Walters Motion,
the trial court, on May 30, 2003, issued its Order on the Motion
to Correct Error, which lowered Walters child support obligation to $15.57 per week,
plus $5 per week towards the arrearage.
Walter now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
Our standard of reviewing child support awards is well settled. We begin
with the understanding that support calculations are made utilizing the income shares model
set forth in the Indiana Child Support Guidelines (the Guidelines). See Nienaber
v. Marriage of Nienaber, 787 N.E.2d 450, 456 (Ind. Ct. App. 2003).
The Guidelines apportion the cost of supporting children between the parents according to
their means. See id. This approach is based on the premise
that children should receive the same portion of parental income after a dissolution
that they would have received if the family had remained intact. See
Fields v. Fields, 749 N.E.2d 100, 104 (Ind. Ct. App. 2001), trans. denied.
A calculation of child support under the Guidelines is presumed to be
valid. Id. Therefore, we will not reverse a support order unless
the determination is clearly against the logic and effect of the facts and
circumstances. Id. When reviewing a child support order, we do not
revisit weight and credibility issues but confine our review to the evidence while
reasonable inferences favorable to the judgment are considered. Id.
Nevertheless, we note at the outset that Jayne has filed no appellees brief
in this case. Where the appellee fails to file a brief on
appeal, we may in our discretion reverse the trial courts decision if the
appellant makes a prima facie showing of reversible error. See Ward v.
Ward, 763 N.E.2d 480, 481 (Ind. Ct. App. 2002). This rule was
established for our protection so that we can be relieved of the burden
of controverting the arguments advanced in favor of reversal where that burden properly
rests with the appellee. Id.
II. Child Support Order
Walter contends that the trial court abused its discretion by ordering him to
pay child support at a level that deprives him of the means of
self-support at a minimum subsistence level. Specifically, although Walter agrees that he
should pay child support, he maintains that the trial courts blind adherence to
the Guidelines rather than a fair examination of the facts and circumstances of
the case would result in losing his housing and going hungry.
It is well established that, even though the calculation of child support by
application of the Guidelines yields a figure that becomes a rebuttable presumption, there
is room for flexibility. Guidelines are not immutable, black letter law.
See Child Supp. G. 1, commentary. An indiscriminate and totally inflexible application
of the Guidelines can easily lead to harsh and unreasonable results. See
id. Instead, an infinite number of situations may prompt a trial judge
to deviate from the appropriate Guideline amount. See id. Furthermore, the
Guidelines do not establish a minimum support obligation. Rather, the facts of
each individual case must be examined and support set in such a manner
that the obligor is not denied a means of self-support at a subsistence
level. See Child Supp. G. 2, commentary (emphasis added).
Walter did not proffer and our research did not disclose any case law
dealing with the specific situation of calculating child support where the sole income
of a non-custodial obligor consists of a combination of SSI and disability benefits.
Therefore, we shall resolve this issue by determining the nature and purpose
of each source of income. SSI is a federal social welfare program
designed to assure that the recipients income is maintained at a level viewed
by Congress as the minimum necessary for the subsistence of that individual.
Cox v. Cox, 654 N.E.2d 275, 277 (Ind. Ct. App. 1995). In
order to obtain SSI, Walter had to prove that he was unable to
do any substantial gainful activity by reason of any medically determinable physical or
mental impairment. 20 C.F.R. §416.905(a). Means-tested public assistance programs such as
SSI are specifically excluded from a parents income for the purpose of computing
child support under Child Supp. G. 3(A)(1). See Child Supp. G. 3(A)(1).
As a matter of law, SSI recipients lack the money or means
to satisfy child support obligations. See Cox, 654 N.E.2d at 277.
Disability benefits, on the other hand, are not means-tested income; rather, disability benefits
are awarded until the recipient recovers sufficiently from a disability, regardless of the
recipients income level. See Forbes v. Forbes, 610 N.E.2d 885, 888 (Ind.
Ct. App. 1993). To receive disability benefits, the recipient must show that
inability to work is medical in nature. See id. Unlike SSI,
disability benefits are included in the definition of weekly gross income for the
purposes of determining a child support order under Child Supp. G. 3(A)(1) and
Indiana courts have consistently held that disability benefits are the proper subject of
child support orders. See, e.g., Esteb v. Enright by State, 563 N.E.2d
139, 142 n.2 (Ind. Ct. App. 1990).
With these principles in mind, we now turn to the case at hand.
The undisputed evidence shows that Walters total income amounts to $572 per
month, consisting of $276 in SSI and $296 in disability benefits monthly.
As we have established, only the disability benefits may be taken into account
for the purpose of child support calculations. Moreover, the record reflects that
Walter has no control over his income. Walters half-brother, Lonnie South (South),
testified that he has been Walters representative payee
for about eight years.
As representative payee, South is responsible for Walters needs and well-being.
Our review of the record shows that when Walter became eligible for disability
benefits in 2002, he received a back award for approximately $5,000. At
the time, Walter was living at the Hauck House. However, South testified
that Hauck House was in the process of asking Walter to leave because
too many older people were living there. Therefore, South used $500 of the
back award as a down payment on a trailer with a total purchase
price of $10,500. The record shows that the rest of the award
was used to furnish the trailer. The monthly payments on the trailer
amount to $185 towards the purchase price and $145 for lot rent.
In addition to the trailer payment and lot rent, South testified to the
following monthly expenses: a light bill of approximately $50, a gas bill
of approximately $67, a phone bill of $8, insurance on the trailer for
$25, and a monthly child support payment of $20. Thus, Walters monthly
expenses amount to $500. South stated that Walter uses the remaining $72
per month for food, toiletries, and other basic needs.
During the trial, Walter testified that he probably smokes three packs of cigarettes
a week at about $1.80 a pack. He added that his weekly
food bill amounts to approximately $40. Walter does not drink and does
not own a vehicle. The record further reveals that, for enjoyment, Walter
used to frequent Wal-Mart and drink all the coffee he could for $.50.
He also used to go to the movies. However, South elaborated
that Walter no longer goes out because he does not have the money.
Our review of the record leaves us with the firm conviction that a
mistake has been made. An examination of Walters monthly expenses establishes that
he has very little flexibility. All of his expenses are absolutely essential,
and even discounting the monthly $20 towards child support, Walter barely breaks even.
Of course, we recognize that every parent has a moral obligation to
support his children.
See Rose v. Rose, 481 U.S. 619, 632, 636,
107 S.Ct. 2029, 95 L.Ed.2d 599 (1987). However, Walter is a disabled,
non-custodial, and indisputably indigent parent, living on public assistance benefits directed at providing
him with the minimum support necessary to live. By requiring these benefits,
specifically designed to guarantee a minimum of subsistence for Walter, to be diverted
for child support purposes would be tantamount to undercutting the minimum support guarantee
that these programs intended.
A computation in accordance with the child support guidelines, as applied by the
trial court, produces a suggested weekly support payment of $15, which amounts to
$60 per month. This would leave Walter approximately $12 per month for
food and other basic necessities. However, our supreme court has previously warned
that trial courts must avoid the pitfall of blind adherence to the computation
for support without giving careful consideration to the variables that require a flexible
application of the guidelines in order to do justice. See Kinsey v.
Kinsey, 640 N.E.2d 42, 43 (Ind. 1994), Child Supp. G 1, commentary.
Here, the trial courts judgment is clearly against the logic and effect of
the facts and circumstances. See Fields, 749 N.E.2d at 104. The
order to pay a weekly $15.57 in support obligation, plus $5 towards the
arrearage was issued without the appropriate concern for Walters ability to pay, given
that he receives minimal income sufficient only to meet his basic needs.
Accordingly, instead of a rigid adherence to the Guidelines, the trial courts child
support calculation should have been two-fold: initially, the calculation should be based
solely on Walters disability benefits, with a further investigation that the resulting obligation
does not deprive Walter of self-support at a subsistence level. See Child
Supp. G. 2, commentary. Clearly, the trial courts Order failed to examine
Walters ability to pay the ordered support. Therefore, we conclude that Walter
made a prima facie showing of reversible error on the part of the
trial court. See Ward, 763 N.E.2d 481. Thus, we find that
the trial court abused its discretion. See Fields, 749 N.E.2d at 104.
Consequently, we reverse the trial courts Order and remand with instruction to
set Walters child support obligation at a level that will not deprive him
of self-support at a subsistence level.
Based on the foregoing, we find that the trial court abused its discretion
by ordering Walter to pay child support at a level which denied him
the means of self-support at a minimum subsistence level.
Reversed and remanded with instructions.
DARDEN, J., and BAILEY, J., concur.
Walters Motion for Oral Argument is hereby denied.
Footnote: A representative payee is appointed by the SSA to receive and
use a recipients SSI or disability benefits for the recipients needs. Such
an appointment is generally made when the disabled recipient cannot handle his own
funds due to his mental capacity.