COA Reverses Dissolution Decree Imputing Potential Income to Mother

Posted By Hollingsworth & Zivitz Attorneys at Law || 27-Apr-2017

Originally published on TheIndianaLawyer.com:

A divided Indiana Court of Appeals has reversed the terms of a marriage dissolution decree, finding the trial court erred in imputing potential income to the mother based on the fact that she should now be able to work full-time because her children are older.

In Karen B. Salser v. Gregg A. Salser, 02A03-1606-DR-1308, Karen Salser was a part-time practicing nurse practitioner when she filed for divorce from her husband, Gregg Salser, a pharmaceutical sales representative. When Karen Salser filed for divorce in December 2014, she earned $55 an hour, while Gregg Salser’s annual salary was $95,000 with a potential bonus of up to $27,000.

In September 2015, Gregg Salser requested that he and his wife be ordered to contribute equally to their son Derric’s college expenses for his first year at Purdue University. Karen Salser, however, testified that she could not contribute financially to those costs.

The mother told the court her duties at the integrative medical practice where she worked were different than the duties of a nurse practitioner at a traditional practice and that she would be willing to work additional hours if they became available, though at the time of the hearing they were not. She also said she did not want to transition to full-time work because she wanted to care for her daughter who was still at home.

An amended decree was issued in April 2016, ordering, among other things, that the bonuses both parents could receive from their employers were uncertain and, thus, could not factor into the base child support calculation. Additionally, the court found that because Derric was no longer living in the family home and their daughter was now 13, Karen Salser was capable of working full-time, so her income was imputed for $55 an hour at 40 hours a week.

Thus, a potential income of $2,200 per week was assigned to Karen Salser, making her an equal wage earner with her ex-husband. Both parents were assigned an equal share of Derric’s school expenses.

Karen Salser raised several issues on appeal, challenging the court’s rulings on imputing potential income, not including bonuses in calculating income and the order that she contribute equally to her son’s college expenses. A divided Indiana Court of Appeals agreed with the mother and reversed the trial court’s decision on Wednesday.

Judge Elaine Brown, writing for the majority, noted that the trial court had not made a finding that Karen Salser was voluntarily underemployed, but instead found that she should be working full-time because her oldest child was out of the home and her youngest child was now a teenager. Thus, the majority reversed the assignment of potential income to Karen Salser.

Further, Brown wrote that Gregg Salser had earned a $1,300 bonus in four months and that his contract allowed for up to a $27,000 bonus each year, making his bonuses “a substantial portion of his annual income… .” Thus, it was also erroneous to not include bonuses in the child support calculation, Brown said.

Finally, since the trial court erroneously imputed potential income to Karen Salser, the majority found the trial court erred in its rationale for assigning equal responsibility for Derric’s educational expenses.

The case was remanded with instructions to recalculate Karen Salser’s income based on her present earnings, recalculate child support by including both parents’ bonus income, and to enter an new order for Derric’s post-secondary expenses that “weighs the relative abilities of Mother and Father to contribute to the payment of the expenses.”

Judge Cale Bradford dissented on each of Karen Salser’s arguments, writing in a separate opinion that the trial court did not err in its decision to impute potential income, exclude bonuses or order both parents to equally contribute to their son’s college expenses.

Categories: In the News

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