Opinion
Court of Appeals Case No. 20A-DR-1430
03-18-2021
Dustin KREMER, Appellant-Respondent, v. Jacqueline KREMER, Appellee-Petitioner.
Attorney for Appellant: Dawn M. White, Indianapolis, Indiana Attorney for Appellee: Tracy M. Weber, Terre Haute, Indiana
Attorney for Appellant: Dawn M. White, Indianapolis, Indiana
Attorney for Appellee: Tracy M. Weber, Terre Haute, Indiana
MEMORANDUM DECISION
Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Respondent, Dustin Kremer (Father), appeals the trial court's Order establishing the amount of his child support obligation to be paid to Appellee-Petitioner, Jacqueline L. Kremer (Mother), for the benefit of the two minor children.
[2] We affirm, in part, reverse, in part, and remand with instruction.
ISSUES
[3] Father presents this court with two issues on appeal, which we restate as follows:
(1) Whether the trial court erred in calculating Father's income for the purpose of establishing child support; and
(2) Whether the trial court abused its discretion by declining to consider the in-kind benefit Mother received from living rent-free in property owned by Father in determining child support.
FACTS AND PROCEDURAL HISTORY
[4] Mother and Father are the parents of two children: K.K., born during the marriage on October 14, 2008, and M.K., born on June 25, 2012, after the marriage was dissolved (collectively, Children). The decree establishing the dissolution of the marriage was entered on April 16, 2012, but the parties continued to reside together as a family. Pursuant to the dissolution decree, the parties share joint legal custody, with Mother having primary physical custody. By agreement of the parties, no child support order was entered. The relationship terminated in December 2016. Mother, together with the two Children, moved to 122 West Harris Street in Rockville, Indiana on Memorial Day Weekend in 2017. The house was owned by Father who allowed Mother to reside in the residence rent-free. Mother and the Children relocated to Champaign, Illinois on July 31, 2019.
[5] Mother is a Certified Public Accountant. In 2012, Mother started working for Father's businesses and performed bookkeeping and accounting work, as well as analyzing the labor and labor costs. She became familiar with the operational and financial side of three businesses owned and operated by Father: Adplas Enterprises, LLC, Uway Extrusion LLC, and Affordable Auto Care. Mother stopped working for Father in 2017.
[6] During Mother's employment with Father, Father mainly conducted business in China. Father had a business colleague in Asia, Wu Wei or, as the parties refer to him, Will Wood. In the performance of her duties, Mother gained knowledge that Father "managed" his income. (Transcript Vol. II, p. 40). She witnessed Father controlling what he reported as income and expenses so that his bottom line could creatively be whatever he wanted it to be. Father's 2017 federal income tax return showed $68 in business income and $0 in personal income, with gross sales of $1,147,352.96. Father's 2018 federal income tax return reflected a $395,601 business loss, $0 in personal income, and $21,510 in gross receipts or sales.
[7] In the course of Mother's employment with Father, Mother dealt with Oxford Global Creation Limited (Oxford Global), a company Father purchased supplies from and which, in turn, would purchase supplies from a Chinese company. Mother characterized the company as suspicious because she had discovered an email on Father's computer in 2009 which was addressed to Alfred Li (Li). In the email dated March 31, 2008, Father suggested sheltering money by establishing Oxford Global as an overseas entity. The email inquired whether Li would be willing to be the owner of the business with Father retaining all authority and control. Father mentioned that this scheme would allow him to avoid payment of United States taxes. Father advised that he was traveling to Hong Kong on April 9 and 10, 2008, and would be ready to set up the bank account and wire money into the account.
[8] On January 12, 2017, Father informed Mother that he needed to wire "fifty-five K" to Will Wood's Hong Kong bank account, who then, in turn, would wire money to purchase the Rockville House located on Harris Street. (Tr. Vol. II, p. 62). Based on Mother's experience, Father would wire money to Will Wood for personal expenditures but would make it look like payment for supplies from his American business account. The residence on Harris Street, however, was titled in Father's name only and not in the name of any business entity. Father's 2017 federal income tax return did not reflect any distribution to Father nor did it include the purchase of the Harris Street residence. On February 17, 2017, Father purchased a 2017 Mercedes in the amount of $50,000 in cash. Additionally, on September 17, 2017, Father purchased a 2018 Mercedes SUV for his girlfriend in the amount of $30,000 cash.
[9] On July 11, 2018, Father purchased real estate in the amount of $440,000 in cash located in Suwanee, Georgia using Uway Extrusion LLC funds with the intention of personally residing in the residence. He renovated the residence in October 2018 with new hardwood floors. In 2018, Father claimed $21,510 in gross sales for Uway Extrusion LLC, which is $418,490 less than the purchase price of the house. Father does not currently reside in the residence; instead several employees are using the house. Prior to purchasing the Georgia residence, Father tried to entice Mother to relocate to Georgia. He stated that he was going to build a factory in the area and offered Mother $80,000 if she would relocate to Georgia and an additional $500,000 towards the purchase of a home. Pursuant to Uway Extrusion LLC's First Financial Bank records, the company held cash reserves in the amount of $502,178.51 as of December 31, 2018. Father also owns a personal residence located in Whitestown, Indiana, which was purchased on July 26, 2019 for $825,000 cash. On July 16, 2019, Uway Extrusion LLC's First National Bank account statements reflect that an amount of $8,000 was used for the down payment on the residence. On July 17, 2019, $820,000 was wired from Uway Extrusion LLC's bank account to Will Wood in China.
[10] Father's business accounts reflect that Father's businesses pay all of his personal expenses, including, but not limited to, his 2018 and 2019 personal rent payment for his prior residence in Terre Haute, Indiana, as well as his utilities, real estate taxes, health insurance, vehicle insurance, gasoline, maintenance on the residence, food, vacations, cell phones, entertainment and other needs. Additionally, Father's personal bank account statements reflected deposits in the amount of $104,948.54 through October 2019.
[11] On July 30, 2019, the parties had a conversation about child support. Father indicated his willingness to pay child support for the Children but informed Mother, "good luck as he had all of his assets hidden away." (Tr. Vol. II, p. 117). He continued to gloat and told Mother that she should know how smart he is and that "he has already structured everything so the IRS wouldn't be able to find anything on him." (Tr. Vol. II, p. 117).
[12] On February 1, 2019, Father filed a verified petition to establish paternity over M.K. as well as a verified petition to modify custody. That same day, Mother filed a petition to establish child support, as well as a petition to modify custody. Since the filing of Mother's petition for child support, Father has not contributed any funds to Mother for the benefit of the Children. On May 13, 2020, the trial court conducted a hearing on the issue of child support only. On July 1, 2020, the trial court entered its Order, concluding, in pertinent part, as follows:
28. Due to Mother receiving income of $37,653 for the year 2019 and earning $20,460.06 for the year 2020, Mother introduced two Child Support Obligation Worksheets into evidence. Consistent with the Child Support Obligation Worksheet admitted into evidence as Respondent's Exhibit 2 (which places Mother's gross income per week at $724.10), Father's child support obligation from February 1, 2019 through December 27, 2019 is $1,419.30 per week.
29. Consistent with the Child Support Obligation Worksheet admitted into evidence as Respondent's Exhibit 3 (which sets Mother's gross income per week at $393.46), Father's child support obligation from January 3, 2020 to the present date is $1,428.00 per week. With regard to the 6% rule, Mother is to pay the first $5,072.75 in annual uninsured health care expenses, and thereafter, Father shall pay 98% and Mother 2%.
30. Consistent with [ Ind. Code §] 31-14-11-5, Date for Support Obligation to Begin, in paternity cases, it is as follows:
(1) may include the period dating from the birth of the child; and
(2) must include the period dating from the filing of the paternity action.
31. Given the facts herein, Mother is requesting retroactive child support from the date of the filing of the petitions, specifically, February 1, 2019. Said calculation is as follows:
From Friday, February 1, 2019, through Friday, May 15, 2020 (First Friday after the hearing):
A. From Respondent's Exhibit 2:
Friday, February 1, 2019, through Friday, December 27, 2019
$1,419.30 x 48 weeks = $68,126.40
B. From Respondent's Exhibit 3:
Friday, January 3, 2020 through Friday, May 15, 2020
1,427.56 x 20 weeks = $28,551.20
From May 22, 2020 through June 19, 2020
C. $1,427.56 x 5 weeks = $7,137.80
32. The total arrearage owed by Father to Mother is $103,815.40 as of June 19, 2020. Said amount shall be deemed a judgment in favor of Mother. Father is directed to pay said amount within 90 days through the Parke County Child Support Clerk. Failure to do so will result in the accrual of statutory interest from the date of this order and attorney fees.
(Appellant's App. Vol. II, pp. 21-22).
[13] Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[14] When the trial court has entered findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52, we apply the following two-tiered standard of review: whether the evidence supports the findings and whether the findings support the judgment. Tompa v. Tompa , 867 N.E.2d 158, 163 (Ind. Ct. App. 2007). The trial court's findings and conclusions will be set aside only if they are clearly erroneous, that is, if the record contains no facts or inferences supporting them. Id. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. Id. We neither reweigh the evidence nor assess the credibility of witnesses, but consider only the evidence most favorable to the judgment. Id. We review conclusions of law de novo. Id.
II. Child Support Calculation
[15] The Indiana Child Support Guidelines aid in the determination of the amount of child support that should be awarded and provide a measure of calculating each parent's share of the child support. Ratliff v. Ratliff , 804 N.E.2d 237, 245 (Ind. Ct. App. 2004). Child support calculations are made utilizing the income shares set forth in the Indiana Child Support Guidelines. McGill v. McGill , 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004). The Guidelines apportion the cost of supporting children between the parents according to their means, 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. Id. The trial court is vested with broad discretion in making child support determinations and a calculation of child support under the Guidelines is presumed valid. Id.
[16] When fashioning a child support order, the trial court's first task is to determine the weekly gross income of each parent. Ratliff , 804 N.E.2d at 245. 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. Id. While the Child Support Guidelines advocate a total income approach to calculating weekly gross income, the Guidelines recognize that determining income is fact-sensitive when irregular income, such as bonuses, overtime, and commissions, is involved. Id.
[17] Here, Father does not contest the imposition of child support; rather, he challenges the trial court's calculation of the amount he is mandated to pay as support. Specifically, Father's argument focuses on four distinct areas—analyzed in a single paragraph for each issue, without citations to the record or references to caselaw—(1) Father's incentive offer for Mother's relocation to Georgia; (2) the purchase of Father's current residence in Whitestown; (3) Father's ownership in Oxford Global and the Hong Kong bank account; and (4) Father's business practices. We shall discuss each contention in turn.
[18] First, Father argues that "unrefuted testimony" indicates that Father did not have $80,000 to incentivize Mother's move to Georgia and $500,000 towards the purchase of a house, as testified to by Mother. (Appellant's Br. p. 7). This ‘unrefuted testimony’ relied upon by Father is his own testimony informing the trial court that in order to be able to give these funds to Mother he would have had to sell a business. However, as Mother refused Father's offer to relocate to Georgia, Father did not sell his business, and therefore he maintains that he did not have the money as claimed by Mother. Father's argument is without merit. During the hearing, Mother submitted evidence that around the time of Father's offer, Uway Extrusion LLC's First Financial bank records reflected cash reserves in the amount of $502,178.51. See Merrill v. Merrill , 587 N.E.2d 188, 190 (Ind. Ct. App. 1992) (income from the operation of a business is properly included for purposes of calculating child support). It is clear that the trial court credited Mother's testimony in this respect, and Father's argument amounts to a reweighing of her credibility, which we cannot do. See Tompa , 867 N.E.2d at 163.
[19] Turning to Father's current residence in Whitestown, Father claims that "Mother alleges that Father purchased the Whitestown House for $825,000 in cash with a cash deposit of $8,000; the unrefuted testimony was that the Whitestown House was purchased by Father's current wife prior to the marriage." (Appellant's Br. p. 7). Again, the ‘unrefuted testimony’ referred to is Father's own statement. Instead, a review of the record discloses that the closing statement for the Whitestown residence shows the buyers as Father and his current wife, as tenants-in-common. Furthermore, as admitted by Father, Uway Extrusion's First Financial Bank account statement indicates that check number 1093 in the amount of $8,000 was used for the down payment on the residence. Also, on July 17, 2019, $820,000 was withdrawn from Uway Extrusion's First National Bank account. As noted by the trial court, "[a]lthough Father testified that his wife purchased the home, it is undisputed that he is an owner of the home which bears no mortgage." (Appellant's App. Vol II, p. 17). Therefore, Father's lack of a monthly mortgage or rent payment provides him with a lower cost of living that frees up money for the support of his Children. See Glass v. Oeder , 716 N.E.2d 413, 418 (Ind. 1999) (A rent-free living situation presumably frees up money for the support of children and is a proper fact that may be considered in calculating income for child support obligations).
[20] With respect to Father's ownership of Oxford Global and the Hong Kong bank account, Father contends that the only supporting evidence establishing his ownership amounted to an email conditionally admitted during Mother's testimony. The email, dated March 31, 2008, indicated that Father planned to shelter money by establishing Oxford Global as an overseas entity and inquired whether Li would be willing to be the owner of the business with Father retaining all authority and control. Father's overall intent appeared to be his avoidance to pay United States taxes. Our review of the record indicates that while the email was initially conditionally admitted during Mother's testimony, Father was questioned about the email by Mother's attorney. Father's attorney objected to the questioning based on "illegally obtained information," as well as to the admissibility of the document, both of which were overruled by the trial court. (Tr. Vol. II, p. 158). Father also admitted to knowing Li and recalled "some of that stuff," meaning setting up the Hong Kong account and wiring money into it. (Tr. Vol. II, p. 158).
[21] In its Order, the trial court credited Mother's testimony about Oxford Global as "[d]uring their relationship, Mother provided the bookkeeping for these business entities and has personal knowledge as to how Father financially operates his companies." (Appellant's App. Vol. II, p. 15). Accordingly, as we are not allowed to reweigh the evidence or the credibility of the witnesses, the trial court properly included Father's ownership of Oxford Global and his Hong Kong bank account. See Tompa , 867 N.E.2d at 163.
[22] Lastly, Father objects to the inclusion of Mother's testimony regarding Father's business practices in the trial court's calculation of his income because Mother's knowledge was "stale" and should not have been considered. (Appellant's Br. p. 8). Although Mother had not been employed by Father for at least two years, the evidence reflects that Father's business practices had not changed. Mother testified that during her employment with Father, Father used business income to pay his personal expenses. At the hearing, Father admitted that the businesses still continues to pay for his personal expenditures. Since Mother's employment, Father purchased real estate in Georgia and in Whitestown, Indiana, using company funds while using the residences for his own use. Father also acquired vehicles as personal property while using business income. Accordingly, we cannot conclude that the trial court abused its discretion by relying on Mother's testimony.
[23] In sum, based on the evidence before us and the strong presumption of validity afforded to a trial court's calculation of child support, we cannot say that the trial court improperly calculated Father's income for the purpose of determining his child support obligation.
III. Mother's in-kind Benefits
[24] Father also contests the trial court's refusal to consider the amount of rent saved by Mother for living in a home owned by Father as an in-kind benefit for the purposes of determining child support. We reiterate that the Indiana Child Support Guidelines require a trial court to determine the proper level of child support by calculating each parent's weekly gross income. Child Supp. G.1. Indiana Child Support Guideline 3(A)(2) provides:
Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business should be counted as income if they are significant and reduce personal living expenses. Such payments might include a company car, free housing, or reimbursed meals.
The commentary to this Guideline explains that:
[R]egular and continuing payments made by a family member, subsequent spouse, roommate or live-in friend that reduce the parent's costs for rent, utilities, or groceries, may be the basis for imputing income. The marriage of a parent to a spouse with sufficient affluence to obviate the necessity for the parent to work may give rise to a situation where either potential income or imputed income or both should be considered in arriving at gross income.
Child. Supp. G.3(A), Comm. 2(d).
[25] In Glass v. Oeder , 716 N.E.2d 413, 417-418 (Ind. 1999), our supreme court affirmed the trial court's calculation of weekly gross income where the trial court included imputed income of $1,500 per month for Glass’ rent-free living arrangement which the supreme court found "reasonable based on the description of the house." The court also imputed income to Oeder based on Oeder's spouse's contributions to the household. Id. at 418. "As with Glass’ living arrangement, the contribution Oeder's spouse makes to their home presumably frees up money for the support of her children and is a proper factor that may be considered in calculating her income." Id.
[26] Here, Mother lived rent-free in Father's home in Rockville, Indiana. She testified that the value of the rent was $600 per month, which amounted to a $3,600 in-kind benefit from February 1, 2019 to July 31, 2019—the date from filing the petitions for child support to the date Mother relocated to Illinois. When questioned if it would not be reasonable if Father "would receive some type of credit for the fact that he provided [Mother] with a free house," Mother acknowledged that it "would be reasonable that he should get some type of credit." (Tr. Vol. II, p. 128). Mother's rent-free living arrangement unquestionably reduced her living expenses and freed up money to support the Children. Accordingly, we remand to the trial court to include the value of Mother's in-kind benefits in the calculation of the parties’ respective child support obligation.
Although Mother claims that the trial court "determined that an in-kind credit should not be awarded," our review of the trial court's Order does not reveal such a determination. (Appellant's Br. p. 20). Rather, the trial court acknowledged in its findings that Father provided Mother with a rent-free home, valued at approximately $600 per month, but did not include or reject this in-kind benefit in its calculation of the child support obligation.
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CONCLUSION
[27] Based on the foregoing, the trial court did not abuse its discretion in calculating Father's income for the purpose of establishing child support; but we reverse the trial court's Order in part and remand with instruction to consider Mother's in-kind benefits in her weekly gross income for child support purposes.
[28] Affirmed, in part, reversed, in part, and remanded with instruction.
[29] Najam, J. and Crone, J. concur