                                                                                Jul 30 2013, 7:30 am

FOR PUBLICATION

APPELLANT PRO SE:                                          ATTORNEYS FOR APPELLEE
                                                           STATE OF INDIANA:
J.W.J.
Indianapolis, Indiana                                      GREGORY F. ZOELLER
                                                           Attorney General of Indiana

                                                           KYLE HUNTER
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana

                                 IN THE
                       COURT OF APPEALS OF INDIANA

IN RE: THE PATERNITY OF Jo.J.,                             )
                                                           )
J.W.J.,                                                    )
                                                           )
          Appellant-Respondent,                            )
                                                           )
                 vs.                                       )       No. 29A05-1209-JP-447
                                                           )
D.C.,                                                      )
                                                           )
          Appellee-Petitioner.1                            )

                    APPEAL FROM THE HAMILTON SUPERIOR COURT #2
                           The Honorable Daniel J. Pfleging, Judge
                               Cause No. 29D02-0708-JP-949

1
  The Attorney General participates in this appeal because in the trial proceedings, the State actively
participated in this cause pursuant to Indiana Code section 31-14-4-2. Although the State’s role pursuant
to this statute is to represent the child in paternity proceedings, we also attribute the State’s arguments to
D.C. to the extent that their interests are aligned.
                                      July 30, 2013

                            OPINION–FOR PUBLICATION

BAKER, Judge

       J.W.J. (Father), who works as a commissioned salesman, has continuously used

“creative accounting procedures” for several years to minimize his gross income and

reduce his child support obligation. Appellant’s App. p. 32. Father also has a pattern of

accumulating large arrearages and then paying them when a petition for contempt is filed.

       A few years ago, D.C. (Mother) appealed an order reducing Father’s support

obligation based on Father’s alleged decrease in earnings, and this Court reversed the trial

court’s determination of Father’s income. Before that appeal was recertified to the trial

court, however, Mother requested a temporary modification of support based on our

guidance. After a combined hearing on this petition and on yet another contempt petition

filed regarding yet another large arrearage, the trial court granted Mother’s request for

temporary modification, changing Father’s child support obligation to $252.52 per week.

The final order modifying Father’s support was not issued until the day after our Supreme

Court denied transfer of Mother’s appeal. The trial court also ordered Father jailed for

contempt but agreed to release Father upon his payment of a bond equal to six months of

future support.

       Father challenges numerous aspects of the trial court’s order, including:         (1)

whether the trial court could hold a hearing or issue an order on Mother’s request for a

temporary support modification while her appeal was still pending; (2) whether the trial

                                             2
court accurately calculated his gross income, Mother’s gross income, and the final child

support obligation; and (3) whether the trial court could order him incarcerated for

contempt when he was current on his child support obligation at the time the order was

made or issue a bond for future support. Father also requests appellate attorney fees.

         We conclude that although the trial court may have erred in considering Mother’s

request for “temporary support” prematurely, it did not err in modifying Father’s child

support obligation because the matter had been recertified to the trial court by the time

the final order was made. Likewise, the figures that the trial court used in arriving at the

amount of Father’s new child support obligation were within its discretion based on the

evidence presented. We also conclude that the trial court did not err in jailing Father for

contempt when Father had been warned multiple times at various hearings that this could

occur if Father failed to strictly comply with his child support obligation and that trial

courts are statutorily authorized to require a child support obligor to post a bond

guaranteeing future payments of support.                Finally, we decline Father’s request for

appellate attorney fees. Accordingly, we affirm the judgment of the trial court.

                                                FACTS2

2
  We note that Father’s “statement of case” and “statement of facts” sections in his brief are replete with
self-serving facts and argument and thus do not abide by the requirement of our appellate rules to present
the facts according to the standard of review appropriate for the judgment being appealed. See Ind.
Appellate Rule 46(A)(5)-(6); Burrell v. Lewis, 743 N.E.2d 1207, 1209 (noting that a statement of facts
that is “rife with argument” is “inappropriate” and a violation of our appellate rules).

Also, during the pendency of this appeal, Father filed two motions asking this Court to consider further
evidence. The first motion asks us to consider two motions to correct errors that Father filed in July
2012—one titled Respondent’s Motion to Correct Errors re: Final Order of June 14, 2012, and the other
                                                    3
       Mother and Father have been litigating child support issues concerning their minor

child, J.B.J., for several years. In July 2010, Father’s weekly child support obligation

was reduced to $149.54 plus $100 on his $6,970.81 arrearage based on Father’s alleged

decrease in earnings, and Mother appealed, raising a number of issues. On October 25,

2011, this Court affirmed in part and reversed in part in a memorandum decision. D.C. v.

J.J., No. 29A02-0708-JP-1111, 957 N.E.2d 213, at *1 (Ind. Ct. App. Oct. 25, 2011).

Concluding that the trial court erred in determining Father’s income for 2010 and by

granting Father a credit for health insurance premiums for a time period when no

coverage was being provided to J.B.J., this Court remanded the case for a redetermination

of Father’s income and a recalculation of Father’s support obligation and arrearage. Id. at

*10-12. Our Supreme Court denied transfer on June 20, 2012. D.C. v. J.J., 969 N.E.2d

605 (Ind. 2012).

       While Mother’s appeal was pending, Mother requested and received a change of

judge, and the Honorable Daniel Pfleging was appointed as special judge on June 21,

2011. After a hearing in August 2011, Judge Pfleging issued an order that stated in part,

“the true certainty of the entire days’ [sic] worth of testimony is that [Father] is not

paying support as ordered.” Appellant’s Br. p. 43. Judge Pfleging further admonished

the parties to obey the court’s orders and advised them that “contempt is serious and

often results in sanctions which can mean incarceration.” Id. Finally, Judge Pfleging

titled Respondent’s Motion to Correct Errors re: Order to Pay Support. As both of these documents were
already included in Father’s appendix, we deny Father’s motion to consider filed October 9, 2012.
                                                  4
changed the location where the parties were to exchange J.B.J. for parenting time from a

fire station to a nearby gas station.3

        On May 25, 2012, the trial court held a consolidated compliance hearing on one of

Mother’s prior contempt petitions and on Mother’s request for a “temporary” child

support order to be issued pending a final decision on her appeal. Appellant’s App. p. 21.

At the hearing, Father admitted that he had only been making support payments of $50

per week since March 15, 2012, and that he had not been paying anything toward his

arrearage.

        Father, who is a commissioned sales professional, claimed that he had no income

because he was negotiating a new contract with Level Solutions and because he had been

injured in his part-time job at FedEx, which he had started in March 2012. However, in

the prior two months, Level Solutions had advanced Father a total of $8000, from which

Father’s future commissions were to be reduced as he began making sales for the

company. In addition, Father’s earnings while at FedEx were approximately $800.

        In 2011, Father did business with Barth Electric and received approximately

$14,000 in personal commissions. Then, beginning in May or June 2011, Father’s wife

became the sole owner of Johnston Technology Group, LLC (JTG), and JTG and Level

3
  In Father’s second motion to consider, Father asks us to consider the change in the parenting time
exchange location in his appeal. Father contends that this issue was included as part of the trial court’s
denial of his motion to correct errors on August 8, 2012. However, neither of Father’s motions to correct
errors denied on that date included the exchange location as an issue. Moreover, as the trial court’s
original order changing the exchange location was issued on August 26, 2011, and Father did not appeal
that order, Father’s request to include this issue in his present appeal is not timely. Ind. Appellate Rule
9(A)(1). Accordingly, Father’s second motion to consider is also denied.
                                                    5
Solutions entered into “a contract where [Father] was going out and making [sales] calls

and [Father’s wife] was basically running the company.” Tr. p. 98. Father testified that

because he was not an owner of JTG, he did not know the value of the Level Solutions

contract to JTG, and his wife received all of the commissions from that contract and used

those monies to pay their joint bills so that Father could concentrate on making sales

rather than running a business. An exhibit submitted at the hearing showed that, similar

to Father’s arrangements with Level Solutions at the time of the hearing, JTG had

received monthly commission advancements of $4000 each for the months of October

2011, November 2011, and January 2012. However, Father submitted a letter from Level

Solutions indicating that from May 2011 to December 2011, JTG earned only $1,968.72

in actual commissions. Respondent’s Ex. F.

       Also in 2011, Father cashed in his IRA, receiving in excess of $58,000 that he

claimed to have used for living expenses. Father also received $63,000 from the sale of

his home, but Father reportedly gave all of this money to his ex-wife, from whom he had

separated in February 2012. Father allegedly obtained additional spending money by

selling off assets, including furniture and small recreational vehicles.

       Regarding Father’s expenses, Father testified that he spent $800 monthly on

transportation costs because he was making cold sales calls all over the state trying to

“ramp up a territory.” Tr. p. 101. According to Father’s financial declaration, his other

monthly expenses totaled $2,411.19. Father also testified that his food costs “range[]

from $700.00 to $900.00 bucks a month.” Id. at 51. Father admitted to taking a $5000

                                              6
vacation in December 2011, but he characterized his expenses as “bare bones living.” Id.

at 110. When asked how he could support these expenses with no income, Father told the

trial court that he was not behind in his rent but stated that he was considering filing

bankruptcy.

       Father also claimed that he was “up to speed” on his child support obligation and

arrearage as of February 2012. Tr. p. 109. However, the State presented evidence that

since January 2012, $2,990.80 in child support had become due, Father had received

$8000 in commission advancements and $800 in other wages, but Father had fallen

further behind on his arrearage.        More particularly, in the eleven weeks before the

hearing, $1,645.49 became due, but Father paid only $500 of that amount in weekly

installments of $50 and had contributed nothing to his growing arrearage, which was

$1,192.64 at the time of the hearing.

       Mother testified that she earned approximately $22,000 in 2011 and that she had

$1989 in monthly expenses without accounting for childcare or food. However, Mother

failed to provide the trial court with a financial declaration.

       At the conclusion of the hearing, the trial court asked Mother to submit her

financial declaration and Father to submit a child support worksheet before taking the

matter under advisement. And in the two weeks following the hearing, Father made

payments totaling $1,622.64 to become current on both his weekly support obligation and

the arrearage.

                                               7
       The parties reconvened on June 14, 2012, for the pronouncement of the trial

court’s decision. The trial court briefly recited the case’s history, including that Father

had been found in contempt of court three separate times since 2009 for his failure to pay

support in a timely and consistent manner, but that other than the contempt findings and

admonishments to pay support as ordered, no further sanctions had ever been imposed.

       In relaying its findings of fact, the trial court noted that “[u]ntil 2012 [Father] had

reduced his arrearage but in 2012 the arrearage had grown by $798.27.” Appellant’s

App. p. 42.    The trial court also expressed concern regarding Father’s accounting

practices, noting that Father “claims to be unemployed and/or having no income but

spends $800.00 per month in transportation to make cold calls all over the state” and that

“in late 2011 or early 2012 [Father] took a vacation and expended over $5,000 for said

vacation.” Id. at 43.

       The trial court determined that Father’s failure to pay his child support obligation

timely and consistently was “willful and wanton” because during the time period since

the last contempt hearing, Father “had resources in which he was able to pay for a

vacation and pay other expenses rather than support.” Id. at 44. And although Father

was current in his support as of June 14th, the trial court determined that coercive

measures were still needed to ensure consistent payment of “future support.”               Id.

Accordingly, the trial court ordered Father to serve thirty days of incarceration in the

local county jail. The trial court also ordered Father to post a $6070 cash bond to be

applied to Father’s support payments and arrearage over the next six months “to take care

                                              8
of [Father’s] support obligations while he is ramping up his new business.” Tr. p. 172-

73. Father was released when he posted the full bond amount on June 15, 2012.

       The trial court issued a formal written order regarding its June 14, 2012 orders on

June 21, 2012. And in a separate order filed the same day, the trial court further

explained that it had changed Father’s weekly support obligation to $252.52 per week

based on its determination that Father’s weekly gross income was $1847. In arriving at

this income amount, the trial court reiterated its concern that Father “uses creative

accounting procedures and/or numerous corporations to confuse and on some occasions

to actually misstate his income position.” Appellant’s App. p. 32. In particular, the trial

court noted that Father has $3270 in monthly expenses but that “[s]omehow, [Father]

makes his expenses with no income.” Id. at 31. The trial court further stated that it was

attributing a weekly income of $1847 to Father because that amount, though

“substantially lower than the State’s [worksheet provides] . . . will reflect what he would

have to earn to meet the expenses that he indicates he has.” Id. at 33.

       The trial court attached four child support worksheets to its order—one submitted

by Father, one submitted by the State on behalf of Mother but not signed by her, 4 and two

created sua sponte by the trial court. Each worksheet provided for a different child

support amount, with those amounts ranging from $95 to $278.77 per week, but the trial

4
  Although the child support worksheet was not signed by Mother, the State based Mother’s income and
liabilities off Mother’s financial declaration, which Mother had signed under penalty of perjury and
submitted after the conclusion of the May 25, 2012 hearing.
                                                 9
court did not adopt any one worksheet in particular in temporarily modifying Father’s

support obligation to $252.52 per week.

       Father filed two motions to correct errors, one for each of the court’s final orders,

on July 16 and 20, 2012. The trial court denied both motions, and Father now appeals.

                             DISCUSSION AND DECISION

       Father raises numerous issues for our consideration. More particularly, Father

asserts that the trial court lacked jurisdiction to issue a temporary support order while

Mother’s appeal was still pending, and that even if the trial court could temporarily

modify child support during Mother’s appeal, the specific support amount ordered was

not supported by the evidence. Next, Father claims that the trial court erred when it held

Father in contempt and ordered his incarceration without due process of law. Finally,

Father contends that he is entitled to attorney fees.

       We will affirm the trial court’s judgment on an issue of child support unless it is

clearly erroneous, meaning that it is clearly against the logic and effect of the facts and

circumstances before the court. McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1252 (Ind.

1994). We consider only the evidence and reasonable inferences supporting the trial

court’s judgment and refrain from reweighing the evidence or assessing the credibility of

witnesses. Hamiter v. Torrence, 717 N.E.2d 1249, 1252 (Ind. Ct. App. 1999). Moreover,

because Father is appealing from the denial of two motions to correct error, we note that

a trial court’s decision on a motion to correct error “comes to an appellate court cloaked

                                              10
in a presumption of correctness.” Petersen v. Burton, 871 N.E.2d 1025, 1028 (Ind. Ct.

App. 2007).

                    I. Jurisdiction to Issue Temporary Support Order

       As mentioned above, Father’s first contention is that the trial court lacked the

authority to modify the existing child support order while Mother’s appeal was pending.

And because our Supreme Court did not deny transfer on Mother’s appeal until June 20,

2012, Father asserts that the trial court should never have granted Mother a hearing on

May 25, 2012, and that all of the orders stemming from evidence presented at that

hearing should be vacated as being issued without subject-matter jurisdiction.

       When the trial court was discussing with the parties what was to be addressed at

the May 25, 2012 hearing, the following colloquy took place:

       [Father’s attorney:]        We are here on modification?

       THE COURT:                  No, a temporary order, not modification.

       [Father’s attorney:]        What’s the difference?

       THE COURT:                  I’m not really sure.

Tr. p. 148.

       Mother offered the following explanation regarding why she had requested a

temporary support order:

       I am largely dependent on $250.00 a week to sustain the bills that this
       family has, and I requested . . . temporary child support to be put in place,
       so that there would not be a lag time between now and the decision that will
       be handed down from the higher courts, and I absolutely need $250.00 a
       week to pay my bills.

                                            11
Id. at 149-50.

       As Father suggests, the appeal of a particular issue—here, the amount of Father’s

weekly child support obligation—generally divests the trial court of further jurisdiction

over the issue until the appeal is finalized. Elbert v. Elbert, 579 N.E.2d 102, 114 (Ind. Ct.

App. 1991). In Harris v. Harris, this Court considered whether the premature filing of a

petition to modify child support made the subsequent modification void. 800 N.E.2d 930

(Ind. Ct. App. 2003). In concluding that it did not, we reasoned that “the filing of any

such premature pleading may subsequently be cured so long as the trial court does not

invoke jurisdiction of the matter.” Id. at 937. Thus, because the trial court had not

actually modified child support until after the trial court’s judgment was affirmed on

appeal and the matter was recertified to the trial court, at which point the trial court was

once again vested with jurisdiction over the support issue, there was no error in ordering

a prospective modification of support. Id. However, the Harris Court also concluded that

it was error for the trial court to order the modification retroactive to the date of the

premature filing because “[t]o so hold would be to validate without qualification the

filing of the Petition to Modify as of that date.” Id.

       In this case, by requesting “temporary support,” it is apparent that Mother was

hoping to take premature advantage of certain favorable aspects of our memorandum

decision in D.C. v. J.J., No. 29A02-0708-JP-1111, 957 N.E.2d 213, at *1 (Ind. Ct. App.

Oct. 25, 2011). Specifically, although Mother had petitioned for transfer to our Supreme

                                              12
Court on other issues that were decided less favorably to her, she wanted the trial court to

proceed to recalculate Father’s income and child support obligation based on the

memorandum decision’s guidance, even though the matter had not yet been recertified

back to the trial court.

        Although, based on Harris, Mother’s request was premature, the trial court’s final,

written orders temporarily modifying child support were not issued until June 21, 2012—

one day after our Supreme Court denied transfer. These are the orders from which Father

filed his motions to correct error. Thus, as these orders recalculating Father’s income and

support obligation were not issued until after the denial of transfer, the trial court did not

err in modifying Father’s support obligation prospectively. See Harris, 800 N.E.2d at

937. Moreover, unlike Harris where this Court had affirmed the trial court’s judgment on

appeal, here the trial court was ordered on remand to recalculate Father’s income and

child support obligation back to 2010. D.C. v. J.J., 957 N.E.2d at *11. Thus, the trial

court acted within its discretion to modify Father’s child support obligation effective June

14, 2012.5

5
  During the pendency of this appeal, the trial court also recalculated Father’s income and child support
obligations for 2010, 2011, and 2012. After an order was issued on March 18, 2013, Father filed a
“Motion to Vacate Order of Lower Court and to Set Emergency Hearing for Child Support” on May 9,
2013, asking us to conclude that the trial court was once again divested of jurisdiction to consider these
issues as a result of the present appeal. However, because the orders currently being appealed did not
recalculate Father’s 2010, 2011, or 2012 child support obligations prior to June 14, 2012, as the trial court
had been ordered to do on remand, Father’s income and child support obligations for those periods
remained within the jurisdiction of the trial court during the pendency of this appeal. If Father wished to
appeal the trial court’s order issued March 18, 2013, he should have filed a separate notice of appeal.
Father cannot include his challenges to that order in the present appeal. Father’s motion is hereby denied.
                                                    13
       We note for the purpose of clarification that a trial court is not precluded from

entertaining a separate and distinct petition to modify child support even if a previous

support order is still being appealed. See Clark v. State, 727 N.E.2d 18, 21 (Ind. Ct. App.

2000) (explaining that a trial court retains jurisdiction notwithstanding an appeal to

“preside over matters which are independent of and do not interfere with the subject

matter of the appeal”). Indiana Code section 31-16-18-1(b) provides that, subject to

certain exceptions not relevant here, child support orders may be modified either:

       (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.

       Because a statutory right to modify support exists any time the elements of either

subsection are met, the trial court retains continuing jurisdiction to consider separate and

distinct petitions to modify child support regardless of whether a prior order is still on

appeal. See Clark, 727 N.E.2d at 21 (holding that a trial court retained jurisdiction to

consider whether to revoke a defendant’s probation during his direct criminal appeal

because the revocation issue was sufficiently distinct from the issues to be decided in the

appeal). We agree with the State that “[f]or the best interest of the child and efficiency of

                                             14
the courts, the trial court must maintain prospective jurisdiction to alter support orders

when a change in circumstances warrants it.” Appellee’s Br. p. 10.

      Here, however, Mother requested temporary support based on the intermediate

appellate decision without waiting for the matter to be recertified to the trial court.

Moreover, the trial court did not include in its orders findings that would have supported

modification under Indiana Code section 31-16-18-1(b)(1) or (2), and indeed, the trial

court told the parties specifically that it was not considering Mother’s petition for

temporary support as a separate petition to modify child support. Tr. p. 148. Therefore,

we do not consider Mother’s request to have been a separate and distinct request for

support modification.

                        II. Parents’ Income and Amount of Support

      Father next claims that the trial court’s $252.52 weekly child support order was

inconsistent with the evidence presented at the hearing. In making this claim, Father

contends that the trial court erred in its calculations of both his income and Mother’s

income and in its calculation of the total amount of weekly child support due.

                                   A. Father’s Income

      Regarding Father’s income, the trial court stated that “it is almost impossible to

determine the true and accurate income being earned by [Father]” because of how he

presents his income information. Appellant’s App. p. 43. Nevertheless, the trial court

defended its decision to attribute a gross weekly income of $1847 to Father because that

amount, although “substantially lower than the State’s [worksheet provides] . . . will

                                            15
reflect what he would have to earn to meet the expenses that he indicates he has.” Tr. p.

33. Father claims that the trial court erred by claiming to have arrived at this income

amount based on his expenses when in actuality the amount is just an average of the $925

that Father claimed on his child support worksheet and the $2769 alleged by the State.

Moreover, Father maintains that because the trial court found that he had $3270 in

monthly expenses, he actually needed even less than his claimed $925 per week to meet

all of his expenses, and thus, the trial court’s imputation of $1847 in gross weekly income

to him on the basis of his expenses was clearly erroneous.

       Our child support guidelines broadly define weekly gross income “to include not

only actual income from employment, but also potential income and imputed income

from ‘in-kind’ benefits.” Glover v. Torrence, 723 N.E.2d 924, 936 (Ind. Ct. App. 2000).

And in the case of irregular income such as that earned by Father, the guidelines

recognize that the calculations necessary to arrive at a just result are “very fact sensitive.”

Ind. Child Support Guideline 3A, cmt. 2(b). Moreover, the guidelines urge judges and

practitioners to “be innovative in finding ways to include income that would have

benefited the family had it remained intact, but be receptive to deviations where reasons

justify them.” Id. To that end, “[a] trial court has wide discretion with regard to

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

obligation.” Miller v. Sugden, 849 N.E.2d 758, 761 (Ind. Ct. App. 2006).

       It is apparent that the trial court was well within its discretion to attempt to

calculate Father’s actual income based upon his expenses. See Glover, 723 N.E.2d at 937

                                              16
(holding that a trial court did not err in imputing income to a father based on his reported

expenses, especially in light of “Father’s history of under representing his income and the

large discrepancy between his reported income and his expenses”).              The question

remains, however, whether the evidence supports the amount at which the trial court

arrived. Father is correct that $1847 is the average of the $925 that Father claimed to be

his income and the $2769 that the State had attributed to him in its worksheet. But it

does not necessarily follow that this amount was not supported by evidence in the record.

       Contrary to Father’s assertions, the trial court did not actually find that he had only

$3270 in monthly expenses but rather that Father’s claimed expenses totaled “in excess

of $3270.”    Appellant’s App. p. 32 (emphasis added).           In fact, Father’s financial

declaration listed monthly expenses totaling $3,211.19 and weekly expenses, including

weekly court-ordered child support for his prior children, of $238.02. Ex. A. Converting

Father’s separately listed weekly expenses into monthly expenses, we arrive at additional

monthly expenses of $1,023.49. Thus, according to Father’s own financial declaration,

his regular monthly expenses equaled $4,234.68. Moreover, Father admitted to having

additional expenses at the May 25, 2012 hearing that he had left off of his financial

declaration, including additional food costs of up to $300 per month, taking his children

to the movies, and taking a $5000 vacation within the six months prior to the hearing. Tr.

p. 51, 60, 103-04.

       Under these circumstances and taking into consideration the trial court’s finding

that it is “almost impossible to determine” Father’s true income, appellant’s app. p. 43,

                                             17
we cannot now conclude that the trial court erred by arriving at Father’s income by

averaging the amount Father claimed to be his income and the amount attributed to him

by the State. See Elliott v. Elliott, 634 N.E.2d 1345, 1349 (concluding that a trial court

did not err in imputing income to a father above what he reported on his child support

worksheet when there was evidence that the father may not have reported all of his

income); see also Walters v. Walters, 901 N.E.2d 508, 513-14 (Ind. Ct. App. 2009)

(upholding the trial court’s calculation of a mother’s income seemingly based on an

average of the amounts alleged by both parties).

                                   B. Mother’s Income

       Regarding Mother’s income, Father claims that the trial court was without an

adequate basis to arrive at a weekly gross income amount of $379 for Mother because

Mother failed to provide any evidence during the hearing to support the business

expenses that she claimed on her financial declaration and because she did not sign the

child support worksheet submitted on her behalf by the State. Moreover, Father argues

that the trial court erred by giving Mother credit for child care expenses. Finally, Father

argues that the trial court should have imputed additional income to Mother because she

has the potential to earn $70,000 per year.

       There is some support for Father’s contention that a trial court may not base an

award of child support on an unsigned and unverified child support worksheet. In Cobb

v. Cobb, this Court reversed a trial court’s modifying child support when the order “could

only have been based on [the father’s] unsigned and unverified worksheet . . . , which

                                              18
contradicted his trial testimony as to his income.” 588 N.E.2d 571, 574-75 (Ind. Ct. App.

1992). However, in this case, the trial court’s determination of Mother’s income was

supported, rather than contradicted, by evidence in the record.

       More specifically, Mother testified at the May 25, 2012 hearing that she owns two

businesses and earns “roughly $20,000.00 a year.” Tr. p. 155, 158. In 2011, Mother

earned $22,000 in total gross income and had about $4000 in related business expenses.

Tr. p. 158-59.

       Mother also signed and submitted both a child support worksheet and a financial

declaration. The worksheet, which Mother submitted at the hearing, indicated a weekly

gross income of $461.54, but it did not specifically indicate whether Mother had

deducted any business expenses from that amount. Ex. 3. Mother’s worksheet did not

request a reduction for work-related child care expenses and indeed, she indicated at the

hearing that she was not requesting that deduction to be included in her request for

temporary support. Id.; Tr. p. 154. Mother’s financial declaration, which she submitted

after the hearing, provided for weekly self-employment gross income of $423 and weekly

child support income of $125 for her subsequent-born child, as well as deductions

totaling $169. Appellant’s App. p. 167. The final sum of these figures equaled $379,

which the State used as Mother’s gross weekly income in the worksheet it submitted and

which the trial court also adopted as Mother’s gross weekly income amount on the

worksheets it created. Id. at 37, 39-40.

                                            19
       Our child support guidelines define weekly gross income from self-employment as

“gross receipts minus ordinary and necessary expenses.” Ind. Child Support Guideline

3(A)(2). Additionally, the guidelines provide that “[i]ncome statements of parents shall

be verified with documentation of both current and past income.” Ind. Child Support

Guideline 3(B)(2).     However, the commentary to Guideline 3(B) states that “[t]he

requirement of income verification is not a change in the law but merely a suggestion to

judges that they take care in determining the income of each party.” Id., cmt. 2.

       Using the $379 per week figure that the trial court adopted as Mother’s gross

weekly income, Mother would have an annual income of $19,708. This amount was

clearly supported by Mother’s testimony that she earns approximately $20,000 per year

and that in the previous year, her weekly gross income for child support purposes (gross

receipts less business expenses) would have been $18,000. Although Mother did not

offer independent evidence of her expenses, we conclude that the decision of whether to

require such verification is a matter within the sound discretion of the trial court because

it inherently involves a question of witness credibility. While it may be better practice to

require such independent evidence, here we do not find it to have been an abuse of

discretion for the trial court to have foregone the suggestion.

       In a related argument, Father contends that the trial court erred by “at least

partially” allowing Mother a credit for work-related child care expenses, especially when

this issue was part of Mother’s appeal. Appellant’s Br. p. 17. First, although work-

related child care expenses were an issue in Mother’s appeal, we reiterate that the trial

                                             20
court was once again vested with jurisdiction to reconsider this issue prospectively as of

the date of its final, written orders.6

       Second, Guideline 3(E)(1) provides that reasonable child care costs “incurred due

to employment or job search” should be added to the basic child support obligation and

then deducted from the child support obligation of the parent who pays for the child care.

Thus, these costs are not to be deducted directly from a parent’s employment

compensation to arrive at the parent’s gross weekly income.

       The trial court found that “[Mother’s] financial declaration indicates that she has

work-related [child care] expenses in the sum of $78 a week” but that “[n]either support

worksheet shows that expense.” Appellant’s App. p. 32. The trial court then created two

worksheets on its own, with both attributing gross income to Mother in the amount of

$379 per week but only one of the worksheets showing that Mother has work-related

child care costs of $78 per week.

       We note that it appears that the State’s adoption of $379 as Mother’s gross weekly

income appears to be based on Mother’s financial declaration, which indeed included a

$78 deduction for child care expenses. Appellant’s App. p. 167. However, the trial court

specifically found that the State’s worksheet did not include a credit for work-related

child care expenses. Thus, the trial court may have accepted $379 as Mother’s gross

weekly income notwithstanding any deduction or credit for child care expenses included

6
 During Mother’s appeal, this Court determined that the trial court had not erred by refusing to allow
Mother to take a work-related child care costs deduction for J.B.J. because Mother works from home and
was able to watch her other son simultaneously, so it followed that Mother could do the same for J.B.J.
D.C. v. J.J., memo op. at *9.
                                                  21
in Mother’s financial declaration. Indeed, as discussed above, there was independent

evidence supporting a finding that Mother’s weekly gross income was $379 even without

the child care expense deduction. Thus, this argument fails.

      Father’s final argument related to Mother’s income asks us to find that the trial

court erred by not imputing potential income to Mother. However, this is merely a

request to reweigh the evidence, which we may not do. In sum, we conclude that the trial

court’s determination that Mother’s weekly gross income was $379 was not clearly

erroneous.

                               C. Calculation of Support

      Father next maintains that “it is unclear how the court arrived at a figure of

$252.52 other than Mother’s request that support be $250 per week.” Appellant’s Br. p.

17. Indiana Child Support Rule 2 provides for “a rebuttable presumption that the amount

of the award which would result from the application of the Indiana Child Support

Guidelines is the correct amount of child support.” However, “[a] trial court may, in its

discretion, deviate from the presumptive amount specified by the guidelines if application

would result in an unjust award.” Cobb v. Cobb, 588 N.E.2d 571, 574 (Ind. Ct. App.

1992). In such a situation, the trial court “must set forth a written finding stating the

factual basis for the deviation.” Hamiter v. Torrence, 717 N.E.2d 1249, 1253 (Ind. Ct.

App. 1999) (citing Guideline 3(F)). We will affirm a trial court’s order of child support,

including an order modifying child support, unless the order is clearly erroneous.

McGinley-Ellis, 638 N.E.2d at 1252.

                                           22
       Here, the trial court had five child support worksheets before it—one submitted by

Father, one by Mother, one by the State, and two created by the trial court. Ex. 3;

Appellant’s App. p. 35-40. These worksheets provided for a range of weekly child

support obligations between $95, in the case of Father’s worksheet, to $278.77, as

provided by the first worksheet created by the trial court. Appellant’s App. p. 35, 39.

However, the trial court did not specifically adopt any of these child support worksheets.

Therefore, it appears that the trial court found that none of these worksheets provided a

just award of child support and chose to deviate accordingly.

       As acknowledged by Father, one possible explanation for the trial court’s

deviation is that Mother had requested an award of at least $250 so that she could

maintain her current residence and meet other obligations. This explanation has some

support in the trial court’s order, which states in part: “[Mother] stated that when

[Father] was complying with the Court’s Order and paying $149 regular support plus

$100 towards the arrearage she was able to provide for the parties [sic] minor child. She

asked that support be temporarily modified to $250 per week.” Appellant’s App. p. 33.

       In fixing an amount of child support, the trial court “must consider the children’s

needs and the parent’s general economic condition as it affects the parent’s ability to

financially provide for the children.” Elbert v. Elbert, 579 N.E.2d 102, 112 (Ind. Ct. App.

1991). Thus, to the extent that the trial court deviated from the presumptive child support

amount to arrive at a figure that would allow Mother to continue living in her home and

                                            23
provide for the parties’ minor child to maintain a certain standard of living, we cannot say

that the trial court erred.

     III. Incarceration for Contempt and Appropriateness of Bond for Future Support

       Next, Father challenges the contempt finding and contends that the trial court

erred by ordering his incarceration for thirty days when at the time of the order he was

current on his support obligation. Father further contends that it was error for the trial

court to set a bond amount requiring Father to pay six months of his future support

obligation in advance.

       We will reverse a trial court’s finding of contempt only if there is no evidence or

reasonable inferences supporting the finding. Cowart v. White, 711 N.E.2d 523, 531

(Ind. Ct. App. 1999).         Additionally, it is well-settled that a trial court may use

incarceration as a contempt sanction for a parent’s failure to pay child support so long as

the parent has the financial ability to comply with the order and the delinquency is

willful. Pettit v. Pettit, 626 N.E.2d 444, 445 (Ind. 1993).

       In the instant case, Mother presented evidence on her contempt petition on May

25, 2012, and the parties reconvened on June 14, 2012, for the trial court’s decision. At

that time, the trial court noted that Father had previously been found in contempt of court

three times for the failure to pay his child support timely and consistently but that no

coercive measures had ever been ordered against Father. Tr. p. 169-70. The trial court

further found that, despite Father’s claims otherwise, Father had the financial means to

pay support as ordered “because [he] had it for vacations and for other expenses that he

                                             24
did pay rather than paying support.” Id. at 172. Accordingly, the trial court determined

that Father’s failure to pay was willful and wanton and that “without coercive measures

[Father] will not obey the Court’s order as it pertains to consistent payments of weekly

child support.” Appellant’s App. p. 44.

       The trial court found Father in contempt of court for his failure to pay support

consistently from the time of the last contempt finding until the May 25, 2012 hearing

and ordered Father to serve thirty days in the Hamilton County Jail “to impress upon

[him] the importance of paying consistent weekly child support.” Id. The trial court also

ordered Father to post a $6070 bond “to take care of [Father’s] support obligations while

he is ramping up his new business.” Tr. p. 173.

       Father contends that the trial court erred by finding him in contempt and ordering

him incarcerated because, among other things, Father presented evidence that he had

worked a second job, moved into a cheaper apartment, sold some of his assets, and was

considering filing bankruptcy. Appellant’s Br. p. 19. In other words, Father asks us to

reweigh the evidence regarding his financial ability to pay child support as ordered. This

we will not do. Moore v. Liggins, 685 N.E.2d 57, 65 (Ind. Ct. App. 1997). Sufficient

evidence existed to support the trial court’s contempt finding, and we will not set it aside.

       Father also fails to persuade us that the trial court erred by failing to allow him to

purge his contempt via the support payments he made between the May 25, 2012 hearing

and the trial court’s pronouncement of its decision on June 14, 2012. In Marks v.

Tolliver, this Court emphasized that “the primary purpose of a civil contempt proceeding

                                             25
is not to punish the contemnor but to coerce action for the benefit of the aggrieved party”

before reversing an order that called for a father’s incarceration at any future time that his

child support payments fell behind without an inquiry into his ability to pay at that time.

839 N.E.2d 703, 707-08 (Ind. Ct. App. 2005). The Marks Panel also stated, “[O]ne who

is held in civil contempt for failing to pay support should be ordered to pay the total

arrearage and given an opportunity to purge himself or herself of contempt by paying the

amount owed.” Id. at 707.

       Although we acknowledge the policy rationale behind the above-quoted language,

we conclude that the present case is sufficiently distinguishable from Marks to warrant a

deviation from its strict application. Unlike in Marks, the trial court here did not order

Father’s incarceration at some unknown time in the future without inquiry into his ability

to pay at that time. Rather, extensive evidence was presented by both sides regarding

Father’s ability to pay, and the trial court found that Father had willfully disobeyed the

support order. Moreover, the trial court specifically stated that the purpose of its order

was to coerce future compliance from Father even though at the time of the order Father

was current on his support obligation.

       Thus, it is apparent that Father was afforded numerous opportunities over a period

of several years to strictly comply with the child support order, and he was repeatedly

warned that his failure to do so could result in incarceration. Appellant’s App. p. 41-42,

85. Yet despite multiple findings of contempt, Father has never suffered any adverse

consequences. Id. Rather, Father has continued his pattern of accumulating arrearages

                                             26
on his child support obligation. Id. at 42, 80-81. We have held that “[t]he regularity and

continuity of court decreed support payments are as important as the overall dollar

amount of those payments.” Matson v. Matson, 569 N.E.2d 732, 733 (Ind. Ct. App.

1991). For all these reasons, we find no error with the trial court’s decision not to allow

Father to once again avoid incarceration for his contempt.7

        Father next contends that the trial court erred by ordering him to post a bond that

required him to pre-pay six months of future support. Father alleges that “[p]anels of this

court have consistently found that prospective payments . . . are considered gratuities and

have long held that ‘child support payments cannot be applied prospectively to support

not yet due at the time of the overpayment.’” Appellant’s Br. p. 21 (quoting Matson, 569

N.E.2d at 733).

        Father’s argument fails to take into account Indiana Code sections 31-16-6-5 and

31-16-8-3, which specifically state that a trial court entering or modifying an order for

child support “may provide . . . for such security, bond, or other guarantee that is

satisfactory to the court to secure the obligation to make support payments.” These

statutes allow for trial courts to be creative in fashioning guarantees of future support

where it appears that a parent may not voluntarily pay support as ordered. See Griswold

7
  The State concedes that because Father was not provided with a written rule to show cause and the
hearing at which Father was incarcerated was a compliance hearing rather than a contempt hearing, “[t]he
unorthodox procedure adopted by the trial court did not clearly insure that [Father] received due process.”
While these procedures are generally required before a trial court can hold a person in indirect contempt,
here we believe that strict compliance with these procedures was unnecessary in this case because Father
had actual knowledge of the contempt accusations against him and what could happen if he failed to
strictly comply with the support order. See In re Paternity of J.T.I., 875 N.E.2d 447, 450 (Ind. Ct. App.
2007).
                                                    27
v. Savage, 569 N.E.2d 970, 972-73 (Ind. Ct. App. 1991) (upholding a trial court’s order

requiring a parent who often fell behind on his support obligation to deposit $37,500

received from an inheritance into a trust account guaranteeing the payment of future

support, college expenses, and medical expenses until the child’s expected emancipation

at the age of twenty-one). As such, we find no error with the trial court’s requirement

that Father post a $6070 bond to guarantee that J.B.J. received support while Father was

growing his new sales territory.

                                    IV. Attorney Fees

       Finally, Father requests attorney fees. However, Father fails to support his request

with cogent argument or any citations to legal authority. Accordingly, Father has waived

this request. See Rendon v. Rendon, 692 N.E.2d 889, 898 n.7 (Ind. Ct. App. 1998)

(finding that a party waived her challenge to an award of attorney fees when she failed to

present a cogent argument or authority in support of her argument on appeal).

       The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.

                                            28


                    IN THE COURT OF APPEALS OF TENNESSEE,
                                 AT JACKSON

          ____________________________________________________________

                                        )
LISA LYNN NORTON,                       )       Madison County Chancery Court
                                        )       No. 40241
   Plaintiff/Appellant,                 )
                                        )       C.A. No. W1999-02176-COA-R3-CV
VS.                                     )
                                        )
MAX LANE NORTON,                        )
                                        )
                                                      FILED
   Defendant/Appellee.                  )
                                        )                    January 10, 2000
______________________________________________________________________________
                                                            Cecil Crowson, Jr.
From the Chancery Court of Madison County at Jackson.     Appellate Court Clerk
Honorable Joe C. Morris, Chancellor

Kathryn M. Tucker, KIZER, BONDS & HUGHES, Milan, Tennessee
Attorney for Plaintiff/Appellant.

Joe H. Byrd, Jr., Jackson, Tennessee
Attorney for Defendant/Appellee.

OPINION FILED:

VACATED AND REMANDED

                                       FARMER, J.

HIGHERS, J.: (Concurs)
LILLARD, J.: (Concurs)
               Plaintiff Lisa Lynn Norton (Mother) appeals the trial court’s judgment increasing the

child support obligation of Defendant/Appellee Max Lane Norton (Father) from $400 per month to

$1200 per month, ordering the Father to contribute $300 per month to an educational trust fund for

the parties’ minor child, and ordering the Father to pay $2000 of the Mother’s attorney’s fees. In

considering the Mother’s petition to modify child support, the trial court found that the Father’s

financial condition had changed very little since 1988 when the parties entered into a Marital

Dissolution Agreement. Nevertheless, based largely upon the Father’s agreement to pay more child

support, the trial court increased the Father’s monthly child support obligation to $1200. We vacate

the trial court’s judgment based upon our conclusion that the court used the wrong test for

determining whether the Mother was entitled to the relief sought in her modification petition.

               When the parties were divorced in February 1988, the Father agreed to pay $400 per

month to the Mother for the support of the parties’ ten-month-old son. In January 1998, almost ten

years later, the Mother instituted the present proceedings when she filed a petition to modify the

Father’s child support obligation. In support of her petition, the Mother alleged “that a significant

variance has occurred in the income of Father such that child support should be increased consistent

with the guidelines now in effect in the State of Tennessee.”

               At trial, much of the evidence focused on the Father’s income from self-employment

for the tax years 1996 and 1997. In 1997, the Father reported $56,702 in gross income. The Father’s

laundry and car wash business generated gross receipts of $177,202. After taking various business

deductions, however, including $93,478 for depreciation, $40,775 for interest payments, and $3503

for car expenses, the Father reported a net business loss of $73,031. The Father also earned income

from the rental of commercial and residential real estate. The Father reported gross rental receipts

of $271,693. After taking various deductions, however, including $38,509 for depreciation, $95,891

for interest payments, and $3503 for car expenses, the Father reported a net rental income of

$71,787. The remainder of the Father’s income included $12,847 from insurance sales, $903 in

interest, and $21,074 in capital gains.1

       1
         At trial, the Father conceded that, for purposes of these proceedings, this capital gain
should be included in the gross income used to determine his child support obligation. We note
that the Child Support Guidelines specifically define gross income to include capital gains. See
Tenn. Comp. R. & Regs. 1240-2-4-.03(3)(a) (as revised in 1994); see also Smith v. Smith, No.
               In 1996, the Father reported a gross income of only $5,192. That year, the Father’s

laundry and car wash business grossed $180,982 in receipts. After deductions, including $114,163

for depreciation, $19,662 for interest payments, and $3977 for car expenses, the Father reported a

net business loss of $54,940. The Father reported gross rental receipts of $245,687 and a net rental

income of $58,064. Again, the Father took substantial business deductions, including $36,538 for

depreciation, $93,270 for interest payments, and $3820 for car expenses. The Father also earned

$1546 in interest in 1996.

               The Father testified that, in addition to his $400 monthly child support obligation, he

currently was paying $400 per month in private school tuition so that the parties’ son could attend

the University School of Jackson (USJ). The Father offered to pay $800 per month in child support,

plus $200 per month for one-half of the son’s USJ tuition, for a total monthly obligation of $1000.

The Father also testified that he had established a college fund for his son and that he contributed

$100 per month to this fund. The Father took the position, however, that the Mother was not entitled

to an additional increase in child support payments because the Father’s financial circumstances had

not changed substantially since the parties’ divorce in 1988.

               Since the parties’ divorce, the Father had remarried. In addition to the parties’ son,

the Father had two younger sons by his second marriage. The Father acknowledged that, in an

October 1997 financial statement, he reported a net worth of $4.1 million, which included assets of

$5.7 million and liabilities of $1.6 million. The Father also acknowledged that he made significant

monthly expenditures to support his current lifestyle, including a house payment of between $1700

and $1800, car payments totaling about $1550, and a boat payment totaling about $750 per month.

The Father recently installed an in-ground swimming pool at his home at a cost of $18,275, and he

took all three of his sons on a trip to Disney World.

               As previously indicated, at the trial’s conclusion, the trial court entered a judgment

increasing the Father’s monthly child support obligation from $400 to $1200, ordering the Father

01A01-9705-CH-00216, 1997 WL 672646, *3 (Tenn. Ct. App. Oct. 29, 1997) (no perm. app.
filed) (observing that “the guidelines do not permit the trial court to ignore capital gains in
calculating child support”).
to contribute $300 per month to an educational trust fund for the parties’ son, and ordering the Father

to pay $2000 of the Mother’s attorney’s fees. The trial court’s order indicated that $200 of the

Father’s $1200 monthly child support obligation was to pay for one-half of the son’s private school

tuition. In explaining how it arrived at the $1200 support figure, the trial court stated that

                       [t]he [Father] agreed to increase his child support, and has, in
               fact, increased his support to eight hundred dollars ($800.00) per
               month by paying the child’s private school tuition. The [Father]
               further agreed to pay an additional two hundred dollars ($200.00) per
               month and one-half (½) of the private school tuition.

Although the trial court increased the Father’s monthly child support obligation based largely upon

the Father’s agreement to pay more support, the court specifically found that the Father’s financial

condition had “changed very little since the parties entered into a Marital Dissolution Agreement”

in 1988.

               On appeal, the Mother presents the following issues for this court’s review:

               I.      Whether the trial court erred in finding that a significant
                       variance did not exist.

               II.     Whether the trial court erred in its calculation of [the
                       Father’s] net income by allowing deductions from gross
                       income for depreciation, excessive business expenses,
                       business losses, and property enhancement debt.

               III.    Whether the trial court erred in ordering an increase in the
                       educational trust fund when child support payments were
                       inadequate.

               IV.     Did the trial court err in allowing tuition payments as child
                       support?

               V.      Is [the Mother] entitled to an award for reasonable attorney’s
                       fees and expenses, both at the trial level and on this appeal?

                                 I. The Significant Variance Test

               In 1994, the General Assembly changed the statutory standard for modifying child

support orders. See generally Turner v. Turner, 919 S.W.2d 340, 342-43 (Tenn. Ct. App. 1995).

Prior to July 1, 1994, the trial court could decree an increase or decrease of an existing child support
award “only upon a showing of a substantial and material change of circumstances.” T.C.A.

§ 36-5-101(a)(1) (1991). Effective July 1, 1994, the legislature changed the statutory standard to

provide that the trial court shall decree an increase or decrease of an existing child support award

“when there is found to be a significant variance, as defined in the child support guidelines

established by subsection (e),2 between the guidelines and the amount of support currently ordered.”

T.C.A. § 36-5-101(a)(1) (1996) (footnote added).3 As promulgated by the Department of Human

Services, the Child Support Guidelines define a significant variance as fifteen percent (15%) or

fifteen dollars ($15.00), depending upon the amount of the current support order. See Tenn. Comp.

R. & Regs. 1240-2-4-.02(3) (as revised in 1994). A significant variance shall be “at least 15% if the

current support is one hundred dollars ($100.00) or greater per month and at least fifteen

dollars ($15.00) if the current support is less than $100.00 per month.” Id.

                 Under this standard, if the trial court finds a significant variance between the

guidelines support amount and the current support amount, the court generally is required to modify

the existing child support award by ordering the obligor to pay the guidelines amount. Once the trial

court determines the guidelines amount, which is based upon the obligor’s salary, a presumption

arises that this amount is the correct amount to be awarded.             Tenn. Comp. R. & Regs.

1240-2-4-.02(7) (as revised in 1994). If the evidence sufficiently rebuts this presumption, the trial

court may decline to award the guidelines amount. Id. In that event, however, “the court must make

a written or specific finding that the application of the . . . guidelines would be unjust or

inappropriate in that particular case.” Id. Moreover, the court’s findings “must state the amount that

would have been required under the guidelines and include a justification for deviation from the

guidelines which takes into consideration the best interest of the child.” Id. The trial court also may

       2
           T.C.A. § 36-5-101(e) (1996).
       3
         To a large extent, the “significant variance” test has replaced the “material change of
circumstances” test. See Turner v. Turner, 919 S.W.2d 340, 342-43 (Tenn. Ct. App. 1995).
Nevertheless, the amended statute appears to recognize that a material change of circumstances
still may justify a modification of an existing child support award. In addition to the significant
variance test, the amended statute permits the trial court to modify an existing child support
award if necessary “to provide for the child’s health care needs.” T.C.A. § 36-5-101(a)(1)
(1996). Moreover, we can envision other circumstances that might require a modification of
child support. For example, the Child Support Guidelines recognize that an upward adjustment
of support may be justified by other factors, such as extraordinary educational expenses or less
than average overnight visitation being exercised by the obligor parent. Tenn. Comp. R. & Regs.
1240-2-4-.02(5) (as revised in 1994).
decline to modify the amount, despite the existence of a significant variance, if the variance “resulted

from a previously court-ordered deviation from the guidelines and the circumstances which caused

the deviation have not changed.” T.C.A. § 36-5-101(a)(1) (1996).

               In the present case, we conclude that the trial court erred in failing to apply the

significant variance test. In its order, the trial court found that the Father’s financial condition had

changed very little since the parties entered into their Marital Dissolution Agreement (MDA). This

finding suggests that the trial court was applying the “material change of circumstances” test rather

than the “significant variance” test. Although the trial court modified the Father’s child support

obligation, the court apparently did so based largely upon the Father’s agreement to increase his

obligation.

                We further conclude that, if the trial court had properly applied the significant

variance test, the court would have found that a significant variance existed between the guidelines

amount and the Father’s current support obligation. At the time of the modification hearing, the

Father’s support obligation was only $400 per month per the parties’ MDA. As explained in the

following section of this opinion, we have determined that the Father’s gross monthly income is

$14,358. Under the guidelines table in effect at the time of the modification hearing, this gross

monthly income figure translated into a monthly child support obligation that was approximately five

times the amount of the Father’s $400 support obligation. See Tenn. Comp. R. & Regs. 1240-2-4

(Table) (as revised in 1998). Inasmuch as the variance between the guidelines amount and the

Father’s $400 support obligation exceeded fifteen percent (15%), the trial court should have granted

the Mother’s modification petition by ordering the Father to pay at least the guidelines amount.

Accordingly, we vacate the trial court’s judgment and remand this case for the trial court to

determine the Father’s modified child support obligation under the guidelines using the gross

monthly income figure of $14,358.

                In urging this court to affirm the trial court’s judgment in its entirety, the Father points

out that the Mother was represented by competent counsel when she executed the MDA that settled

all of the issues in the parties’ divorce, including the amount of child support the Father was

obligated to pay. We note, however, that, as a general rule, a custodial parent may not waive her
minor child’s right of support. See Cagle v. Davis, 1989 WL 44921, at *3 (Tenn. Ct. App. May 5,

1989), perm. app. denied (Tenn. Aug. 7, 1989); see also Vickers v. Scinta, No.

01A01-9507-CH-00281, 1995 WL 656881, at *2 (Tenn. Ct. App. Nov. 9, 1995) (no perm. app.

filed); Barzizza v. Barzizza, No. 02A01-9110-CV-00246, 1992 WL 139862, at *6 (Tenn. Ct. App.

June 23, 1992) (no perm. app. filed); Pera v. Peterson, 1990 WL 200582, at *2 (Tenn. Ct. App.

Dec. 14, 1990) (no perm. app. filed); State ex rel. Woody v. Morris, 1990 WL 2867, at *2 (Tenn.

Ct. App. Jan. 19, 1990) (no perm. app. filed). Moreover, we observe that, even if the Mother’s

execution of the MDA could be construed as such a waiver, it did not meet the requirements of

Tennessee Code Annotated section 36-5-101(h) (Supp. 1998).4 See Dwight v. Dwight, 936 S.W.2d

945, 948 (Tenn. Ct. App. 1996).

                          II. Deductions from Father’s Gross Income

               The Child Support Guidelines permit the obligor, in computing income from self-

employment, to deduct reasonable expenses necessary to produce such income. See Tenn. Comp.

R. & Regs. 1240-2-4-.03(3)(a) (as revised in 1994) (providing that “[i]ncome from self-employment

includes income from business operations and rental properties, etc., less reasonable expenses

necessary to produce such income”). When a business deduction is challenged, the obligor has the

burden of showing that the challenged deduction was a reasonable expense necessary to produce his

income. See Howard v. Howard, No. 03A01-9811-CV-00374, 1999 WL 427596, at *2 (Tenn. Ct.

App. June 25, 1999) (no perm. app. filed); accord Ely v. Ely, No. 03A01-9707-CH-00255, 1998 WL

2510, at *4 (Tenn. Ct. App. Jan. 6, 1998), perm. app. denied (Tenn. May 26, 1998).

               The Child Support Guidelines require the trial court, in determining the obligor’s

income from self-employment, to disallow deductions for “[d]epreciation, home offices, excessive

promotional, excessive travel, excessive car expenses, or excessive personal expenses” because,

       4
         Section 36-5-101(h) provides that “[n]othing in this section shall be construed to prevent
the affirmation, ratification and incorporation in a decree of an agreement between the parties as
to support and maintenance of a party or as to child support.” T.C.A. § 36-5-101(h) (Supp.
1998). In executing such an agreement, however, “the parties must affirmatively acknowledge
that no action by the parties will be effective to reduce child support after the due date of each
payment” and, further, “that they understand that court approval must be obtained before child
support can be reduced, unless such payments are automatically reduced or terminated under the
terms of the agreement.” Id.
under the guidelines, these expenses are not considered reasonable. Tenn. Comp. R. & Regs.

1240-2-4-.03(3)(a) (as revised in 1994). Citing this language of the guidelines, the Mother contends

that, in computing the Father’s gross income, the trial court should have disallowed the Father’s

deductions for “excessive” business expenses. During the modification hearing below, the only

deductions challenged by the Mother were deductions for car expenses, interest payments, and

depreciation. Accordingly, we will limit our review to the specific deductions challenged by the

Mother below. See Barnhill v. Barnhill, 826 S.W.2d 443, 458 (Tenn. Ct. App. 1991) (holding that

appellant waives issue for purposes of appellate review by failing to raise such issue at trial court

level).

               At trial, the evidence showed that the Father used four different vehicles for business

purposes, a 1998 GMC extended cab truck, a 1996 Ford Ranger, a 1998 Porsche Boxster, and a 1998

Ford Expedition. The Father’s present wife drove the 1998 Ford Expedition, and the Father drove

the other three vehicles. The Father explained that he used the 1996 Ford Ranger and the 1998 GMC

extended cab truck in his commercial real estate rental business and his laundry and car wash

business. The Father also used the Porsche for business purposes, and he explained that,

                       [b]eing that I’ve got other business interests, there are times
               when I need to be in a car instead of a truck. So I wear different hats
               and different – I mean, it just depends on what I’m having to do.

The Father’s CPA defended this practice, and he pointed out that he only allocated sixty

percent (60%) of the Father’s car expenses as business expenses whereas many of the CPA’s clients

insisted on deducting between seventy-five percent (75%) and ninety percent (90%) of their car

expenses. In 1997 the Father deducted a total of $7006 in car expenses, and in 1996 he deducted

$7797.

               In light of the foregoing evidence, we conclude that the trial court was not required

to disallow the deductions for car expenses claimed by the Father on his tax returns. At trial, the

Mother presented the testimony of a CPA who questioned why the Father needed to use three

vehicles for a business that had no employees. Other than the question raised by the Mother’s CPA,
however, the record contains no evidence that the Father’s use of several vehicles in his businesses

was unreasonable or that the car expenses he deducted were excessive. Inasmuch as the only

evidence on this issue consisted of the unrebutted explanations of the Father and his CPA, we

conclude that the Father met his burden of proving that the challenged expenses were reasonable.

               We likewise conclude that the trial court was not required to disallow the Father’s

deductions for interest payments made to banks. In 1996 the Father deducted interest payments

totaling $112,932, and in 1997 he deducted $136,666. On appeal, the Mother contends that these

deductions should be disallowed for the following reason:

               The allowance or a deduction of investment interest would benefit the
               obligor parent now by reducing his net income for the purposes of
               calculating support while building future wealth for the obligor that
               will become a debt-free asset when he is no longer paying support.
               If [the Father] is allowed to deduct his investment interest it will
               significantly reduce his obligation to his child and continue to build
               future wealth and assets for [the Father] that may never benefit the
               minor child.

In support of this argument, the Mother cites Kimble v. Kimble, No. 02A01-9503-CV-00049, 1996

WL 445272 (Tenn. Ct. App. Aug. 8, 1996) (no perm. app. filed).

               In Kimble, we were faced with the issue of whether a capital expenditure constituted

a reasonable and necessary expense that was deductible from the obligor’s gross income from self-

employment. Kimble, 1996 WL 445272, at *2-*5. There, the husband purchased $10,313 worth

of office equipment and deducted this expense from his gross income. Id., at *2. On appeal, the

wife contended that the trial court should have disallowed the deduction for this capital expenditure,

and she pointed out that the husband also took a depreciation deduction for the same office

equipment. Id. In remanding the case for the trial court to reconsider this issue, we observed that,

inasmuch as “our own state legislature has not seen fit to either expressly exclude or authorize a

deduction for capital expenditures, we believe it within the sound discretion of the trial court to

determine when and if expenditures of this type are ‘reasonable.’” Id., at *5. Citing Kamm v.

Kamm, 616 N.E.2d 900 (Ohio 1993), we listed the factors for the trial court to consider in

determining whether the deduction for capital expenditures was reasonable. Kimble, 1996 WL
445272, at *3, *5.5

                 We believe that the Mother’s reliance upon the Kimble decision is misplaced. Rather

than challenging deductions for certain capital expenditures, the Mother is challenging deductions

for interest payments that the Father made to various banks relative to capital expenditures. In our

view, interest payments should be distinguished from their associated capital expenditures. Interest

is “the compensation allowed by law or fixed by the parties for the use or forbearance or detention

of money.” Black’s Law Dictionary 729 (5th ed. 1979); see also Pacific E. Corp. v. Gulf Life

Holding Co., 902 S.W.2d 946, 960 (Tenn. Ct. App. 1995). In contrast, a capital expenditure is the

acquisition cost of a capital asset. Kimble, 1996 WL 445272, at *3. We are not convinced that the

argument made in Kimble relative to capital expenditures can be applied to the interest paid on

money borrowed to acquire such capital.

                 Courts from other jurisdictions also have distinguished between capital expenditures

and their associated interest payments in computing a child support obligor’s gross income from self-

employment. These courts recognize that trial courts, in their discretion, may disallow deductions

for capital expenditures and principal payments because such expenditures and payments contribute

to the obligor’s net worth. In contrast, interest expenses generally constitute reasonable and

necessary business expenses because they represent out-of-pocket expenses that are never recouped

by the obligor.6 See Zakrowski v. Zakrowski, 594 N.E.2d 821, 824 (Ind. Ct. App. 1992); Douglas-

       5
           These factors included

                 (1) the cost of the capital asset compared to the parent obligor’s
                 gross income; (2) the cost of the capital asset compared to the net
                 worth of the obligor’s business; (3) the existence of a past pattern
                 of acquisition of capital assets as deductions against gross income
                 for child support calculations; (4) the proximity in time of the
                 acquisition of the capital asset to the date of termination of the
                 child support obligation; (5) analysis of the necessity of the capital
                 asset to maintain or increase past or current levels of income as
                 opposed to unnecessary, punitive or overly aggressive expansion of
                 business; and (6) whether the asset is acquired from the current
                 year’s income or out of past year(s)’ savings.

Kimble, 1996 WL 445272, at *3.
       6
         An exception to this general rule may arise where the record contains proof that the
interest payments are unreasonable or unnecessary, such as “where a parent obtains unusually
short-term loans resulting in excessive short-time interest expenditures.” Zakrowski v.
Zakrowski, 594 N.E.2d 821, 824 (Ind. Ct. App. 1992). No such evidence appears in the present
Hill v. Hill, 1 S.W.3d 613, 617-18 (Mo. Ct. App. 1999); In re Marriage of Nikolaisen, 847 P.2d

287, 292 (Mont. 1993); Barham v. Barham, 487 S.E.2d 774, 778 (N.C. Ct. App. 1997), aff’d, 494

S.E.2d 763 (N.C. 1998); Lawrence v. Tise, 419 S.E.2d 176, 182 (N.C. Ct. App. 1992); Fleenor v.

Fleenor, ___ P.2d ___, 1999 WL 1125189, at *3-*5 (Wyo. 1999). In accordance with these

authorities, we hold that the trial court was not required to include the amount of these interest

payments in the Father’s gross income.

               On the other hand, we agree with the Mother’s contention that, in computing the

Father’s gross income for purposes of determining his presumptive child support obligation, the trial

court should not have allowed deductions for depreciation. The Child Support Guidelines expressly

provide that depreciation is not a reasonable expense. Tenn. Comp. R. & Regs. 1240-2-4-.03(3)(a)

(as revised in 1994). In computing the Father’s gross income, therefore, the trial court was required

to disallow any deductions for depreciation. See Ely v. Ely, No. 03A01-9707-CH-00255, 1998 WL

2510, at *4 (Tenn. Ct. App. Jan. 6, 1998), perm. app. denied (Tenn. May 26, 1998); Burchfield v.

Nave, No. 03A01-9308-JV-00271, 1994 WL 13374, at *3-*4 (Tenn. Ct. App. Jan. 21, 1994), perm.

app. denied (Tenn. May 9, 1994); accord Sandusky v. Sandusky, No. 01A01-9808-CH-00416, 1999

WL 734531, at *5 (Tenn. Ct. App. Sept. 22, 1999) (no perm. app. filed); McGaffic v. McGaffic, No.

03A01-9707-CV-00286, 1997 WL 772899, at *4 n.1 (Tenn. Ct. App. Dec. 9, 1997) (no perm. app.

filed); Hall v. Hall, No. 03A01-9701-GS-00030, 1997 WL 404258, at *2 (Tenn. Ct. App. July 21,

1997) (no perm. app. filed); Craft v. Craft, No. 01A01-9609-CH-00417, 1997 WL 122809, at *2-*3

(Tenn. Ct. App. Mar. 19, 1997) (no perm. app. filed); Kimble v. Kimble, No.

02A01-9503-CV-00049, 1996 WL 445272, at *2 (Tenn. Ct. App. Aug. 8, 1996) (no perm. app.

filed).

               At trial, the evidence of the Father’s income from self-employment focused on the

tax years 1996 and 1997. In 1996, the Father reported a gross income of $5,192. In calculating this

amount, however, the Father’s accountant deducted depreciation expenses totaling $150,701.

Similarly, in 1997 the Father reported a gross income of $56,702. In calculating this amount, the

Father’s accountant deducted depreciation expenses totaling $131,987. If the deductions for

case.
depreciation are disallowed, the Father’s gross income for 1996 was actually $155,893, and his gross

income for 1997 was $188,689, for an average annual income of $172,291.7 Thus, the trial court

should have used a gross monthly income figure of $14,358 to compute the amount of the Father’s

child support obligation.

                            III. Payments to Educational Trust Fund

               In its judgment, the trial court ordered the Father to pay $300 per month toward an

educational trust fund that he had established for the parties’ minor son. The ordered amount was

$200 more than the $100 monthly obligation voluntarily assumed by the Father. On appeal, the

Mother contends that the trial court erred in ordering the Father to increase his payments to the

educational trust fund because the guidelines provision permitting the establishment of such a fund

applies only in situations where the obligor’s net income exceeds $10,000.

               We agree. The Child Support Guidelines contain the following provision relative to

requiring an obligor parent to make payments to an educational trust fund:

               The court must consider all net income of the obligor as defined
               according to 1240-2-4-.03 of this rule. The court must order child
               support based upon the appropriate percentage to the custodial parent
               up to a net $10,000 per month of the obligor’s income. When the net
               income of the obligor exceeds $10,000 per month, the court may
               consider a downward deviation from the guidelines if the obligor
               demonstrates that the percentage applied to the excess of the net
               income above $10,000 a month exceeds a reasonable amount of child
               support based upon the best interest of the child and the circumstance
               of the parties. The court may require that sums paid above the
               percentage applied to the net income above $10,000 be placed in an

       7
         The guidelines require the trial court to establish an initial support award by using the
obligor’s average income over the previous two years. Tenn. Comp. R. & Regs.
1240-2-4-.04(1)(e) (as revised in 1997). In the present case, the trial court was modifying, rather
than establishing, an initial support award. In our view, however, using the Father’s average
gross income for the previous two years is appropriate in this case because the present action
appears to be the first time that the Father’s child support obligation has been established under
the guidelines and, further, because the Father’s income from self-employment varies from year
to year. See Stacey v. Stacey, No. 02A01-9802-CV-00050, 1999 WL 1097975, at *4 (Tenn. Ct.
App. Oct. 6, 1999) (no perm. app. filed).
               educational or other trust fund for the benefit of the child.

Tenn. Comp. R. & Regs. 1240-2-4-.04(3) (as revised in 1997) (emphasis added).

               Citing this provision, this court recently held that “the guidelines provide only that

the portion of child support attributable to [the obligor’s] net income over $10,000 per month may

be paid into an educational trust.” Barnett v. Barnett, No. 03A01-9709-CH-00414, 1999 WL 64269,

at *5 (Tenn. Ct. App. Feb. 1, 1999), perm. app. granted (Tenn. June 21, 1999). Thus, the

guidelines’ provision relating to educational trust funds does not apply unless the obligor’s net

monthly income exceeds $10,000.

               In the present case, we have determined that the Father’s gross monthly income is

$14,358. Under the guidelines table in effect at the time of the modification hearing, the Father’s

gross monthly income translated into a net income of less than $10,000 per month. See Tenn. Comp.

R. & Regs. 1240-2-4 (Table) (as revised in 1998). Accordingly, we conclude that the guidelines

provision relating to educational trust funds did not apply in this case and that the trial court erred

in ordering the Father to pay $300 per month toward such a fund.

                               IV. Private School Tuition Payments

               We likewise agree with the Mother’s argument that any private school tuition

payments made by the Father should not reduce the amount he is ordered to pay under the Child

Support Guidelines. Inasmuch as the percentage amounts contained therein are minimums only, the

Child Support Guidelines permit the trial court to increase a child support award in cases where the

minor child has extraordinary educational expenses or extraordinary medical expenses that are not

covered by insurance. In that event, the guidelines provide that extraordinary educational or medical

expenses “shall be added” to the guidelines amount. Tenn. Comp. R. & Regs. 1240-2-4-.04(1)(c)

(as revised in 1997).

               Under the guidelines, the payment of private school tuition may justify an upward

deviation from the guidelines amount. This court has held, however, that payments for private
school tuition should not “be incorporated into the percentage of the obligor’s income paid as

support under the Guidelines.” Dwight v. Dwight, 936 S.W.2d 945, 950 n.2 (Tenn. Ct. App. 1996).

               At trial, the Father testified that, prior to their son’s fifth grade year, the parties

discussed sending him to private school. During this conversation, the Father expressed his opinion

that the son “needs to go to USJ,” referring to the University School of Jackson. When the Mother

indicated that she could not afford to send the son to USJ, the Father agreed to pay the son’s private

school tuition of approximately $400 per month. At least one of the Father’s children from his

second marriage also attended USJ.

               Under these circumstances, we conclude that the trial court should have added an

appropriate amount to the guidelines percentage to account for the extraordinary educational expense

of the parties’ son. See Barnett v. Barnett, No. 03A01-9709-CH-00414, 1999 WL 64269, at *5

(Tenn. Ct. App. Feb. 1, 1999), perm. app. granted (Tenn. June 21, 1999). Accordingly, upon

remand, the trial court shall order the Father to pay, in addition to the guidelines amount, the son’s

private school tuition at USJ.

                                         V. Attorney’s Fees

               At the trial’s conclusion, the Mother’s counsel submitted a bill indicating that the

Mother had incurred $13,729.11 in attorney’s fees in connection with this modification proceeding.

In its judgment, the trial court ordered the Father to pay $2000 to the Mother “to be applied to her

legal expenses.” On appeal, the Mother contends that she is entitled to an additional award of

attorney’s fees, both at the trial level and on appeal.

               The Mother’s request for attorney’s fees was governed by Tennessee Code Annotated

section 36-5-103(c), which provides that

                      [t]he plaintiff spouse may recover from the defendant spouse,
               and the spouse or other person to whom the custody of the child, or
               children, is awarded may recover from the other spouse reasonable
               attorney fees incurred in enforcing any decree for alimony and/or
               child support, or in regard to any suit or action concerning the
                adjudication of the custody or the change of custody of any child, or
                children, of the parties, both upon the original divorce hearing and at
                any subsequent hearing, which fees may be fixed and allowed by the
                court, before whom such action or proceeding is pending, in the
                discretion of such court.

T.C.A. § 36-5-103(c) (Supp. 1998).

                The language of this statute is sufficiently broad to authorize an award of attorney’s

fees in child support modification proceedings. See Ford v. Ford, No. 01A01-9611-CV-00536,

1998 WL 730201, at *6 (Tenn. Ct. App. Oct. 21, 1998) (no perm. app. filed). When the custodial

parent successfully pursues a petition to modify child support, the trial court generally allows the

custodial parent to recover her legal expenses if these expenses are reasonable and appropriate. Id.

This interpretation of the statute is consistent with prior decisions of this court, which recognize “the

right of the custodial parent to bring suit to enforce the children’s right of support and to recover

reasonable attorney’s fees from the obligor spouse.” Silverstein v. Silverstein, 1987 WL 18376, at

*5 (Tenn. Ct. App. Oct. 14, 1987) (citing Graham v. Graham, 204 S.W. 987, 989 (Tenn. 1918)),

perm. app. denied (Tenn. Feb. 1, 1988).

                Under this statute, however, the prevailing party is not necessarily entitled to an award

of attorney’s fees. Deas v. Deas, 774 S.W.2d 167, 170 (Tenn. 1989). Rather, the language of the

statute indicates that such an award lies within the discretion of the trial court. T.C.A. § 36-5-103(c)

(Supp. 1998).

                In the present case, we conclude that the trial court did not abuse its discretion in

awarding the Mother only a portion of her attorney’s fees. We note that the Mother’s counsel did

not attempt to prove these fees either through the testimony of her client or by affidavit. Instead,

counsel merely submitted her bill as an exhibit at the trial’s conclusion. Moreover, although the

Mother contended that the large attorney’s fee was necessitated by the complicated nature of the

Father’s business practices, we believe that the trial court still may have questioned the

reasonableness of the $13,729.11 fee requested in this case. In light of the sparsity of the Mother’s

proof on this issue, we cannot say that the trial court abused its discretion in awarding the Mother

only $2000 in attorney’s fees.
               We agree, however, with the Mother’s contention that she is entitled to an additional

attorney’s fee award on appeal. Accordingly, on remand, the trial court shall award the Mother her

reasonable attorney’s fees incurred on this appeal.

               The trial court’s judgment is vacated, and this cause is remanded for the court (1) to

determine the Father’s child support obligation using the Father’s average gross monthly income of

$14,358, (2) to order the Father to pay the son’s private school tuition, (3) to award the Mother her

reasonable attorney’s fees incurred on this appeal, and for any other necessary proceedings consistent

with this opinion. Costs of this appeal are taxed to Defendant/Appellee Max Lane Norton, for which

execution may issue if necessary.

                                                      ___________________________________
                                                      FARMER, J.

______________________________
HIGHERS, J.

______________________________
LILLARD, J.


                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                              No. 07-4722

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAVONE A. JOHNSON,

                Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:06-cr-00120-RAJ)

Submitted:   March 31, 2008                 Decided:   April 10, 2008

Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Brett D. Lucas, GABRIEL & ASSOCIATES, P.C., Virginia Beach,
Virginia, for Appellant. Chuck Rosenberg, United States Attorney,
Robert J. Krask, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Javone A. Johnson was convicted in a bench trial for bank

fraud, 18 U.S.C. § 1344 (2000) (two counts), use of false social

security number, 42 U.S.C. § 408(a)(7)(B) (2000) (five counts), and

aggravated identity theft, 18 U.S.C. § 1028A(a)(1) (2000).          He was

sentenced to fifty-nine months of imprisonment.            On appeal, he

raises the following claims: (1) the district court erred in

denying his motion for new counsel and a continuance; (2) he was

convicted   on   multiplicitous    counts;   (3)   insufficient   evidence

supports his convictions for use of false social security number;

(4) the district court abused its discretion in admitting certain

hearsay evidence at trial and sentencing; and (5) the district

court erred in imposing a two-level enhancement to his sentence for

obstruction of justice.    Finding no reversible error, we affirm.

            Johnson first argues on appeal that the trial court

abused its discretion in denying his motion to substitute current

counsel and in refusing to continue the case.        The Sixth Amendment

affords a criminal defendant the counsel of his choosing; however,

that right is not absolute.       United States v. Mullen, 32 F.3d 891,

895 (4th Cir. 1994); Sampley v. Attorney Gen. of North Carolina,

786 F.2d 610, 613 (4th Cir. 1986).         This court’s review is for an

abuse of discretion.     United States v. Gallop, 838 F.2d 105, 108

(4th Cir. 1988).     To determine whether the district court abused

its discretion in denying the defendant’s motion for a continuance

                                   - 2 -
so that he could substitute new counsel, this court considers: (1)

the timeliness of the motion; (2) the adequacy of the district

court’s inquiry into the defendant’s complaint about counsel; and

(3) whether the defendant and counsel have experienced a “total

lack of communication preventing an adequate defense.”      Mullen, 32

F.3d at 895 (citing Gallop, 838 F.2d at 108).       These factors must

be   weighed   against   the   court’s   interest    in   the   orderly

administration of justice.     Mullen, 32 F.3d at 895.    We find that,

based on the court’s thorough inquiry and due consideration of the

factors at the hearing, there was no abuse of discretion in the

denial of new counsel and a continuance.

          Johnson next argues that certain convictions should be

dismissed on grounds of multiplicity.      An indictment charging a

single offense in several counts is multiplicitous, subjecting a

defendant to a risk of multiple sentences for a single offense in

violation of the Double Jeopardy Clause.       See United States v.

Goodine, 400 F.3d 202, 207 (4th Cir. 2005).      However, it is well

established that a defendant may be convicted of two separate

offenses arising from a single act if each charge requires proof of

a fact not essential to the other.        See Blockburger v. United

States, 284 U.S. 299 (1932).       We find that the district court

appropriately conducted the Blockburger analysis and concluded that

this argument is without merit.

                                 - 3 -
           Johnson     also   challenges    the   sufficiency    of   evidence

supporting his convictions for falsely representing his social

security number.      A defendant challenging the sufficiency of the

evidence faces a heavy burden.          United States v. Beidler, 110 F.3d

1064, 1067 (4th Cir. 1997). “[A]n appellate court’s reversal of a

conviction on grounds of insufficient evidence should be confined

to cases where the prosecution’s failure is clear.”             United States

v. Jones, 735 F.2d 785, 791 (4th Cir. 1984).              A verdict must be

upheld on appeal if there is substantial evidence in the record to

support it.    Glasser v. United States, 315 U.S. 60, 80 (1942).                 In

determining whether the evidence in the record is substantial, this

court views the evidence in the light most favorable to the

Government,    and    inquires   whether     there   is   evidence        that   a

reasonable finder of fact could accept as adequate and sufficient

to establish a defendant’s guilt beyond a reasonable doubt. United

States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).                    We

find sufficient evidence in the record to support the challenged

convictions.

           Johnson also asserts that the district court erred in

admitting certain hearsay evidence at trial and sentencing.                  The

district   court     has   discretion    generally   to   conduct     a    trial,

including the presentation of evidence, in whatever manner the

court deems appropriate, and the district court’s evidentiary

rulings are entitled to substantial deference and will not be

                                   - 4 -
reversed absent a clear abuse of discretion.            See United States v.

Moore, 27 F.3d 969, 974 (4th Cir. 1994).                We find no abuse of

discretion in the court’s challenged rulings.

            Johnson’s last argument on appeal is that the district

court erred in imposing a two-level enhancement for obstruction of

justice.    When reviewing the district court’s application of the

Sentencing Guidelines, this court reviews findings of fact for

clear error and questions of law de novo.          United States v. Green,

436 F.3d 449, 456 (4th Cir.), cert. denied, 547 U.S. 1156 (2006).

Here,    Johnson   proffered     altered    documents   in   support    of   his

defense.    We find no error in the court’s imposition of a two-level

enhancement for obstruction of justice.                 See U.S. Sentencing

Guidelines Manual § 3C1.1, comment. (n.4(c)) (2006) (listing as an

example the production of false, altered, or counterfeit documents

and     records    during   an    official    investigation      or    judicial

proceeding).

            Accordingly,     we    affirm     Johnson’s      convictions     and

sentence.      We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

                                                                       AFFIRMED

                                    - 5 -