author: ROBB, Chief Judge.

text:
    TWIN LAKES REGIONAL SEWER DISTRICT, Appellant-Plaintiff, v. Robert W. TEUMER and Paula K. Teumer, Appellee-Defendant.
    No. 91A04-1212-PL-638.
    Court of Appeals of Indiana.
    July 22, 2013.

      Donald J. Tribbett, Tribbett Law Office, Logansport, IN, Attorney for Appellant.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

Twin Lakes Regional Sewer District appeals the trial court’s judgment regarding appropriation of easements on the property of Robert W. Teumer and Paula K. Teumer. Twin Lakes presents three condensed and restated issues on appeal: 1) whether the trial court improperly admitted the report of the court-appointed appraisers; 2) whether there was sufficient evidence to support the trial court’s damage award; and 3) whether the trial court properly directed the clerk to refund Twin Lakes’s overpayment of damages. Concluding that the court-appointed appraisal was improperly admitted and that there was insufficient evidence to support the trial court’s damage award, and that the trial court correctly directed the clerk to refund Twin Lakes’s overpayment, we reverse and remand.

Facts and Procedural History

In January 2011, Twin Lakes filed a Complaint for Appropriation of Easement, seeking to appropriate two permanent sewer easements and two temporary construction easements — one each on two plots of land owned by the Teumers. In March 2011, following a hearing at which the Teumers appeared pro se, the court issued an interlocutory judgment of condemnation, determining that the Teumers owned the property over which Twin Lakes sought the easements, that the easements were required for Twin Lakes’s sewer project, and that the Teumers waived any objection to the acquisition but were entitled to fair compensation. The court also appointed three appraisers to assess the damages to which the Teumers were entitled.

In May 2011, the court-appointed appraisers filed a report concluding that just compensation for the taking amounted to $5,434. On June 3, 2011, Twin Lakes paid $5,434 to the clerk of the White Circuit Court, and as a result the court ordered that Twin Lakes was entitled to take immediate possession of the easements. That same day, Twin Lakes filed exceptions to the appraisers’ report. Three days later, the court clerk erroneously sent $5,434 to the Teumers.

In August 2012, a bench trial was held on the issue of the Teumers’ damages, at which the Teumers appeared pro se. Twin Lakes called two witnesses, the Twin Lakes superintendent, and a licensed appraiser. The appraiser valued the combined easements at a total of $950. The Teumers introduced no evidence. The court, on its own motion, admitted into evidence the report of the court-appointed appraisers, noting in the chronological case summary entry that the court took judicial notice of the report.

In October 2012, the court entered final judgment and order and determined that the Teumers’ damages were $5,000. In November 2012, Twin Lakes filed a motion to correct error. The court ordered the court clerk to refund to Twin Lakes $434 from overpayment to the Teumers but otherwise denied the motion to correct error. This appeal followed. Additional facts will be supplied as necessary.

Discussion and Decision

I. Standard of Review

Where, as here, the appellee has failed to submit a reply brief, we need not develop an argument on the appellee’s behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.2006). Instead, we ■will reverse the trial court’s judgment if the appellant’s brief presents a case of prima facie error. Id. Prima facie error in this context means “at first sight, on first appearance, or on the face of it.” Id. (citation omitted). We will affirm if the appellant is unable to meet this burden. Id.

II. Eminent Domain Appraisals

As background, we provide a brief overview of appraisals in an eminent domain case. Indiana Code section 32-24-1-5 requires that a condemnor first make an offer to purchase the easement or other interest in question. If the condemnor and condemnee cannot agree on a price, then the condemnor may file suit to have the damages determined. Ind.Code § 82-24-1-4. In that case, once the court is satisfied that the condemnor has the right to exercise the power of eminent domain, the court must appoint three appraisers to assess the damages that the property owners may sustain as a result of the taking. Ind.Code § 32-24-1-7(c). Once the court-appointed appraisers have assessed the damages, if the condemnor pays that amount to the court clerk, the condemnor may take possession of the interest in the property, although the amount of damages is subject to review if the appraisal is challenged. Ind.Code § 32-24-1-10. If neither party challenges the court-appointed appraisal within the statutory time limit, then that award becomes final and there is no issue for trial. State v. Berger, 534 N.E.2d 268, 269 (Ind.Ct.App.1989), trans. denied. However, either party may file an exception, challenging the award determined by the court-appointed appraisers. Ind.Code § 32-24-1-11(b). If an exception is filed, the case proceeds to trial for a determination of the damages.

As for any money that the condemnor deposited with the court clerk following the initial court-appointed appraisal, the condemnee may file a written request for payment of the damages forty-five days after the court clerk has mailed a copy of the appraisers’ report. Ind.Code § 32-24-1-11(d). When such a request is filed, the clerk must notify the condemnor, and the condemnor must be provided an opportunity to show cause why the requested amount should not be paid to the con-demnee. Ind.Code § 32-24-1-11(d)(2). After a hearing, the court determines and orders any payment to the condemnee. Ind.Code § 32-24-1-11(d)(3). If an exception has been filed to the court-appointed appraisal, the court clerk may not make payment to the condemnee until the con-demnee has filed a written undertaking with an approved surety for repayment to the condemnor of any excess payment once the final damages have been determined at trial. Ind.Code § 32-24-1-11(d)(4).

III. Admission of the Report of the Court-Appointed Appraisers

A. Pro Se Parties

Twin Lakes first complains that the court was improperly influenced by the Teumers because they appeared pro se. It is well settled that pro se litigants are to be held to the same standard as licensed lawyers. Goossens v. Goossens, 829 N.E.2d 36, 43 (Ind.Ct.App.2005). The record indicates that the court admitted the report of the court-appointed appraisers, without a motion by either party, because the court was giving extra latitude to the Teumers. At the trial, Twin Lakes objected to the court’s admission of the report, because it had not been offered and there had been no testimony from the appraisers. The court stated that, “I understand that you want to say that nobody offered this or nobody came and testified, I — I’m not going to hold that against a pro se, uh, defendant whose property has been uh, condemned ...” Transcript at 59. While we understand the difficulties faced by a defendant when proceeding pro se, and appreciate that judges sometimes exercise additional patience with pro se parties, the law is clear that they are to be held to the same legal standards as licensed attorneys. The court may not admit evidence on its own motion where it would not otherwise be able to do so, in order to not “hold it against” a pro se party.

B. Judicial Notice

Twin Lakes argues that judicial notice was an improper means for admission of the court-appointed appraisers’ report. While it appears that the court had an improper motive for admitting the report, as discussed above, we analyze here whether judicial notice was nonetheless an appropriate avenue for admission of the report. We conclude that it was not.

Judicial notice excuses the party having the burden of proving a fact from producing formal proof to establish that fact. Hutchinson v. State, 477 N.E.2d 850, 854 (Ind.1985). Indiana Evidence Rule 201 allows a court to take judicial notice of both certain kinds of facts and certain kinds of laws. “A judicially-noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Evid.R. 201(a). Types of law of which a court may take judicial notice include

(1) the decisional, constitutional, and public statutory law, (2) rules of court, (3) published regulations of governmental agencies, (4) codified ordinances of municipalities, (5) records of a court of this state, and (6) laws of other governmental subdivisions of the United States or of any state, territory or other jurisdiction of the United States.

Evid.R. 201(b). The court here did not mention judicial notice at the trial when admitting the appraisers’ report, and the chronological case summary entry does not note under which subsection of Evidence Rule 201 the court admitted the report.

Twin Lakes suggests, and we agree, that there is no question that the report was inadmissible as a kind of fact in this case, because the amount of damages was not only “subject to reasonable dispute,” but was in fact the entire dispute underlying the case. Of the possible kinds of law of which a court may take judicial notice, only “records of a court of this state” appears to potentially fit the court-appointed appraisal. However, while a party’s pleading may be judicially noticed, the facts in those pleadings are not necessarily subject to judicial notice. See, e.g., Lutz v. Erie Ins. Exch., 848 N.E.2d 675, 678 (Ind.2006) (“It is well settled in Indiana that a trial court may judicially notice a party’s pleadings, whether or not facts recited in those pleadings are susceptible of judicial notice.”); Brown v. Jones, 804 N.E.2d 1197, 1202 (Ind.Ct.App.2004) (“[FJacts recited within the pleadings and filings that are not capable of ready and accurate determination are not suitable for judicial notice.”), trans. denied. Here, we leave for another day whether it would have been appropriate to judicially notice the appraisers’ report, which was not a party pleading but was within the record of the court. What seems clear is that facts within the report, namely the damages calculated by the appraisers, were not suitable for judicial notice. The court-appointed appraisers’ report was thus improperly judicially noticed and admitted for consideration.

IV. Evidence Supporting Damage Award

Twin Lakes next argues that there was insufficient evidence supporting the court’s damage award of $5,000 to the Teumers. We agree. In eminent domain proceedings where the damages are at issue, the burden of showing the damages is on the condemnee. Gradison v. State, 260 Ind. 688, 300 N.E.2d 67, 75 (1973). We note that the Teumers called no witnesses and introduced no evidence at trial.

As we analyzed above, the appraisal report was improperly judicially noticed. In addition, there are several other problems with the appraisers’ report, even if it had been offered for admission. The first is that the report purports to be a fee simple appraisal. The trial court noted that the report

makes it look like there’s a fee simple take and not an easement take. Uh, but there are references that kind of indicate that they are aware of the temporary construction nature part of the take, and that they’re aware of the easement nature of the permanent part of the take. There’s some form usage here that is in poor form, and uh, there’s quite a disparity in the evidence.

Tr. at 59-60. The summary of the report, provided along with the report, states that the property rights appraised were a “fee simple estate.” Appendix at 32. References to fee simple are scattered throughout the report. While the report also mentions easements and partial takings, to the extent that we can make out what the appraisers actually calculated, it appears that the appraisers determined both the fee simple values as well as some easement values and combined them to reach a total takings value of $5,434. This may partially explain why the court-appointed appraisers’ report valued the damages at $5,434 whereas the appraiser that Twin Lakes called at trial valued the damages at $950. To the extent that the court-appointed appraisal was for a fee simple estate value, it was irrelevant to the court’s determination of the value of the easements that Twin Lakes required.

Secondly, case law indicates that even if the report had been offered into evidence by the Teumers — and assuming that the valuation was relevant — it nonetheless would not have been admissible. See AGT, Inc. v. City of Lafayette, 802 N.E.2d 1, 4-5 (Ind.Ct.App.2003) (“It has long been established in Indiana that the amount of the appraisers’ award paid into court by the condemnor and upon which award the landowner based his exceptions is not admissible in evidence upon the trial of these exceptions, and it is reversible error to admit it into evidence.... While the amount of the appraisers’ award is not admissible, a court-appointed appraiser may testify at trial without reference to the report or his or her previous appointment in the case.” (quotations and citation omitted)), trans. denied.

Because the report of the court-appointed appraisers was inadmissible, there was insufficient evidence supporting the court’s award of $5,000 to the Teumers for the easements on their property. The only other evidence presented regarding damages was the testimony of Twin Lakes’s witness Lawrence Culp, an appraiser, who valued the damages at $950 and whose testimony was uncontroverted. We therefore remand to the trial court to enter judgment in favor of the Teumers in the amount of $950.

Additionally, there appears to be a misunderstanding of the basic nature of an easement, which we would like to clarify here. At trial, the court spent some time expounding on the nature of an easement and what Twin Lakes could do on the property "with the easement, including mining for minerals. Twin Lakes objected that they were not claiming mineral rights, and the court stated that “if you don’t exclude it, it can possibly be included.” Tr. at 47. In fact, however, easements are limited to the purpose for which they are created. Whitt v. Ferris, 596 N.E.2d 230, 233 (Ind.Ct.App.1992). The extent of an easement is determined by the purpose served by the easement. Howard v. United States, 964 N.E.2d 779, 781 (Ind.2012). In its Complaint for Appropriation of Easement, Twin Lakes stated that the easement rights were necessary so that main sewer lines could be “erected, constructed, installed, laid, used, operated, inspected, repaired, maintained, and replaced for the collection and transporting of wastewater to a wastewater treatment site” and that the sewer line would be approximately fifty-four inches under the surface of the land and the Teumers would be “entitled to the continued use of the easement area in a manner not inconsistent with the easement.” App. at 12. The temporary easements were to aid in the construction of the project, and would terminate with all property rights reverting to the Teumers one year after the completion of construction. Twin Lakes’s easement would thus be limited to installation, maintenance, etc., of the sewer line, and would not, for example, include the right to mine the property for minerals.

V. Non-Party Liability

Finally, Twin Lakes argues that the court should not have ordered the court clerk, a non-party, to return to Twin Lakes any overpayment based on their deposit to the clerk of $5,434, but instead should have ordered the Teumers — who were erroneously sent a check by the clerk — to return the overpayment. We note that Twin Lakes’s argument here is limited and not supported by cogent argument or references, and thus is waived. See State v. Holtsclaw, 977 N.E.2d 348, 350 (Ind.2012). In fact, Twin Lakes states that “[a]ny effort to collect from the clerk the excess payment could implicate issues [Twin Lakes] has not chosen to raise.” Br. of Appellant at 19. We will nonetheless address the issue briefly.

We believe that the court was correct to order the clerk to return any overpayment. As discussed above, there are multiple statutory requirements revolving around any payment of damages to the condemnees. There are waiting periods and also requirements for the condemnees to provide an undertaking with a surety. The clerk here failed to follow any of these procedures, and sent a check to the Teu-mers for Twin Lakes’s entire $5,434 deposit only three days after the deposit had been made. Because none of the statutory procedures were followed, the money should still be in the hands of the clerk, and the clerk was properly ordered to refund money to Twin Lakes. The court advised the Teumers that they did not have to return any money. While we agree that the clerk is required to refund money to Twin Lakes, the clerk can nonetheless attempt to recover from the Teu-mers the overpayment portion of the erroneous payment.

Conclusion

Twin Lakes has presented a case of prima facie error. Concluding that the court-appointed appraisers’ report was improperly admitted, and that without the report there is insufficient evidence supporting the court’s damage award, we reverse and remand with instructions for the trial court to enter judgment in the amount of $950 in favor of the Teumers.

Reversed and remanded.

FRIEDLANDER, J., and CRONE, J., concur.

      . Twin Lakes has already remitted more than $950, and will be owed a refund for the excess payment, as discussed below.

      . Twin Lakes originally remitted $5,434 to the court clerk. Based on our conclusion above that the damages are only $950, that results in a $4,484 overpayment, which the court clerk will need to refund to Twin Lakes and may then attempt to recover from the Teu-mers.


source: Caselaw Access Project

author: FRIEDLANDER, Judge.

license: Public Domain

text:
    FARMERS MUTUAL INSURANCE COMPANY OF GRANT AND BLACKFORD COUNTIES, Appellant, v. M JEWELL, LLC, Auditor of Grant County, Indiana and Treasurer of Grant County, Indiana, Appellee.
    No. 27A05-1211-MI-593.
    Court of Appeals of Indiana.
    July 25, 2013.

      R.C. Richmond, III, Taft Stettinius & Hollister LLP, Indianapolis, IN, Attorney for Appellant.
    Jon L. Orlosky, Muncie, IN, Attorney for Appellee.
   OPINION

FRIEDLANDER, Judge.

Farmers Mutual Insurance Company of Grant and Blackford Counties (Farmers Mutual) appeals from the trial court’s order denying its petition to set aside a tax deed issued to M Jewell, LLC (Jewell). Farmers Mutual raises the following restated issue on appeal: Did the county auditor’s failure to comply with the statutory provision governing notice of tax sales render the tax deed issued to Jewell void?

We reverse and remand with instructions.

In 1988, Farmers Mutual acquired title to a tract of over 112 acres of farmland in Grant County (the Farm Property). Due to a drafting error, the deed listed the owner of the Farm Property as “Farmers Mutual Insurance Company of Grant and Blackford Counties, Inc.”, Appellant’s Appendix at 46 (emphasis supplied), instead of Farmers Mutual Insurance Company of Grant and Blackford Counties.

After the deed was recorded, it was sent to the county auditor’s office to be entered into the auditor’s computer system by a transfer deputy. The software used by the auditor’s office placed limitations on the amount of characters that could be entered per line, so the transfer deputies used abbreviations when entering grantees’ names. As a result, the auditor’s records listed the owner of the Farm Property as “Farmers Mutual Ins Co of Grant & Blackford Counties Inc”. Id. at 54. Additionally, the auditor’s records listed the owner’s address as “PO Box 1388, Marion, IN 46952”. Id.

In 2004, Farmers Mutual acquired another piece of property in Grant County located at 2125 S. Western Avenue in Marion (the Office Property). The deed conveying the Office Property correctly identified the grantee as “Farmers Mutual Insurance Company of Grant and Black-ford Counties.” Id. at 56. The auditor’s transfer deputies entered the name of the owner of the Office Property as “Farmers Mutual Insurance Co”, and the mailing address listed for the owner was the same as the address of the Office Property. Id. at 51.

In June 2008, the P.O. box listed in the auditor’s records as Farmers Mutual’s mailing address for the Farm Property was closed. Any forwarding order for the P.O. box would have expired a year later in June 2009; thus, any mail sent to the P.O. box after that date would not have been placed in the P.O. box or forwarded to Farmers Mutual. After the P.O. box was closed, Farmers Mutual did not provide the county auditor or treasurer with a new mailing address. Accordingly, subsequent property tax statements mailed to the P.O. box were returned to the treasurer, and Farmers Mutual failed to pay taxes on the Farm Property. Due to the delinquent taxes, the auditor placed the Farm Property on the list of properties to be sold at tax sale on September 23, 2010. The auditor forwarded the list to SRI, Inc., the company hired by the auditor’s office to provide notice of the tax sale.

On July 14, 2010, SRI sent notice of the tax sale by certified mail, return receipt requested, to “Farmers Mutual Ins Co Of’ at the Marion P.O. Box. Id. at 37. The notice was returned to SRI marked “RETURN TO SENDER NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD”. Id. Because the first notice was returned unclaimed, SRI sent a duplicate notice to “Farmers Mutual Ins Co Of’, again at the P.O. box, but his time by regular first class mail. Id. at 42. The duplicate notice was also returned unclaimed. Thereafter, neither SRI nor the auditor’s office made any further attempt to notify Farmers Mutual of the impending tax sale or find a more accurate address for Farmers Mutual.

The tax sale proceeded as scheduled on September 23, 2010, and Jewell purchased the Property for $5,508.98. A tax deed was issued to Jewell on November 9, 2011. Upon learning of the tax sale and deed, Farmers Mutual filed a petition to set aside the tax deed on February 27, 2012. A hearing was held on the petition on September 6, 2012, at the conclusion of which the trial court took the matter under advisement. On October 29, 2012, the trial court entered an order denying the petition. Farmers Mutual now appeals.

A person may defeat a tax deed only by proving one of the seven defects set forth in Ind.Code Ann. § 6-1.1-25-16 (West, Westlaw current through June 29, 2013, excluding P.L. 205-2013). Swami, Inc. v. Lee, 841 N.E.2d 1173 (Ind.Ct.App.2006), trans. denied. I.C. § 6-1.1-25-16 provides, in pertinent part, that a person may defeat a tax deed if “the notices required by ... IC 6-1.1-24-4 ... were not in substantial compliance with the manner prescribed in those sections.” This court has noted that “the proper procedure for appealing the issuance of a tax deed is found in Ind. Trial Rule 60[.]” Kessen v. Graft, 694 N.E.2d 317, 320 (Ind.Ct.App.1998), trans. denied. Accordingly, although not expressly styled as such, Farmers Mutual’s motion to set aside the tax deed is a motion for relief from judgment pursuant to T.R. 60(B). See Lindsey v. Neher, 988 N.E.2d 1207 (Ind.Ct.App.2013).

T.R. 60(B)(6) provides that a trial court may relieve a party from the entry of judgment if the judgment is void. “Failure to comply substantially with statutes governing tax sales renders void subsequent tax deeds which deprive owners of their property.” Lindsey v. Neher, 988 N.E.2d at 1210 (quoting Kessen v. Graft, 694 N.E.2d at 320). As a general matter, a trial court’s ruling on a T.R. 60(B) motion is reviewed for an abuse of discretion. Rice v. Comm’r, Ind. Dep’t of Envtl. Mgmt., 782 N.E.2d 1000 (Ind.Ct.App.2003). A ruling under T.R. 60(B)(6), however, “requires no discretion on the part of the trial court because either the judgment is void or it is valid.” Id. at 1003 (quoting Hotmix & Bituminous Equip. Inc. v. Har drock Equip. Corp., 719 N.E.2d 824, 826 (Ind.Ct.App.1999)).

We also note that the trial court entered special findings and conclusions pursuant to Indiana Trial Rule 52(A). Accordingly, we apply a two-tiered standard of review to those findings and the resulting judgment: we must first determine whether the evidence supports the findings and then whether the findings support the judgment. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213 (Ind.2012). We will not set aside the trial court’s findings unless they are clearly erroneous, and in making that determination, we will neither reweigh the evidence nor reassess the credibility of witnesses. Id. We will view the evidence in the light most favorable to the judgment and defer to the trial court’s factual findings if they are supported by the evidence or legitimate inferences therefrom. Id. The trial court’s legal conclusions, on the other hand, are reviewed de novo. Id. “A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts.” Id. at 217 (quoting Nichols v. Minnick, 885 N.E.2d 1, 3 (Ind.2008)).

“If an owner of real estate fails to pay the property taxes, the property may be sold in order to satisfy the tax obligation.” In re 2007 Tax Sale in Lake Cnty., 926 N.E.2d 524, 527 (Ind.Ct.App.2010). Tax sale proceedings, however, must comport with the due process requirements of the United States Constitution. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213. Thus, prior to conducting a tax sale, notice must be provided to one who may be deprived of a property interest. Lindsey v. Neher, 988 N.E.2d 1207; see also Jones v. Flowers, 547 U.S. 220, 223, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) (noting that “[bjefore a State may take property and sell it for unpaid taxes, the Due Process Clause of the Fourteenth Amendment requires the government to provide the owner ‘notice and opportunity for hearing appropriate to the nature of the case’ ” (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950))). Additionally, in Jones v. Flowers, the United States Supreme Court held that “when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.” 547 U.S. at 225, 126 S.Ct. 1708.

In keeping with these constitutional requirements, the General Assembly has enacted an extensive statutory framework governing tax sales and requiring notice to the property owner at various stages of the process. “The tax sale process is purely a statutory creation and requires material compliance with each step of the governing statutes.... ” In re 2007 Tax Sale in Lake Cnty., 926 N.E.2d at 527. Although issuance of a tax deed creates a presumption that a tax sale and all the steps leading up to the issuance of the deed were conducted in compliance with the applicable statutes, this presumption may be rebutted by affirmative evidence to the contrary. In re 2007 Tax Sale in Lake Cnty., 926 N.E.2d 524.

In 2007, in obvious response to the United States Supreme Court’s holding in Jones v. Flowers, the Indiana General Assembly amended the pre-tax sale notice statute, Ind.Code Ann. § 6-1.1-24-4 (West, Westlaw current through June 29, 2013, excluding P.L. 205-2013). Prior to the amendment, the notice statute simply required the auditor to send notice by certified mail to the owner or owners at their last known address. See Ind.Code Ann. § 6-1.1-24-4 (2006) (amended 2007). As amended, I.C. § 6-1.1-24-4 provides in relevant part as follows:

(a) Not less than twenty-one (21) days before the earliest date on which the application for judgment and order for sale of real property eligible for sale may be made, the county auditor shall send a notice of the sale by certified mail, return receipt requested, to:
(1) the owner of record of real property with a single owner; or
(2) at least one (1) of the owners, as of the date of certification, of real property with multiple owners;
at the last address of the owner for the property as indicated in the records of the county auditor on the date that the tax sale list is certified. In addition, the county auditor shall mail a duplicate notice to the owner of record, as described in subdivisions (1) and (2), by first class mail to the owners from whom the certified mail return receipt was not signed and returned.... If both notices are returned, due to incorrect or insufficient addresses, the county auditor shall research the county auditor records to determine a more complete or accurate address.

(emphasis supplied). Thus, the amended statute codifies the Supreme Court’s holding that due process requires the State to take additional steps to notify a property owner of an impending tax sale when mailed notice is returned unclaimed. See Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708. Pursuant to the statute, the county auditor has three progressive duties with respect to providing notice of an impending tax sale: (1) first, the auditor is required to send notice to the owner by certified mail at the address listed for the owner in the auditor’s records, (2) second, if the return receipt is not signed and returned, the auditor is required to send a duplicate notice by first class mail to the same address, and (8) finally, if both notices are returned due to an incorrect or insufficient address, the auditor’s office is required to search its records for a more complete or accurate address. I.C. § 6-1.1-24-4.

Here, the trial court found that the auditor’s office (through its agent, SRI) sent notices, first by certified mail and then by first class mail, and that both notices were returned, thereby triggering the auditor’s duty to search his records for a more complete or accurate address. The trial court found further that the auditor’s office failed to search its records as required by statute. Nevertheless, the trial court upheld the tax sale based on its conclusion that any such search would have been futile. Specifically, the trial court found as follows:

2. Farmers Mutual was the true owner of the Property despite the scrivener’s error in the Corporate Warranty Deed that conveyed title to Farmers Mutual....
3. Because the pre-tax sale notice sent by certified mail and the Duplicate Notice sent by regular mail were “returned”, the Auditor was required by Ind.Code § 6-1.1-24-4 to research his records to determine an accurate address for Farmers Mutual. The Auditor did not conduct the required search because SRI, the Auditor’s agent, claimed the Duplicate Notice was never returned.
4. However, had the Auditor researched his own records under the name of the owner of record, Farmers Mutual Insurance Company of Grant and Blackford Counties, Inc., the Auditor would not have discovered an alternative address for Farmers Mutual because Farmers Mutual had never provided the Auditor with a corrected or new address as it relates to the Property.
5. While Ind.Code § 6-1.1-24^1 does place a duty upon the Auditor to “research” his records in an attempt to discover a more complete or accurate address for the owner, it is inconceivable that the legislature intended for the Auditor to “research” names that are similar to that of the property owner in an effort to ascertain a better address for the owner. Accordingly, the fact that the Auditor did not research his own records for a better address is irrelevant.

Appellant’s Appendix at 27.

Thus, the trial court noted that the auditor had not carried out the duties imposed 1.C. § 6-1.1-24-4, but determined that the failure was excusable because compliance with the statute would not have resulted in Farmers Mutual actually receiving notice. Putting aside the question of whether the auditor’s office would have discovered an alternate address for Farmers Mutual had it performed the requisite search, we cannot agree that noncomplianee with the statute’s requirement that the auditor’s office search its records may be excused if it is later determined that such a search would have been fruitless.

Because I.C. § 6-1.1-24-4 was amended in response to the Supreme Court’s decision in Jones v. Flowers and for the purpose of codifying the due process principles set forth in that case, we interpret the statute with the reasoning of that case in mind. In Jones v. Flowers, the Court noted that “[d]ue process does not require that a property owner receive actual notice before the government may take his property.” 547 U.S. at 226, 126 S.Ct. 1708. Instead, it is sufficient if notice is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. at 314, 70 S.Ct. 652). And “when notice is a person’s due ... [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it[.]” Id. at 229, 126 S.Ct. 1708 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. at 315, 70 S.Ct. 652).

Thus, in the due process analysis, the focus of the inquiry is not on the ultimate result of the auditor’s efforts, i.e., whether the landowner has received actual notice. Instead, the focus is on the efforts themselves, and whether they are consistent with the actions of one desirous of actually informing the landowner of the impending tax sale. We conclude that the same is true of the statute. When both pre-tax sale notices are returned due to an incorrect or insufficient address, both due process and I.C. § 6-1.1-24-4 require further action from the auditor. The statute prescribes the specific action the auditor must take in such a case — the auditor’s office must search its records for a more accurate or complete address. Whether a search of the auditor’s records would have produced an alternate address and resulted in Farmers Mutual receiving actual notice in this case is not the salient question; rather, the question is whether the auditor’s office performed the duties imposed by the statute. In this case, it is undisputed that it did not. Accordingly, the trial court erred in denying the petition to set aside the tax deed based on its conclusion that the auditor’s failure to search his records was, in essence, harmless.

The trial court also concluded that Fanners Mutual was not entitled to have the tax deed set aside due to its failure to comply with its statutory obligation to notify the auditor’s office of its correct address. Specifically, the trial court found as follows:

6. As further set forth in Ind.Code § 6-1.1-24-4, “Failure by an owner to receive or accept the notice required by this section does not affect the validity of the judgment and order. The owner of the real property shall notify the county auditor of the owner’s correct address.” Farmers Mutual failed to meet its obligation to notify the Auditor of the correct address under the statute.
7. Any confusion as to the proper name or address of Farmers Mutual was caused solely by Farmers Mutual’s failure to correct the flawed deed under which the Property was conveyed[] or update its own address with the Auditor relative to the Property.

Appellant’s Appendix at 27-28.

We note, as did the trial court, that I.C. § 6-1.1-24-4 provides that “[t]he owner of real property shall notify the county auditor of the owner’s correct address.” The statute does not, however, indicate that a property owner’s failure to update his or her mailing address relieves the county auditor of his duties under the statute. Indeed, if we were to adopt such an approach, the requirement that the auditor’s office search its records for a more accurate or complete address in the event that the pre-tax sale notices are returned due to an incorrect or insufficient address would be meaningless; this is so because the very fact that the mailings have been returned means, in most cases, that the property owner has failed to provide a correct address.

Moreover, in Jones v. Flowers, the Supreme Court rejected any suggestion that a landowner’s failure to comply with a statutory obligation to keep his address updated forfeited his right to eonstitutionally sufficient notice. Although we decide this case on the basis of Indiana’s statutory notice requirements, the purpose of I.C. § 6-1.1-24-4 is to codify the applicable due process protections and instruct the auditor on how to provide constitutionally sufficient notice. Thus, to interpret the statute in a manner that conflicts with or provides less protection than the Due Process Clause would frustrate its clear legislative purpose. See Maser v. Hicks, 809 N.E.2d 429, 432 (Ind.Ct.App.2004) (“[t]he cardinal rule of statutory construction is to determine and give-effect to the true intent of the legislature”). Accordingly, we cannot conclude that a landowner’s failure to provide the auditor’s office with a correct mailing address excuses the auditor’s failure to carry out his duties under I.C. § 6-1.1-24-4.

Nevertheless, Jewell argues that Farmers Mutual is seeking equitable relief under T.R. 60(B) and, because Farmers Mutual failed to keep its address updated, it is barred from relief under the doctrine of unclean hands. As an initial matter, we note that it has often been said that a ruling on a T.R. 60(B) motion for relief from judgment is committed to “the equitable discretion of the trial court.” See, e.g., Fairrow v. Fairrow, 559 N.E.2d 597, 599 (Ind.1990). In the context of actions to defeat tax deeds under I.C. § 6-1.1-25-16, however, T.R. 60(B) merely provides a procedural mechanism for asserting a claim under the statute. Swami, Inc. v. Lee, 841 N.E.2d 1173 (Ind.Ct.App.2006), trans. denied. Moreover, where a tax deed is void under I.C. § 6-1.1-25-16(7) due to a lack of substantial compliance with statutory notice procedures, the trial court exercises no discretion and is required to set aside the tax deed. Lindsey v. Neher, 988 N.E.2d 1207.

Indeed, the cases on which Jewell relies in support of its argument that the doctrine of unclean hands precludes setting aside the tax deed are inapposite because they involve situations in which the petitioners sought relief on purely equitable grounds, as opposed to seeking relief under I.C. § 6-1.1-25-16. In Swami, Inc. v. Lee, 841 N.E.2d 1173 (Ind.Ct.App.2006), the petitioner did not assert any defect under I.C. § 6-1.1-25-16, but nevertheless sought equitable relief because it relied on a misrepresentation made by an employee of the county treasurer’s office that no taxes were due on the subject property. This court concluded that the trial court did not err in declining to set aside the tax deed on equitable grounds because the landowner had unclean hands due to its failure to keep its address updated. See also Tajuddin v. Sandhu Petroleum Corp. No. 3, 921 N.E.2d 891 (Ind.Ct.App.2010) (concluding that notice had been provided, but affirming trial court’s award of equitable relief to party seeking to set aside tax deed, concluding that under the circumstances, the landowner’s failure to keep its address updated did not establish unclean hands). These cases are easily distinguishable because here, Farmers Mutual seeks relief based on one of the statutory grounds enumerated in I.C. § 6-1.1-25-16 — namely, that the notices required by I.C. § 6-1.1-24^1 were not provided in substantial compliance with that section.

For all of these reasons, we conclude that the trial court’s judgment denying Farmers Mutual’s petition to set aside the tax deed was clearly erroneous. We therefore reverse the judgment of the trial court and remand with instructions to grant Farmers Mutual’s petition.

Judgment reversed and remanded with instructions.

ROBB, C.J., and CRONE, J., concur.

      . Although the parties disputed at trial whether the duplicate notice was returned unclaimed to SRI, the trial court specifically found that it had been returned to SRI marked "RETURN TO SENDER NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD”, like other items mailed to the P.O. box both before and after the duplicate notice, and in accordance with United States Post Office regulations. Appellant’s Appendix at 25. This record supports this finding by inference, and Jewell does not contest it on appeal.

        . We note, however, that under the facts of this case, it is not at all apparent to us that the auditor's office would not have discovered an alternate address for Farmers Mutual had it conducted the requisite search of its records. Depending on the abbreviations and search terms used, the auditor’s office might have discovered the address for the Office Property. Moreover, although the auditor’s records listed the owner of the Office Property as "Farmers Mutual Insurance Co” instead of "Farmers Mutual Ins Co of Grant & Black-ford Counties Inc.”, the auditor might nevertheless have made the connection and sent notice to the mailing address for the owner of the Office Property. Any conclusions with respect to what information the auditor’s office might have discovered and what it would have done with that information are purely speculative and based on hindsight. Our holding today will eliminate the need for trial courts to engage in such guesswork.

      . We are at a loss as to how Farmers Mutual's failure to correct the error in the deed — i.e., the erroneous inclusion of the abbreviation “Inc.” at the end of its name — could have caused any actual confusion or had any bearing on the address to which notice was sent in this case, as the auditor's office did not conduct the requisite search of its records. The analysis might be different had the auditor’s office searched its records but been unable to find an alternate address for Farmers Mutual or unable to link an alternate address to Farmers Mutual due to the error in the deed. But here, the auditor’s office did not conduct a search at all.

      . We also note that I.C. § 6-1.1-24-4 provides that the auditor’s "failure to obtain a more complete or accurate address does not invalidate an otherwise valid sale.” This provision clearly applies only in situations where the auditor has, in fact, carried out his statutory duty to search his records, but been unable to locate an alternate address. Additionally, I.C. § 6-1.1-24-4 goes on to provide that "[fjailure by an owner to receive or accept the notice required by this section does not affect the validity of the judgment and order.” This is nothing more than a statutory acknowledgement that a lack of actual notice to the landowner does not invalidate a tax sale, so long as the attempts at notice are reasonably calculated to provide actual notice.

      . Additionally, Tax Certificate Invs., Inc. v. Smethers, 714 N.E.2d 131 (Ind.1999), Elizondo v. Read, 588 N.E.2d 501 (Ind.1992), Swami, Inc. v. Lee, 841 N.E.2d 1173, and Combs v. Tolle, 816 N.E.2d 432 (Ind.Ct.App.2004), were all decided prior to the 2007 amendment to I.C. § 6-1.1-24-4 requiring the auditor’s office to research its records to determine a more complete or accurate address in the event both mailed notices are returned due to incorrect or insufficient addresses.


author: BAKER, Judge.

text:
    In re the PATERNITY OF JO.J., J.W.J., Appellant-Respondent, v. D.C., Appellee-Petitioner.

    No. 29A05-1209-JP-447.
    Court of Appeals of Indiana.
    July 30, 2013.

      J.W.J., Indianapolis, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Kyle Hunter, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee, State of Indiana.

      . 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.

   OPINION

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 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.

FACTS

Mother and Father have been litigating child support issues concerning their minor child, 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-1 111, 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 Pfleg-ing 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 changed the location where the parties were to exchange J.B.J. for parenting time from a fire station to a nearby gas station.

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 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 $68,000 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 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.

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 “[ujntil 2012 [Father] had reduced his arrearage but in 2012 the ar-rearage 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 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, 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 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 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.

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 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.

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 Sl-16-8-l(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 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 31-16-8-l(b)(l) 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 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 (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, 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 (Ind.Ct.App.1994) (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 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.

| 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 “[fincóme 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 court was once again vested with jurisdiction to reconsider this issue prospectively as of the date of its final, written orders.

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 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.

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 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.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 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 is not to punish the con-temnor 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, “[0]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 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.

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 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 guai'an-teeing 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.

TV. 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.

      . 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 (Ind.Ct.App.2001) (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 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.

      . 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.

      . 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.

      . 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.

      . 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.

      . 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).


author: MAY, Judge.

text:
    In re the ADOPTION OF P.A.H., f/k/a P.V., Minor Child, B.D. and L.H.C., Appellants-Petitioners. J.H., Appellee-Cross-Petitioner.
    No. 79A02-1302-AD-183.
    Court of Appeals of Indiana.
    July 30, 2013.

      Eric H. Burns, Reid D. Murtaugh, Withered Burns LLP, Lafayette, IN, Attorneys for Appellants.
   OPINION

MAY, Judge.

B.D. and L.H.C., adoptive parents of P.H., appeal the grant of post-adoption visitation to P.H.’s biological uncle, J.H. They present four issues, which we consolidate and restate as whether the trial court erred when it granted J.H. visitation. We reverse.

FACTS AND PROCEDURAL HISTORY

P.H. was born with drugs in her system on March 13, 2011, and placed in foster care with B.D. and L.H.C. J.H., P.H.’s uncle, learned of P.H.’s existence in July 2011. He appeared at a permanency hearing on November 30 and requested P.H. be placed with him. Following a contested hearing, the trial court ordered P.H.’s continued placement with B.D. and L.H.C., but it granted J.H. visitation one day per week.

The parental rights of P.H.’s biological parents were terminated. B.D. and L.H.C. filed a petition to adopt P.H., as did J.H., and those adoption petitions were consolidated into one cause. After a hearing, the trial court granted adoption of P.H. to B.D. and L.H.C., and it granted visitation rights to J.H. The trial court ordered visitation with J.H. for four hours every two weeks, until P.H. reached three years of age. Thereafter, visitation was to increase to one thirty-hour period every four weeks.

DISCUSSION AND DECISION

An order is void ab initio if the trial court lacks the authority to provide the relief ordered under any set of circumstances. M.S. v. C.S., 938 N.E.2d 278 (Ind.Ct.App.2010). The trial court lacked authority to grant post-adoption visitation rights to J.H., as he is not within any statutory category of persons entitled to visitation rights. See Ind.Code § 31 — 19— 16-2 (birth parents of adopted children); Ind.Code § 31-19-16.5-1 (siblings); Ind. Code § 31-17-5-9 (grandparents); and see In re Guardianship of J.E.M., 870 N.E.2d 517, 519 (Ind.Ct.App.2007) (noting one who has had a “custodial and parental relationship” with a child may later seek visitation with the child but our Supreme Court has expressed the opinion that the “custodial and parental relationship” right to visitation should extend only to stepparents). “A visitation award without a cognizable right to visitation constitutes an abuse of discretion.” Tinsley v. Plummer, 519 N.E.2d 752, 754-755 (Ind.Ct.App.1988) (great-aunt with limited pre-judicial intervention contact with minor did not met threshold requirement for award of visitation).

As the trial court lacked authority to grant post-adoption visitation rights to J.H., the portion of its order granting post-adoption visitation to J.H. is void ab initio.

Reversed.

BAKER, J., and MATHIAS, J., concur.

      . As J.H.’s petition was consolidated with that of B.D. and L.H.C., he presumably became a party to this litigation. The record reflects he was represented by counsel and notified of this appeal. However, he did not submit an appellee’s brief.