author: KIRSCH, Judge.

text:
    In the Matter of the Support of B.J.R., B.J.R., by next friend, R.J.C., Appellant-Respondent, v. C.J.R., SR., Appellee-Petitioner.
    No. 49A02-1206-RS-454.
    Court of Appeals of Indiana.
    March 11, 2013.

      Deborah M. Agard, Law Office of Deborah M. Agard, D. Michael Bowman, Indianapolis, IN, Attorneys for Appellant.
    Holly J. Wanzer, Wanzer Edwards, PC, Indianapolis, IN, Attorney for Appellee.
   OPINION

KIRSCH, Judge.

R.J.C. (“Mother”) appeals the trial court’s order modifying the child support paid by C.J.R., Sr. (“Father”) for the benefit of B.J.R. (“Child”). Mother raises several issues on appeal that we consolidate and restate as:

I. Whether the trial court had subject matter jurisdiction to modify a Pennsylvania child support order when the initial filing was missing a certified copy of the foreign order but the order was supplied at a later date;
II. Whether the trial court erred in finding the Pennsylvania child support order was properly authenticated;
III. Whether the trial court erred in modifying the child support order retroactive to the date of registration of the Pennsylvania child sup- . port order when the registration did not occur at the same time as the request for registration; and
IV. Whether the trial court erred in modifying the child support order because insufficient evidence was presented of the parties’ economic circumstances at the time of the original order, Father’s rental income was not included in calculation of his income, and Father was given larger parenting time credit to offset travel costs associated with exercising his parenting time.

We affirm.

FACTS AND PROCEDURAL HISTORY

On February 10, 2000, a stipulated child support order was entered in Pennsylvania between the parties (“Foreign Order”). At the time of this order, Father resided in Pennsylvania, and Mother and Child resided in Georgia. In the Foreign Order, Father was ordered to pay $1,500.00 per month in child support, $342.00 per month for daycare, and $70.00 per month for health insurance, for a total of $1912.00 per month. Subsequently, when Child no longer needed daycare, the parties agreed to eliminate the payment for daycare, and Father began paying a reduced amount per month. This modification to the Foreign Order was not made through any court in any state.

On September 14, 2010, Father filed a petition to register the Foreign Order in a Marion County, Indiana Circuit Court, but failed to provide a certified copy of the Foreign Order with the filing. At that time, both Mother and Child lived 'in Indiana, and Father lived in Georgia but has subsequently moved to Maryland where he now resides. On September 15, 2010, Father filed a petition to modify his child support, which alleged that there had been a significant and substantial change from the issuance of the dissolution decree that rendered Father’s child support obligation to be unreasonable. Appellant’s App. at 26. The petition further alleged that the significant changes were that both parties’ economic factors had changed since the issuance of the Foreign Order and there had not been a modification of Father’s support obligation since 2000. Id. The petition alleged that the work-related daycare costs had ceased, that Father had been laid off from his employer and his severance had been exhausted, that he was current in his child support obligation, and that the modification should be made retroactive to the filing date of petition, September 15, 2010. Id. at 27.

On August 30, 2011, Father filed an amended petition to register a foreign decree and attached a copy of the Foreign Order. Father filed an amended motion to modify his child support on December 20, 2011. On January 17, 2012, the trial court issued an order ruling on several motions to dismiss and strike filed by Mother and on Father’s petitions to register the foreign decree. In the order, the trial court found that Father’s August 30, 2011 amended petition to register asserted no additional issues, claims, or defenses, and therefore, the trial court would not treat the petition as “an [a]mended [p]etition, per se, under [Trial] Rule 15.” Id. at 11. The trial court ruled that, before August 30, 2011, the Foreign Order could not have been registered because a copy of the order had not been submitted to the court. Id. The trial court, however, did register the Foreign Order as of August 30, 2011. The trial court further stated that a minute entry from August 30, 2011 was entered in error because the trial court had mistakenly believed that no petition for modification had been filed' at that time; however the petition for modification had been filed on September 15, 2010.

On February 10, 2012, a hearing was held on Father’s modification request. At the hearing, Father testified that there had been substantial changes in his life since 2000, when the original support order was issued. Tr. at 21. At the time of the Foreign Order, Father had been working for an apartment investment management company, but was subsequently laid off and received a severance. He was unemployed and looking for a job for about two years. At the time of the hearing, Father was working for Resource Residential making $2,500.00 per week. He had begun working for that employer in February 2011. Father testified that he was paying the travel costs associated with exercising his parenting time. Id. at 28. Father requested that the modification be made retroactive to August 30, 2011 because there had been delays in the case for which he was not responsible; the initial filing for modification had been September 15, 2010, and he had continued to pay the higher child support amount since then and had incurred attorney fees and travel expenses associated with the case. Id. at 28-30. Between August 30, 2011 and the hearing date, Father paid $1,570.00 per month in child support, and he asked the trial court to establish an overpayment of $4,014.00 as of February 1, 2012. Id. at 32, 41.

On May 10, 2012, the trial court issued its order finding that it had subject matter jurisdiction over the case and denied Mother’s motion to dismiss for lack of subject matter jurisdiction. Appellant’s App. at 16. The trial court further granted Father’s motion to modify child support and decreased Father’s weekly obligation to $214.00 retroactive to August 30, 2011. Id. at 18. Mother now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Subject Matter Jurisdiction

Subject matter jurisdiction is an issue of law to which we apply a de novo standard of review. Jackson v. Holiness, 961 N.E.2d 48, 50 (Ind.Ct.App.2012) (citing Lombardi v. Van Deusen, 938 N.E.2d 219, 223 (Ind.Ct.App.2010)). Likewise, a trial court’s interpretation of a statute is an issue of law reviewed de novo. Id. Subject matter jurisdiction is the power of a tribunal to hear and to determine a general class of cases to which the proceedings before it belong. Id. (citing Georgetown Bd. of Zoning Appeals v. Keele, 743 N.E.2d 301, 303 (Ind.Ct.App.2001)). A tribunal receives subject matter jurisdiction over a class of cases only from the constitution or from statutes. Id.

Mother argues that the trial court erred in modifying Father’s child support obligation because it did not have subject matter jurisdiction to modify the Foreign Order. She contends that Father failed to comply with the statutory requirements for registering a foreign order in Indiana and that no amended petition for modification of child support was filed with the amended request for registration. Mother asserts that Father’s initial petition to register the foreign decree, which did not include a certified copy of the Foreign Order, was a nullity, and therefore, the September 15, 2010 motion for modification was also a nullity because it predated the August 30, 2011 amended petition to register, which did include the Foreign Order. She further alleges it was error for the trial court to rely on the modification petition filed before the amended registration petition because Father was required to file his modification request at the same time or after he filed the amended registration petition.

Indiana Code section 31-18-6-9 states that a party seeking to modify a child support order issued in another state is required to register the order in Indiana. Indiana Code section 31-18-6-11 permits an Indiana trial court to modify a registered foreign child support order if, after notice and hearing, the court finds that none of the parties live in the state that issued the foreign order, the petitioner is not an Indiana resident, and the respondent is subject to the personal jurisdiction of the Indiana court; additionally, the parties can file written consent to jurisdiction in Indiana. Here, Mother does not dispute that Child and Mother, the respondent, lived in Indiana and that Mother was subject to Indiana’s personal jurisdiction. There is also no dispute that Father was a resident of Maryland. Her only dispute is that the Foreign Order was never properly registered in the trial court such that the trial court had subject matter jurisdiction to modify it.

Indiana Code section 31-18-6-2 provides the following procedure to register a foreign order for enforcement in an Indiana court:

(a) A support order or an income withholding order of another state may be registered in Indiana by sending the following documents and information to the appropriate tribunal in Indiana:
(1) A letter of transmittal to the tribunal requesting registration and enforcement.
(2) Two (2) copies, including one (1) certified copy, of each order that is required to be registered, including any modification of an order.
(3) A sworn statement by the party seeking registration or a certified statement by the custodian of the records showing the amount of any arrearage.
(4) The name of the obligor and, if known:
(A) the obligor’s address and Social Security number;
(B) the name and address of the obligor’s employer and any other source of income of the obligor; and
(C) a description and the location of property of the obligor in Indiana not exempt from execution.
(5) The name and address of the obli-gee and, if applicable, the agency or person to whom support payments must be remitted.
(b) On receipt of a request for registration, the registering tribunal shall cause the order to be filed as a foreign judgment, together with one (1) copy of the documents and information, regardless of form.
(c) A petition seeking a remedy that must be affirmatively sought under other Indiana law may be filed at the same time as the request for registration or later. The petition must specify the grounds for the remedy sought.

Mother asserts several errors existed in Father’s petition to register the Foreign Order, which prevented the trial court from registering it. She first relies on the fact that Father’s request to register the Foreign Order did not identify Father’s employer, employer’s address, and Father’s sources of income. Indiana Code section 31-18-6-2(a)(4) provides that the request for registration should include the name of the obligor and, if known, the obligor’s employer and sources of income along with other information. The statute therefore contemplates that certain information may be unknown or missing from the request and the lack of such information should not cause the failure of such a request for registration of a foreign decree. Further, at the time Father filed his request, he was unemployed and had no employer information to supply. Mother also fails to cite to any authority that specifically states that the absence of employer information in the request for registration deprives the trial court of subject matter jurisdiction.

Mother next takes issue with a statement in Father’s request that: “Mother and minor child are residents of Tippecanoe County and Tippecanoe County is the Court of proper jurisdiction to hear this matter.” Appellant’s App. at 24. There is no dispute that Mother and Child were residents of Marion County, Indiana at the time of the filing of Father’s request. Under Indiana Code section 31-18-6-2(a)(5), a request to register a foreign decree should include the “name and address of the obligor and, if applicable, the agency or person to whom such payments must be remitted.” In paragraph 4 of Father’s petition to register, he included the address where Mother and Child resided and a statement that they were residents of Marion County. Id. at 23. Although Father included an erroneous statement as to venue in one paragraph of his petition, he did include the accurate information required under the statute. His erroneous statement therefore appears to be merely a scrivener’s error and was superfluous to his request as there is no requirement for venue information under Indiana Code section 31-18-6-2. Additionally, despite this scrivener’s error, Father filed his request in Marion County, Indiana, which was the proper venue.

Mother next points to the fact that the Foreign Order, although referred to as Exhibit A in paragraph 1 of Father’s petition to register, was not attached to the petition when it was filed on September 14, 2010. Under the statute, a party requesting registration is required to provide two copies of the foreign order to be registered, with one being a certified copy. Ind.Code § 31-18-6-2(a)(2). Because Father’s petition to register a foreign decree did not have the required copies of the foreign order attached, the trial court did not immediately register the Foreign Order, and no action was taken on Father’s petition. On August 23, 2011, Mother filed a motion to dismiss Father’s petition to register on the basis that the Foreign Order was not attached to Father’s petition. On August 30, 2011, Father filed an amended petition to register a foreign decree and attached the missing documents. Although framed as an amended petition to register, the trial court did not treat it as an amended petition under Indiana Trial rule 15(A), which only allows amendment of pleadings with leave of the trial court or consent of the adverse party. As the trial court noted, Father did not include any new issues, claims, or defenses in his August 30, 2011 filing; it was merely filed to cure the defect of his original filing by providing the Foreign Order. We agree with the trial court that Father’s filing of August 30, 2011 was not an amendment of a previous filing under the purview of Trial Rule 15(A), and therefore did not have to meet the requirements of that rule.

Mother lastly takes issue with the trial court’s failure to send three copies of the registration petition to the Pennsylvania court in accordance with Indiana Code section 31 — 18—3—4(a)(1). Mother cites to no authority to support this contention that a trial court that fails to send these copies is unable to exercise subject matter jurisdiction. Further, it does not appear that Mother objected to the trial court’s failure to send these documents to the Pennsylvania court. Therefore, she has waived this issue on appeal because generally a party is precluded from presenting an argument or issue on appeal unless the party first raised that argument or issue to the trial court. Thalheimer v. Halum, 973 N.E.2d 1145, 1150 (Ind.Ct.App.2012). We conclude that the trial court did not err when it found that it had subject matter jurisdiction over the matter because the Foreign Order was properly registered as of August 30, 2011.

II. Authentication of Foreign Order

The determination whether evidence has been authenticated is within the discretion of the trial court. Rice ex rel. Lopez v. Harper, 892 N.E.2d 209, 213 (Ind.Ct.App.2008), trans. denied. We will reverse the trial court’s ruling only for an abuse of discretion. Id. An abuse of discretion occurs when the decision is clearly erroneous and against the logic and effect of the facts and circumstances before the court. Id.

Mother argues that the trial court abused its discretion when it found that the Foreign Order was properly authenticated. She contends that this was done in error because the Foreign Order consists of two documents, the order and the stipulation, and that these two documents bore different case numbers, the stipulation was not certified, and the two documents had been altered by an unknown person without authentication of the hand-written changes made. Mother asserts that a trial court cannot give full faith and credit to an order, that on its face, differs from the underlying stipulation it purports to enter into record.

“Full faith and credit commands deference to the judgments of foreign courts, and ‘the judgment of a sister state, regular and complete upon its face, is pri-ma facie valid.’ ” Harry Kaufmann Motorcars, Inc. v. Schumaker Performance, Inc., 964 N.E.2d 872, 875 (Ind.Ct.App.2012) (quoting Gardner v. Pierce, 838 N.E.2d 546, 550 (Ind.Ct.App.2005)), reh’g denied, trans. denied. A party attacking the judgment of a sister state has the burden of rebutting this presumption of validity and of showing that the sister state lacked jurisdiction. Id. Mother asserts that a foreign document must meet the requirements of Indiana Code section 34-39-4-3 in order to be authenticated and admitted into evidence. In Mayes v. State, 467 N.E.2d 1189 (Ind.1984), our Supreme Court, in determining whether an order of conviction and sentencing from another state was authenticated and could be admitted into evidence, stated that Indiana Trial Rule 44 provides a method alternative to Indiana Code section 34-39-4-3. Id. at 1195. Indiana Trial Rule 44 states that the rules concerning proof of official records are governed by the Rules of Evidence.

Under the Indiana Rules of Evidence, the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Ind. Evidence Rule 901(a). A domestic official record is self-authenticating with no requirement of extrinsic evidence provided that it is “attested by the officer having the legal custody of the record, or by his deputy.” Evid. R. 902(1). In Kidd v. State, 738 N.E.2d 1039 (Ind.2000), our Supreme Court noted that the certification of a public officer from the specific jurisdiction where the record is kept is sufficient to authenticate the record, and there is no mandate that the certification take a particular form. Id. at 1043.

Here, the Foreign Order was certified by the Deputy Prothonotary of Bucks County, Pennsylvania (“Deputy”). Appellant’s App. at 49. The Deputy used a stamp and a handwritten notation along with her signature to certify the Foreign Order. Id. The handwritten notation refers to the “Child Support & Stip[.] of Order” as what is being certified. Id. The language of the order specifically incorporated the “Stipulation for Agreed Order of Child Support,” which was attached to the order. Id. The Foreign Order was a mul-ti-page document, and there was a handwritten alteration to the cause number on the first page and not the second page. The trial court reviewed the two parts of the Foreign Order and found that, based on the fact that the cause numbers were identical prior to the handwritten change, the names of the parties on both parts of document were identical, and the attached “Stipulation for Agreed Order of Child Support” was specifically incorporated in to the “Order for Child Support,” the handwritten change did not affect the authenticity of the Foreign Order. Id. at 16. We conclude that the trial court was within its discretion to find the Foreign Order authenticated based upon the certification by the Deputy.

III. Modification Date

Decisions regarding child support rest within the sound discretion of the trial court. Haley v. Haley, 771 N.E.2d 743, 752 (Ind.Ct.App.2002). It is within a trial court’s discretion to make a modification of child support relate back to the date the petition to modify is filed, or any date thereafter. Quinn v. Threlkel, 858 N.E.2d 665, 674 (Ind.Ct.App.2006) (citing Carter v. Dayhuff, 829 N.E.2d 560, 568 (Ind.Ct.App.2005)). We will reverse a decision regarding retroactivity only for an abuse of discretion or if the trial court’s determination is contrary to law. Id.

Mother contends that the trial court abused its discretion when it modified Father’s child support order retroactive to August 30, 2011. She argues that this date was before the filing of Father’s amended support modification petition because the original filing of the petition to modify was rendered a nullity due to defects in the registration in the Foreign Order. Because the modification of a support obligation can only relate back to the date the petition to modify was filed, and not an earlier date, Mother asserts that the trial court erred in its order.

Indiana Code section 31-18-6-9, which governs the registration of a foreign child support order for purposes of modification, requires the party seeking modification to register that foreign order in Indiana. Ind.Code § 31-18-6-9(a). It goes on to state, that a “petition for modification may be filed at the same time as a request for registration or later.” Ind. Code § 31-18-6-9(b). After the foreign support order has been registered in Indiana, the Indiana court may modify the order. Ind.Code § 31-18-6-ll(a).

In the present case, Father filed his request to register the Foreign Order on September 14, 2010. He then filed a petition to modify the support order on September 15, 2010. As previously discussed, Father’s request to register the Foreign Order did not include a certified copy of the Foreign Order, which prevented the trial court from registering the order as of the date of the request. Father cured this defect on August 30, 2011, and the trial court registered the Foreign Order as of that date. In its registration order, the trial court clearly stated that it did not consider Father’s amended petitions to register the Foreign Order to be amended pleadings under Trial Rule 15(A) because the “amended” petitions raised no new issues, claims, or defenses. Appellant’s App. at 11. Although they were entitled “amended” petitions, they merely served to correct defects in the already-filed request for registration, which had been filed on September 14, 2010.

The trial court could not register the Foreign Order until it had the appropriate documents required under Indiana Code section 31-18-6-2. Father’s request to register the Foreign Order remained pending until the required documents were provided to the trial court. Once Father filed the documentation on August 30, 2011, the trial court properly registered the Foreign Order as of that date. Although Indiana Code section 31-18-6-11 does not allow a trial court to modify the child support order in the foreign order until the foreign order has been registered, the language of Indiana Code section 31-18-6-9 requires only that a request for registration be filed — not the completed registration be accomplished— before the petition to modify may be filed. Because Father filed his petition for modification of child support one day after he filed his petition to register the Foreign Order, he complied with Indiana Code section 31-18-6-9. The trial court correctly modified Father’s child support obligation as of the date of registration of the Foreign Order pursuant to Indiana Code section 31-18-6-11, which permits modification after the foreign order has been registered in the trial court. We conclude that the trial court did not abuse its discretion when it ordered the child support modification retroactive to August 30, 2011.

IV. Sufficient Evidence to Modify Child Support

There is a strong emphasis placed on trial court discretion in determining child support obligations in Indiana. Carpenter v. Carpenter, 891 N.E.2d 587, 592 (Ind.Ct.App.2008). We will not reverse a trial court’s decision regarding the modification of a child support order unless it is clearly erroneous. Id. On appeal, we do not reweigh evidence or judge witness credibility. Id. We will consider only the evidence and reasonable inferences from that evidence favorable to the judgment. Id.

We also note that in this case, the trial court sua sponte entered findings and conclusions. Our standard of review, therefore, is two-tiered: we will determine whether evidence supports the findings and then whether the findings support the judgment. Fowler v. Perry, 880 N.E.2d 97, 102 (Ind.Ct.App.2005). We “shall not set aside the findings or judgment unless clearly erroneous.” Ind. Trial Rule 52(A). We will conclude a finding is clearly erroneous when a review of the record leaves us firmly convinced that a mistake has been made. Carpenter, 891 N.E.2d at 592. We will conclude the trial court’s judgment is clearly erroneous only if (i) its findings of fact do not support its conclusions of law or (ii) its conclusions of law do not support its judgment. Id. “Although we defer to a trial court’s ability to find the facts, ‘we do not defer to conclusions of law, and a judgment is clearly erroneous if it relies on an incorrect legal standard.’ ” Id. (quoting Dedek v. Dedek, 851 N.E.2d 1048, 1050 (Ind.Ct.App.2006)).

Mother argues that the trial court erred in modifying Father’s child support obligation. She specifically contends the modification was done in error because Father failed to present evidence of the parties’ economic circumstances at the time of the original order and therefore failed to show a change in the parties’ circumstances that caused the original support order to be unreasonable as required by the statute. Mother further asserts that the modification was not proper because Father failed to report income he received from the lease of a home he owned. She also takes issue with the trial court’s grant of credit against Father’s child support obligation for 63 overnights when he only spent 21 overnights with Child in 2009 and 2010.

Under Indiana Code section 31-16-8-1, a child support order may be modified upon a showing of either: (1) changed circumstances so substantial and continuing as to make the terms unreasonable; or (2) that a party has been ordered to pay an amount in child support that differs by more than twenty percent from the amount that would be ordered by applying the child support guidelines and the original order was issued at least twelve months prior to the filing of the petition to modify. Ind.Code § 31 — 16—8—1 (b). The party seeking modification of the child support order must only meet one of these tests. Id.

Here, the trial court found that Father had satisfied both tests under Indiana Code section 31 — 16—8—1(b). Specifically, the trial court found that, under the Foreign Order, Father had been ordered to pay $342.00 as his contribution toward daycare and that Mother no longer incurs daycare costs for Child, which it concluded was a substantial change in circumstances making the Foreign Order unreasonable. Appellant’s App. at 18. The trial court also found that, under the Foreign Order, Father had been ordered to pay child support equaling $441.23 per week and that pursuant to the child support obligation work sheet, using Father’s new income, his weekly support obligation should be $214.00, which differed by more than twenty percent from the previous order. Id. at 16,18.

The evidence presented at trial showed that, since the entry of the Foreign Order, many changes had occurred in the parties’ situations. Father had moved several times to different states, and at the time of the trial, he and Child no longer lived in the same state, which required Father to expend significant travel costs to exercise parenting time. Tr. at 28. Father had also been laid off from the job where he was employed for twenty years and where he was working when the Foreign Order was entered and had found new employment, after being unemployed for two years, where he made a lower salary than at his former employment. Id. at 22, 24. Child had also grown old enough, in the twelve years since the Foreign Order was entered, that Child no longer required daycare, the cost of which was a component of the Foreign Order. Id. at 19.

This evidence was sufficient to establish changed circumstances so substantial and continuing as to make the terms unreasonable. In its order modifying child support, the trial court focused on the elimination of daycare expenses as a substantial change. Mother contends that, since she and Father had previously informally agreed that Father would pay a lower amount of child support due to the end of the daycare expenses, the elimination of the childcare costs alone cannot be considered a substantial change. We disagree. Under Indiana Code section 31-16-8-1, there need only be a substantial change in circumstances as to make the original order unreasonable. The Foreign Order included an obligation for daycare expenses, and the parties did not have a court change the order to reflect a new support obligation when child care expenses were no longer necessary. Informal agreements between parents are generally not effective until a motion for modification is filed. Whited v. Whited, 859 N.E.2d 657, 661 (Ind.2007). Therefore, Father’s present petition to modify is the first opportunity a trial court has had to review the elimination of daycare expenses as a changed circumstance.

Father also presented evidence at trial that his support obligation under the Foreign Order, which was entered in 2000 and over one year before the petition to modify, was $1,912.00 per month, or $441.23 per week. Appellant’s App. at 50; Tr. at 14. Father testified that he had been laid off from the job where he was employed at the time of the Foreign Order and that he had started new employment, where he made $2,500.00 per week. Tr. at 22, 24. Using this amount for Father’s income on the child support obligation worksheet, the trial court calculated Father’s new support obligation to be $214.00 per week, which differs by more than twenty percent from the amount ordered in the Foreign Order. We therefore conclude that sufficient evidence was presented to support the trial court’s finding that Father’s “current support obligation differed by more than [twenty percent] from the previous order entered more than one year ago.” Appellant’s App. at 18.

Mother takes issue with the amount of parenting time credit that Father was given in the calculation of his support obligation. Father requested and was granted a parenting time credit of 63 overnights. Appellant’s App. at 17. Father testified that he actually planned to exercise parenting time in excess of sixty-three overnights, including spring break, half the summer, and alternate holidays. Tr. at 26-27. It appears from the modification order that the trial court granted Father additional overnight credit due to the travel costs he incurs to exercise his parenting time. Appellant’s App. at 17. Such a deviation is contemplated in the Indiana Child Support Guidelines, which includes a non-exhaustive list of situations calling for deviation in the commentary to Guideline 1, and provides the following: “The custodial or noncustodial parent incurs significant travel expenses in exercising parenting time.” Ind. Child Support Guideline 1.

Mother also alleges that the trial court used an incorrect amount for Father’s income. Specifically, she claims that Father was earning additional income from a rental property, and the amount of rent received should have been added to Father’s employment income on the worksheet. At trial, Father testified that he leased a home that he and his current wife own in Georgia because they had been unable to sell the home. TV. at 72-73, 79-80. Under the Indiana Child Support Guidelines, “[wjeekly [g]ross [fincóme from self-employment, operation of a business, rent, and royalties is defined as gross receipts minus ordinary and necessary expenses.” Child Supp. G. 3(A)(2). While Father testified that he received $2,300.00 per month as rent, he also testified that once he used the rent on the expenses associated with the home, including the mortgage, taxes, and insurance, he made no money. TV. at 91. Since the ordinary and necessary expenses associated with being a landlord equal or exceed the gross receipts of rent, the trial court properly excluded the rental receipts from Father’s gross income.

Considering only the evidence and reasonable inferences from that evidence favorable to the judgment, as we are required to do under our standard of review, we conclude that sufficient evidence was presented to establish: (1) a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or (2) that a party has been ordered to pay an amount in child support that differs by more than twenty percent from the amount that would be ordered by applying the child support guidelines and the original order was issued at least twelve months prior to the filing of the petition to modify as required under Indiana Code section 31-16-8-l(b). The trial court did not err when it granted Father’s petition to modify his child support modification.

Affirmed.

MATHIAS, J. and CRONE, J„ concur.

      . The statute also allows for the petition to modify to be filed at the same time as the petition to register the foreign order.

      . We note that the trial court made an inadvertent misstatement in the CCS, which caused some confusion in the proceedings. On August 30, 2011, the trial court made a minute entry into the record that stated Father had not yet filed a petition to modify child support and needed to do so before the trial court could consider the matter of modification. Appellant’s App. at S3. The trial court later realized its mistake and corrected it in the order registering the Foreign Order when it stated, "the second court minute entry of 8/30/11 was entered in error. In making the entry, the court was under the belief that a Motion to Modify Child Support had not been filed when it fact, the record shows that [F]ather filed his [petition to modify] on September 15, 2010.” Id. at 12. The trial court's mistake prompted Father to file another petition to modify, which was unnecessary, and did not change the previous, proper filing of the already pending September 15, 2010 petition to modify.


source: Caselaw Access Project

author: BARNES, Judge.

license: Public Domain

text:
    Gersh ZAVODNIK, Appellant-Plaintiff, v. Brian RICHARDS and, Njgolfman.com a/k/a Savva’s Golf Enterprises a/k/a progolfjerseycity@yahoo.com and, Steve Panayiotov, a/k/a Steve Panayiotou, a/k/a Savva Panayiotov, a/k/a Saava Panayiotou, Appellees-Defendants, and Gersh Zavodnik, Appellant-Plaintiff, v. Giselle Guzman, Appellee-Defendant.
    No. 49A02-1209-CC-750.
    Court of Appeals of Indiana.
    March 14, 2013.

      Mark S. O’Hara, Hostetter & O’Hara, Brownsburg, IN, Attorney for Appellant.
    Roy W. Harris, Biesecker Dutkanych & Macer, LLC, Evansville, IN, Attorney for Appellee Giselle Guzman.
   OPINION

BARNES, Judge.

Case Summary

Gersh Zavodnik appeals the dismissal of his lawsuits against Giselle Guzman, Brian Richards, and Steve Panayiotou. We affirm.

Issue

The sole issue is whether the trial court properly dismissed Zavodnik’s lawsuits against Guzman, Richards, and Panayiotou based upon their similarity to previous lawsuits that had been dismissed without prejudice under Indiana Trial Rule 41(E).

Facts

From 2008 through 2010, Zavodnik filed a total of twenty-seven lawsuits against defendants who resided in five different states and ten different countries. Guzman and Richards were defendants in two separate lawsuits; Panayiotou does not appear to have been a defendant in this original batch of suits. These lawsuits were consolidated before Judge Timothy Oakes of the Marion Superior Court. On March 2, 2011, Judge Oakes dismissed without prejudice all twenty-seven lawsuits under Indiana Trial Rule 41(E) for Zavod-nik’s failure to comply with local rules and failure to effect service upon a number of defendants. On March 1, 2012, this court affirmed the dismissal of twenty-four of the lawsuits, including those against Guzman and Richards, while reversing three of the dismissals. Zavodnik v. Gehrt, No. 49A02-1105-CT-393, 2012 WL 697152 (Ind.Ct.App. March 1, 2012).

On April 24, 2012, Zavodnik filed a new lawsuit against Guzman, and on May 11, 2012, he filed a new lawsuit against Richards, though Panayiotou was now named as a co-defendant in that suit. The allegations of the new complaints were the same as those of the originally-dismissed complaints. The new complaints were assigned to Judge David Dreyer of the Marion Superior Court.

On June 12, 2012, Guzman filed a motion to dismiss Zavodnik’s new complaint based on his failure to seek reinstatement of his original complaint before Judge Oakes. On July 11, 2012, Judge Dreyer dismissed with prejudice Zavodnik’s complaint against Guzman. On July 12, 2012, without there having been an answer or motion to dismiss filed by Richards or Panayiotou, Judge Dreyer also dismissed the complaint against them. Judge Dreyer subsequently denied motions to correct error filed by Zavodnik in both cases, and he now appeals.

Analysis

Guzman’s motion to dismiss invoked as its basis Indiana Trial Rule 12(B)(6), failure to state a claim upon which relief may be granted. We review a trial court’s ruling on such a motion de novo. Carter ex rel. CNO Fin. Group, Inc. v. Hilliard, 970 N.E.2d 735, 747 (Ind.Ct.App.2012). We will affirm a trial court’s dismissal of an action if it is sustainable on any basis found in the record. City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind.2001).

Guzman’s motion further alleged that Zavodnik’s filing of an entirely new complaint in a different court than his original action(s) contravened Indiana Trial Rule 41(E) and (F), given that dismissal of the original action occurred under Rule 41(E). Subsections (E) and (F) of Trial Rule 41 state:

(E) Failure to prosecute civil actions or comply with rules. Whenever there has been a failure to comply with these rules or when no action has been taken in a civil case for a period of sixty [60] days, the court, on motion of a party or on its own motion shall order a hearing for the purpose of dismissing such case. The court shall enter an order of dismissal at plaintiffs costs if the plaintiff shall not show sufficient cause at or before such hearing. Dismissal may be withheld or reinstatement of dismissal may be made subject to the condition that the plaintiff comply with these rules and diligently prosecute the action and upon such terms that the court in its discretion determines to be necessary to assure such diligent prosecution.
(F) Reinstatement following dismissal. For good cause shown and within a reasonable time the court may set aside a dismissal without prejudice. A dismissal with prejudice may be set aside by the court for the grounds and in accordance with the provisions of Rule 60(B).

(Brackets in original). Guzman contends that subsections (E) and (F) clearly contemplate that upon Judge Oakes’s dismissal of Zavodnik’s complaint without prejudice under subsection (E) for failure to comply with court rules, Zavodnik was required to petition Judge Oakes for reinstatement of his complaint and could not avoid that requirement by filing an entirely new complaint before a different judge making the same allegations as the original complaint.

Zavodnik argues that the dismissal of his original complaint(s) without prejudice under Trial Rule 41(E) had no res judicata effect and did not hamper his ability to file an entirely new complaint or complaints in a different court, despite his admission on appeal that the new complaints against Guzman, Richards, and Pa-nayiotou “were substantially the same” as the original complaints. Appellant’s Br. p. 1. We accept that dismissal of a complaint without prejudice ordinarily has no res judicata effect, and we will assume there was no such effect here. See Zaremba v. Nevarez, 898 N.E.2d 459, 463 (Ind.Ct.App.2008).

Zavodnik also relies upon Zaremba for the proposition that when a case is dismissed without prejudice, “a party is not prohibited from re-filing a complaint alleging the facts, and seeking the remedies requested in the original case that was dismissed.” Appellant’s Br. p. 3. Zavodnik overstates Zaremba’s holding. In that case, we addressed Indiana Small Claims Rule 10, which provides in part that in the event default judgment is entered, a court may “vacate such judgment ... [ujpon good cause shown” within one year of the default being entered; otherwise, a party must seek to set aside the default through an independent action under Indiana Trial Rule 60(B). The plaintiff in Zaremba had voluntarily requested dismissal of her small claims complaint without prejudice, which the trial court granted, and later refiled the action. The trial court had concluded that the plaintiff was required to seek relief from the dismissal under Trial Rule 60(B) before re-filing the action, but we disagreed and held that the plaintiff was entitled to proceed on her re-filed complaint. Zaremba, 898 N.E.2d at 464-65. Zaremba addressed an entirely different rule than Trial Rule 41, one that contains no procedure or requirements for reinstating a complaint that has been dismissed without prejudice. The Small Claims Rule’s reinstatement procedure only applies to default judgments, not dismissals without prejudice.

Rather than being persuaded by Zarem-ba, we conclude this case bears many similarities to Thacker v. Bartlett, 785 N.E.2d 621 (Ind.Ct.App.2003). In Thacker, a plaintiffs complaint was dismissed under Trial Rule 12(B)(6) for failing to state a cause of action. The plaintiff then filed a second, substantially identical complaint fourteen days later within the same county, which also was dismissed. Although the first dismissal did not operate as res judicata for the second complaint, we affirmed the second dismissal under Trial Rule 12(B)(8), “The same action pending in another state court of this state.” Thacker, 785 N.E.2d at 625. We observed, “When an action is pending before a court of competent jurisdiction, other courts must defer to that court’s extant authority over the ease.” Id. “This rule applies where the parties, subject matter, and remedies of the competing actions are precisely the same, and it also applies when they are only substantially the same.” Id. Under Trial Rule 12(B), a pleading that has been dismissed under Rule 12(B)(6) “may be amended once as of right pursuant to Rule 15(A) within ten [10] days after service of notice of the court’s order sustaining the motion and thereafter with permission of the court pursuant to such rule.” Because of this rule, “Thacker could reanimate his complaint while his new complaint was active in another court, thereby defeating the interests of fairness to litigants, comity between and among courts of this state, and judicial efficiency.” Id. We also noted that by filing a new complaint rather than amending the original complaint, “Thacker was circumventing the authority and discretion of the original trial court.” Id.

Much like Trial Rule 12(B), we conclude that when a trial court has involuntarily dismissed a case without prejudice pursuant to Trial Rule 41(E), subsection (F) of that rule ascribes to the dismissing trial court the discretion to consider whether a complaint should be reinstated. Subsection (E) likewise provides options to a trial court to permit a complaint to proceed, despite rules violations by a plaintiff, in order to control its own docket and courtroom. We also presume that the Indiana Supreme Court, in drafting Trial Rule 41, did not intend to place a nullity in the rule by adding subsection (F)’s explicit procedure for how to go about reinstatement of a complaint dismissed without prejudice. Zavodnik’s position, that such complaints can be re-filed in a different court without following the reinstatement procedure, would render that provision meaningless. By re-filing complaints before Judge Dreyer that were substantially similar, if not identical, to complaints that Judge Oakes had already dismissed, Za-vodnik was improperly attempting to circumvent Judge Oakes’s authority and discretion to decide whether Zavodnik had good cause to reinstate his original complaints). Judge Dreyer apparently recognized this and acted properly in dismissing the re-filed complaints, which dismissal served the interests of fairness to litigants, judicial comity, and judicial efficiency.

We do acknowledge with respect to the complaint against Richards and Pa-nayiotou that they did not file a motion to dismiss; rather, it appears Judge Dreyer dismissed this complaint sua sponte. Ordinarily, “a trial court may not sua sponte dismiss an action unless the court lacks jurisdiction or is otherwise authorized by statute or the rules of procedure.” Tracy v. Morell, 948 N.E.2d 855, 862 (Ind.Ct.App.2011). Regardless, Zavodnik makes no argument that Judge Dreyer could not sua sponte dismiss the complaint against Richards and Panayiotou upon discovering that it suffered from precisely the same, defect as the complaint against Guzman, nor does he argue that there is any significant legal difference between the two complaints that could subject one to dismissal but not the other. We affirm the dismissal of both complaints.

Conclusion

Judge Dreyer acted properly in dismissing both complaints against Guzman, Richards, and Panayiotou. Zavodnik’s only remedy if he wishes to continue to pursue legal action against those parties is to obtain reinstatement of his original complaints before Judge Oakes. We affirm.

Affirmed.

BAKER, J., and RILEY, J., concur.

      . Zavodnik has also listed Panayiotou as a/k/a “Njgolfinan.com,” "Savva’s Golf Enterprises,” “Progoldjerseycity@yahoo.com," "Steve Panayiotov,” “Savva Panayiotov,” or "Sawa Panayitou.”

      . Unfortunately, neither the original nor subsequent complaints have been provided to this court on appeal. However, the motion to dismiss filed by Guzman asserts, and Zavod-nik does not deny, that Zavodnik “attempts to make his living by filing lawsuits,” namely, by filing "suit against individuals who he alleges caused him damages by failing to complete Internet sales purchases...." App. p. 13.

      . Zavodnik does not argue that the addition of Panayiotou as a co-defendant in the new complaint against Richards substantially altered the nature of the complaint.


author: BAILEY, Judge.

text:
    STATE of Indiana, Appellant-Respondent, v. Antonio GONZALEZ-VAZQUEZ, Appellee-Petitioner.
    No. 09A02-1210-PC-792.
    Court of Appeals of Indiana.
    March 27, 2013.
    Gregory F. Zoeller, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Matthew D. Barrett, Matthew D. Barrett, P.C., Logansport, IN, Attorney for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

The State of Indiana appeals the denial of a motion to correct error challenging a grant of summary judgment to Antonio Gonzalez-Vazquez (“Vazquez”) upon his petition for post-conviction relief, which alleged ineffectiveness of trial counsel. We reverse and remand for further proceedings.

Issues

The State presents three issues for review, which we consolidate and restate as the following issues:

I. Whether the post-conviction court erred in excluding the State’s summary judgment response as untimely; and
II. Whether Indiana Trial Rule 56(C) and (I) should be inapplicable to post-conviction proceedings.

Facts and Procedural History

In 2010, Vazquez was convicted of stalking and criminally confining his former girlfriend. See Vazquez v. State, 944 N.E.2d 10, 14 (Ind.Ct.App.2011), trans. denied. He was additionally convicted of theft, and received an aggregate sentence of twenty-six years imprisonment. His convictions were affirmed on direct appeal. See id. at 16.

On June 20, 2011, Vazquez filed a petition for post-conviction relief alleging that his trial counsel was ineffective because of his failure to: adequately investigate, depose witnesses, conduct in-depth client interviews, file pre-trial motions, and make appropriate trial objections. On July 17, 2012, Vazquez filed a motion for summary judgment pursuant to Indiana Trial Rule 56 and Post-Conviction Rule l(4)(g). Therein, he added an allegation that he had “an alibi for part of the allegations” that counsel had ignored. (App. 69.) Vazquez’s motion was served upon the State by certified mail.

On August 20, 2012, the State filed a request for an extension of time in which to file the response to the summary judgment motion. The post-conviction court granted the motion, ordering the State to file a response by August 24, 2012. The State complied by filing a response on August 24, 2012. On August 27, 2012, the post-conviction court denied Vazquez’s motion for summary judgment.

Vazquez subsequently filed a motion for reconsideration of the denial of summary judgment, asserting that the State’s response had been due on August 16, 2012, which was thirty days after receipt of the summary judgment motion via certified mail. According to Vazquez, the State’s August 20, 2012 request for an enlargement of time and the August 24, 2012 response were both untimely.

On September 5, 2012, the post-conviction court granted Vazquez’s motion for reconsideration, concluding that the State had failed to request an enlargement of time within thirty days after the summary judgment motion had been served, pursuant to Indiana Trial Rule 56(1), and that no days could be added to the thirty-day period due to mail service. The post-conviction court struck the State’s response and granted Vazquez summary judgment on his post-conviction claim.

The State then filed its motion to correct error. On September 18, 2012, the parties appeared before the post-conviction court for a hearing. The State contended that the motion for an enlargement of time, made thirty-four days after service, had been timely because the State was entitled to add three days for mail service and the thirty-third day had fallen on a' Sunday. The post-conviction court rejected the State’s argument and refused to set aside the grant of summary judgment. This appeal ensued.

Discussion and Decision

I. Timeliness of Response and Applicability of Trial Rule 6(E)

The State appeals from the denial of its motion to correct error. Rulings on motions to correct error are typically reviewable under an abuse of discretion standard; however we review the matter de novo when the issue on appeal is purely a question of law. Ind. Bureau of Motor Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind.Ct.App.2009).

The motion to correct error ultimately relates back to whether the trial court should consider the State’s response to be timely pursuant to Trial Rule 56 and Trial Rule 6(E). There is no dispute concerning the dates of service or any of the parties’ motions. Accordingly, a legal issue is presented.

Trial Rule 56 provides, in pertinent part:

(C) Motion and proceedings thereon. The motion and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits.
(F) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(I) Alteration of Time. For cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit.

When a non-moving party fails to respond to a motion for summary judgment within thirty days by filing a response, requesting a continuance under Trial Rule 56(1), or filing an affidavit under Trial Rule 56(F), the trial court cannot consider summary judgment filings of that party after the thirty-day period. HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind.2008).

Trial Rule 6(E) provides:

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by United States mail, three [3] days shall be added to the prescribed period.

In post-conviction proceedings, Vazquez relied upon DeLage Landen Fin. Servs., Inc. v. Cmty. Mental Health Ctr., 965 N.E.2d 693 (Ind.Ct.App.2012) (wherein the Court was required to resolve a direct conflict between different rules for time alteration), trans. denied, for the proposition that Rule 56 exclusively controls timing of summary judgment filings. Vazquez asserted, and the post-conviction court agreed, that the import of DeLage is that no provision of Rule 6 could be applicable in summary judgment proceedings. However, we conclude that Vazquez reads DeLage too broadly.

In DeLage, a lessor of copy machines filed a complaint against a lessee and moved for summary judgment on March 15, 2011. The lessee, on May 27, 2011, filed a motion for enlargement of time to respond to the motion for summary judgment, pursuant to Trial Rule 6(B)(2). Id. at 695. The trial court allowed the lessee to file a belated response and denied summary judgment; the lessor appealed. Id. In addressing the conflict between the alteration of time provision of Rule 56(1) and the extension of time provision of Rule 6(B)(2), the Court stated:

When trial rules conflict, we apply the principles of statutory construction under which rules are to be construed together and in harmony when possible.... Thus, when two rules cover the same subject matter and one does so generally where the other does so specifically, the more specific rule prevails .... The parties disagree over which rule — Trial Rule 6 or Trial Rule 56 — is more specific. We recognize, as CMHC has pointed out, that Trial Rule 56 is not one of the rules Trial Rule 6(B)(2) specifically exempts from its operation. However, none of the rules that are specifically exempted from Trial Rule 6(B)(2) have their own enlargement of time provision and would thus be subject to Trial Rule 6(B)(2) without the exemption. Because Trial Rule 56 has its own enlargement of time provision, which applies only to Trial Rule 56 and is therefore the more specific of the two rules, it does not need to be exempted from Trial Rule 6(B)(2) because it is not subject to Trial Rule 6(B)(2) in the first instance. Thus, the fact that CMHC filed a motion for enlargement of time pursuant to Trial Rule 6(B)(2) and the non-movant in HomEq did not is not a pertinent distinction because Trial Rule 6(B)(2) does not apply to summary judgment materials.

Id. at 698 (internal citations omitted).

The DeLage Court reiterated the well-settled rule that a more specific rule will prevail over a general rule in the face of conflict. However, the Court did not suggest that the entirety of Rule 6 conflicts with Rule 56(1). Indeed, the Court stated in its recitation of procedural history: “Pursuant to Trial Rule 56(C), CMHC had thirty days — or until April 18, 2011 including the three-day extension for service by mail — to file a response.” Id. at 695 (emphasis added). The Court specifically referenced Trial Rule 6(E) as the origin of the three-day extension. See also Starks Mech., Inc. v. New Albany-Floyd Cnty. Consol. Sch. Corp., 854 N.E.2d 936, 939-40 (Ind.Ct.App.2006) (recognizing that Trial Rule 6(E) adds three days to the thirty days a non-movant has to file a summary judgment response where service is by mail).

The post-conviction court excluded the State’s response on grounds that Rule 6(E) was inapplicable; this was erroneous as a matter of law and the State’s motion and response were timely. Therefore, the grant of summary judgment must be reversed.

Applicability of Procedural Requirements of Trial Rule 56

Because it may arise on remand, we address the State’s contention that Trial Rule 56(C) and (I) should not be applicable to post-conviction proceedings because “significant prosecutions could be undone without any basis simply because a prosecutor’s office fails to respond in thirty days.” (Appellant’s Br. at 14.) In an effort to differentiate post-conviction proceedings from other civil proceedings, the State observes that Post-Conviction Rule l(4)(g) grants the trial court discretion to consider all pleadings, dispositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits in determining whether a motion for summary judgment has merit, while Trial Rule 56(C) limits consideration to the designated evi-dentiary matter.

In Hough v. State, 690 N.E.2d 267, 269 (Ind.1997), an appeal from a grant of summary judgment to the State in post-conviction proceedings, our Supreme Court has stated: “The summary judgment procedure that is available under Indiana Post-Conviction Rule l(4)(g) is the same as under Trial Rule 56(C).” Under both rules, summary judgment is to be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Ind. Post-Conviction Rule l(4)(g); Ind. Trial Rule 56(C)). The moving party must designate evidence to prove that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law and the burden then shifts to the nonmoving party to show that there is a genuine issue of material fact. Id. Any doubts about the existence of a fact or an inference to be drawn therefrom are to be resolved in favor of the nonmoving party. Id. Upon review, we apply the same standard as the trial court and the party appealing the grant of summary judgment must show the appellate court that the trial court erred. Id.

The Hough court did not contemplate that summary judgment was available to the State but not to the petitioner. We are not in a position to carve out an exception to redress the State’s concern that mere negligence on its part might result in a windfall to a petitioner and a danger to the public.

That said, we do not anticipate that a motion for summary judgment could often be granted to the post-conviction petitioner by default. Generally, post-conviction complaints that something went awry at trial are cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal. Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002). Such allegations of ineffectiveness of counsel and newly discovered evidence are not readily amenable to summary disposition.

Here, for example, Vazquez claimed he was entitled to post-conviction relief because his trial counsel had been ineffective. Ineffectiveness claims are evaluated under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong requires a showing that counsel’s performance fell below an objective standard of reasonableness and the second prong requires a showing that the deficient performance was prejudicial. Hough, 690 N.E.2d at 270. To establish the “prejudice” element, one must show a reasonable probability that, but for the deficient performance, the result would have been different. Id.

We strongly presume that counsel provided adequate assistance and exercised reasonable professional judgment in all significant decisions. McCary v. State, 761 N.E.2d 389, 392 (Ind.2002). Bald assertions of counsel’s omissions or mistakes are inadequate to support a post-conviction claim of ineffectiveness of counsel. Tapia v. State, 753 N.E.2d 581, 587 (Ind.2001). Thus, even though allegations of omissions or mistakes might go unchallenged, the petitioner is still required to make a prima facie showing of prejudice to obtain summary judgment.

Although the State may have a valid concern that a lack of diligent responses in post-conviction proceedings could result in the reversal of some criminal convictions, it would be an extremely rare occasion upon which a petitioner would be able to show an absence of an issue of material fact and further show his entitlement to judgment as a matter of law without a hearing and the presentation of evidence. Indeed, in this particular case, Vazquez focused upon alleged omissions but largely ignored the requirement of showing prejudice. In light of the foregoing, we decline the State’s invitation to hold that it is relieved of the time constraints of Trial Rule 56.

Conclusion

The post-conviction court erred in striking the State’s response as untimely. We reverse and remand for further post-conviction proceedings.

Reversed and remanded.

VAIDIK, J., and BROWN, J., concur.

      . One day after the summary judgment order, the State filed its "Motion to Set Aside Order of Summary Judgment, Motion to Set Aside Reconsideration, and Motion for Hearing.” (App. 428.) The motion did not reference Indiana Trial Rule 60 or identify one of its categories as grounds for setting aside a judgment. It thus appears that, in substance, the State filed a motion to correct error.

      . Because we reverse the summary judgment granting post-conviction relief, we need not address the State's contention that Vazquez failed to meet his burden of proof on the merits of his claim of trial counsel ineffectiveness.

      . Indiana Post-Conviction Rule l(4)(g) provides that summary disposition in a post-conviction proceeding is appropriate when “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”

      . The post-conviction court’s order stated in relevant part: ‘ 'Trial Rule 6(B)(2) does not apply to summary judgment materials.” App. 424 (emphasis in original). However, Trial Rule 6(E) addresses additional time after service by mail.

      . See Indiana Trial Rule 6(A) (providing in relevant part that, in computing any period of time under the rules, the last day will not be included if it is a Saturday, Sunday or legal holiday).

      . Rule 6(B)(2) provides: “When an act is required or allowed to be done at or within a specific time by these rules, the court may at any time for cause shown: upon motion made after the expiration of the specific period, permit the act to be done where the failure to act was the result of excusable neglect; but, the court may not extend the time for taking any action for judgment on the evidence under Rule 50(A), amendment of findings and judgment under Rule 52(B), to correct errors under Rule 59(C), statement in opposition to motion to correct error under Rule 59(E), or to obtain relief from final judgment under Rule 60(B), except to the extent and under the conditions stated in those rules.”


author: MATHIAS, Judge.

text:
    Terrence J. FUQUA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 02A03-1207-CR-342.
    Court of Appeals of Indiana.
    March 27, 2013.

      Anthony S. Churchward, Leonard, Hammond, Thoma & Terrill, Fort Wayne, IN, Attorney for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Kyle Hunter, Deputies Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Terrence Fuqua (“Fuqua”) was convicted in Allen Superior Court of Class A felony dealing in cocaine, Class B felony unlawful possession of a firearm by a serious violent felon, Class D felony possession of a controlled substance, Class D felony dealing in marijuana, and Class A misdemeanor possession of paraphernalia. Fu-qua challenges his convictions and raises two issues on appeal:

I. Whether law enforcement officers had reasonable suspicion to search Fu-qua’s trash; and,
II. Whether the warrant authorizing the search of Fuqua’s residence was supported by probable cause.

We affirm.

Facts and Procedural History

In October 2011, Fort Wayne Detective Darrick Engelman (“Detective Engelman”) interviewed Stephanie McCarter and Donald Stovall, both of whom had been arrested in connection with a cocaine dealing investigation, first separately and then together. McCarter identified Fuqua and James Holman (a.k.a. “Petey”) as her cocaine dealers and told the detective where Fuqua lived. Stovall also stated that Fu-qua was his cocaine dealer. Shortly thereafter, McCarter executed a controlled buy with Holman, who was arrested as a result of that transaction.

On November 7, 2011, another Fort Wayne Detective, Darin Strayer (“Detective Strayer”) received an anonymous phone tip, and the caller reported that she observed Fuqua with a large amount of cash at his residence and a hidden compartment for the money in the floor of the back bedroom. The anonymous tipster also stated that she observed an individual named Petey arrive at Fuqua’s residence with a large amount of cocaine. Because Detective Engelman’s desk is near Detective Strayer’s, Detective Engelman overheard Detective Strayer’s discussion concerning Fuqua, and the two detectives shared their separately acquired knowledge of Fuqua’s activities.

The next day, the detectives drove by Fuqua’s residence to perform surveillance. Fuqua had placed his trash outside near his detached garage to be collected by a garbage service, and other residents in the neighborhood had done the same. Detective Engelman quickly collected two bags of Fuqua’s trash, which the detectives looked through after they returned to their office. In Fuqua’s trash they found crack pipes, three empty boxes of baking soda (which they knew to be useful in processing cocaine into crack cocaine), and several plastic baggies containing a white powdery substance that tested positive for cocaine.

The detectives continued to perform surveillance of Fuqua’s residence and observed activities consistent with narcotics trafficking, such as vehicles arriving at the residence and leaving after just a few minutes and the possibility of pedestrian lookouts. During one such surveillance, the anonymous informant who spoke to Detective Strayer rode with the detectives and identified Fuqua’s residence, Holman, and Holman’s residence.

On November 22, 2011, Detective Stray-er applied for and obtained a warrant to search Fuqua’s residence. During execution of the warrant, law enforcement officers discovered significant amounts of cocaine, marijuana, scales, plastic baggies, large amounts of cash, paraphernalia and a firearm. Fuqua was charged with Class A felony dealing in cocaine, Class B felony unlawful possession of a firearm by a serious violent felon, Class D felony possession of a controlled substance, Class D felony dealing in marijuana, and Class A misdemeanor possession of paraphernalia.

Fuqua filed a motion to suppress all evidence seized during the execution of the search warrant arguing that the affidavit accompanying the warrant failed to state sufficient facts to establish probable cause and the trash search was not supported by reasonable suspicion. Fuqua’s motion was denied, as was his request for certification of an interlocutory order for the purposes of appeal.

A bench trial was held on June 14, 2012, and the trial court found Fuqua guilty as charged. Fuqua was ordered to serve an aggregate forty-year sentence in the Department of Correction. Fuqua now appeals.

Standard of Review

Questions regarding the admission of evidence are left to the sound discretion of the trial court, and on appeal, we review the court’s decision only for an abuse of that discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind.Ct.App.2009), trans. denied. The trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Id. Our review of rulings on the admissibility of evidence is essentially the same regardless of whether the challenge is made through a pretrial motion to suppress or by an objection at trial. Jackson v. State, 890 N.E.2d 11, 15 (Ind.Ct.App.2008). We will not reweigh the evidence, and we consider conflicting evidence in a light most favorable to the trial court’s ruling. Id. However, we also consider any undisputed evidence that is favorable to the defendant. Id. Additionally, we may consider foundational evidence introduced at trial in conjunction with any evidence from a suppression hearing that is not in direct conflict with the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind.Ct.App.2005).

I. Trash Search

Although the search and seizure provision found in Article I, Section 11 of the Indiana Constitution tracks the Fourth Amendment verbatim, our jurisprudence has focused on whether the actions of the government were “reasonable” under the “totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005). In some cases, Article I, Section 11 confers greater protections to individual rights than the Fourth Amendment affords. Holder v. State, 847 N.E.2d 930, 940 (Ind.2006); Litchfield, 824 N.E.2d at 358-59. For this reason, in Litchfield, our supreme court held:

A search of trash recovered from the place where it is left for collection is permissible under the Indiana Constitution, but only if the investigating officials have an articulable basis justifying reasonable suspicion that the subjects of the search have engaged in violations of law that might reasonably lead to evidence in the trash.

824 N.E.2d at 357.

The court set out a two-part test for determining whether a trash search is reasonable. First, the “trash must be retrieved in substantially the same manner as the trash collector would take it.” Id. at 363. Second, the search must be based on an “articulable individualized suspicion that illegal activity is or has been taking place, essentially the same as is required for a ‘Terry stop’ of an automobile.” Id. at 364. Fuqua does not contest the manner in which his trash was seized, but argues solely that the detectives lacked reasonable suspicion to search his trash.

The reasonable suspicion determination is reviewed de novo on appeal. Teague v. State, 891 N.E.2d 1121, 1128 (Ind.Ct.App.2008). Reasonable suspicion exists if the facts known to the officer and the reasonable inferences therefrom would cause an ordinarily prudent person to believe that criminal activity has or is about to occur. State v. Lefevers, 844 N.E.2d 508, 515 (Ind.Ct.App.2006), trans. denied. “Although reasonable suspicion requires more than inchoate and unparticularized hunches, it is a less demanding standard than probable cause and requires considerably less proof than that required to establish wrongdoing by a preponderance of the evidence.” Id.; see also Washburn v. State, 868 N.E.2d 594, 598 (Ind.Ct.App.2007) (stating that reasonable suspicion requires at least a minimal level of objective justification and must be based on more than an inchoate and unparticularized suspicion or “hunch” of criminal activity), trans. denied. A determination of reasonable suspicion is made on a case-by-case basis by looking at the totality of the circumstances. Lefevers, 844 N.E.2d at 515.

Detectives Engelman and Strayer suspected that Fuqua was dealing cocaine after Detective Engelman interviewed McCarter and Stovall, who were arrested in connection with a cocaine dealing investigation, and after Detective Strayer received the anonymous tip about the drug activities of Holman and Fuqua. Fuqua argues that the informants’ statements lacked credibility, and the informants’ and anonymous tipster’s statements were uncorroborated on the date of the trash pull. Ultimately, Fuqua claims that “it cannot be said that [the detectives] possessed any reasonable suspicion to justify” the trash pull. Appellant’s Br. at 18.

Fuqua correctly observes that “an anonymous tip is not enough to support the reasonable suspicion necessary for a ‘Terry ’ stop.” Wells v. State, 772 N.E.2d 487, 490 (Ind.Ct.App.2002) (citation omitted). Instead, “[ajnonymous tips must be accompanied by specific indicia of reliability or must be corroborated by a police officer’s own observations to pass constitutional muster.” Id. Our courts have specifically concluded that an anonymous tip, by itself, without further corroboration, will not support a finding of reasonable suspicion to support a trash search. See, e.g., Sellmer v. State, 842 N.E.2d 358, 361 (Ind.2006); Richardson v. State, 848 N.E.2d 1097, 1103 (Ind.Ct.App.2006), trans. denied.

However, “a tip from an identified and known informant can provide reasonable suspicion of criminal activity to justify a Terry stop when there are sufficient indicia of reliability.” Membres v. State, 889 N.E.2d 265, 281 (Ind.2008).

The indicia of reliability for a tip can be established in a number of ways, including whether: (1) the informant has given correct information in the past, (2) independent police investigation corroborates the informant’s statements, (3) some basis for the informant’s knowledge is demonstrated, or (4) the informant predicts conduct or activity by the suspect that is not ordinarily easily predicted.

Id.

In this case, the anonymous informant told Detective Strayer that she was at Fuqua’s residence on November 6, 2011. She referred to Fuqua by his first name and gave his physical description. The informant stated that Fuqua retrieved approximately $10,000 in cash from an area in the floor underneath a speaker. The informant also stated that Fuqua kept money in a kitchen cabinet in a Walmart bag. She told the detective that “Petey” also arrived at Fuqua’s home that day with a black garbage bag containing what she believed to be large amounts of cocaine. Mot. to Suppress Hearing Tr. p. 42. The informant tried to provide “Petey’s” address, but gave the incorrect house number. The officers believed that “Petey” was actually James Holman. Id. at 43. A few weeks prior, Detective Strayer had been involved in a controlled buy at Holman’s residence. Id. at 44.

But the trash pull was not based solely on the anonymous tip. On October 13, 2011, a few weeks prior to the tip, Detective Engelman interviewed Stephanie McCarter and Donald Stovall, who had been arrested in connection with a cocaine dealing investigation. McCarter identified Fuqua and Holman as her cocaine dealers. She stated that Fuqua and Holman worked together and that they were close friends. Id. 22. McCarter and Stovall, who were romantically involved, were initially interviewed separately. McCarter was cooperative with the detective and agreed to assist in the dealing investigation. McCarter gave Detective Engelman information that was consistent with information known to the detective prior to McCarter’s arrest. Id. at 16. McCarter admitted to dealing cocaine and told the detective that her suppliers were Fuqua and Holman. McCarter was not jailed on October 13 because she agreed to become a confidential informant. A few days later, McCarter successfully set up and executed a controlled buy with Holman, who was arrested as a result of that transaction.

Separately, Stovall also told Detective Engelman that he “could purchase cocaine from Terrence Fuqua.” Id. at 17. Like McCarter, Stovall was cooperative and provided information to the detective that was consistent with information obtained during the detective’s cocaine dealing investigation. Detective Engelman testified that Stovall was likely cooperating in exchange for leniency on his case. Id. at 18. The detective had previously interviewed Stovall on several occasions concerning other investigations and had promised him leniency in the past. Detective Engelman stated that he made no “suggestion[ ] about how lenient [the detective] might be with reference to his case” and that Stovall knew he would be going to jail that day. Id. at 19.

After Detective Engelman overheard portions of Detective Strayer’s November 7, 2011 phone call with the anonymous informant, the detective shared the information he received from McCarter and Stovall. The next day, the detectives performed the trash search at issue in this appeal.

McCarter and Stovall told the detective that Fuqua was their cocaine dealer, demonstrating a basis for their knowledge of Fuqua’s illegal activities. McCarter also successfully completed a controlled buy from Holman, who was alleged to be Fu-qua’s partner; therefore, the detectives were able to corroborate important information supplied by McCarter.

The detectives shared and compiled the information received from the anonymous informant, McCarter, and Stovall prior to searching Fuqua’s trash. The anonymous tipster’s statements were consistent with those provided by Stovall and McCarter. Detective Engelman’s dealing investigation revealed information leading to McCarter’s and Stovall’s arrest. The information relayed to the detectives by all three informants was enough for the detectives to reasonably suspect that Fuqua was engaged in criminal activity. Given the totality of these circumstances, the trash search in this case was constitutionally permissible.

II. Probable Cause

Fuqua also argues that there was “no probable cause to serve [as] a basis for the search warrant as the informants relied upon were not credible.” Appellant’s Br. at 20. A warrant and its underlying affidavit must comply with the Fourth Amendment prohibition on unreasonable searches and seizures, as well as Indiana constitutional and statutory law. Gray v. State, 758 N.E.2d 519, 521 (Ind.2001). The constitutional principles of Article I, Section 11 and the Fourth Amendment are codified in Indiana Code section 35-33-5-2, which details the information to be contained in an affidavit for a search warrant.

The issuance of a search warrant must be supported by probable cause. Mehring v. State, 884 N.E.2d 371, 376 (Ind.Ct.App.2008), trans. denied. “Probable cause is a ‘fluid concept incapable of precise definition ... [and] is to be decided based on the facts of each case.’ ” Id. “In deciding whether to issue a search warrant, the issuing magistrate’s task is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place.” Casady v. State, 934 N.E.2d 1181, 1188-89 (Ind.Ct.App.2010), trans. denied.

The duty of a reviewing court is to determine whether the issuing magistrate had a substantial basis for concluding that probable cause existed. Id. at 1189. We review the question de novo, but give significant deference to the issuing magistrate’s determination and focus on whether reasonable inferences drawn from the totality of the evidence support the finding of probable cause. Id. “In determining whether an affidavit provided probable cause for the issuance of a search warrant, doubtful cases are to be resolved in favor of upholding the warrant.” Id. “Probable cause to search a premises ‘is established when a sufficient basis of fact exists to permit a reasonably prudent person to believe that a search of those premises will uncover evidence of a crime.’ ” Helsley v. State, 809 N.E.2d 292, 295 (Ind.2004) (citations omitted).

Fuqua challenges the probable cause finding by reiterating his argument that the anonymous informant’s and confidential informants’ hearsay statements were not reliable and credible. Where a warrant is sought based on hearsay information, the affidavit must either: (1) contain rehable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or (2) contain information that establishes that the totality of the circumstances corroborates the hearsay. State v. Spillers, 847 N.E.2d 949, 953-54 (Ind.2006) (citing Ind. Code § 35-33-5-2(b)(1) and (2)). The trustworthiness of hearsay for the purpose of proving probable cause can be established in several ways, including where: (1) the informant has given correct information in the past, (2) independent police investigation corroborates the informant’s statements, (3) some basis for the informant’s knowledge is demonstrated, or (4) the informant predicts conduct or activity by the suspect that is not ordinarily easily predicted. Id. (citation omitted). However, these examples are not exclusive, and “[djepending on the facts, other considerations may come into play in establishing the reliability of the informant or the hearsay.” Id.

With regard to anonymous sources, our supreme court has stated:

Use of anonymous informants to establish probable cause often presents heightened reliability concerns. Because there is no possibility of criminal liability for filing a false police report, the informant has no incentive to be truthful. Anonymity effectively shields from scrutiny any possible ulterior motives; the situation is rife with the potential for pranks and mischief. Accordingly, some corroboration of the accusations is all the more essential when the informant is anonymous. At the same time, anonymous tips can provide important information enabling police to apprehend suspects who otherwise might escape detection. A balance must be struck between these considerations. As Gates put it: “While a conscientious assessment of the basis for crediting [anonymous] tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.”

Jaggers v. State, 687 N.E.2d 180, 182-83 (Ind.1997) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)) (other citations omitted).

Most important in this case, the anonymous and confidential informants statements that Fuqua was dealing cocaine are corroborated by the evidence the detectives discovered during the trash pull. As stated in the probable cause affidavit, the detectives found

two glass pipes, which are referred to as crack pipes or narcotics paraphernalia. Three separate empty boxes of Arm and Hammer baking soda. Baking soda is commonly used in cooking powdered cocaine into crack cocaine. Finding three separate empty boxes of baking soda is consistent with someone preparing large quantities of crack cocaine.
Also in the trash were several clear plastic sandwich baggies and also an empty box of sandwich baggies. Several of the sandwich baggies had [ ] a white residue in it that field-tested positive for cocaine.

Ex. Vol., State’s Ex. 1.

Also, the detectives personally observed activity consistent with drug dealing during their surveillance of Fuqua’s residence. They saw two men walking back and forth on the street between Fuqua’s residence and nearest street corner, and, based on their experience and training, believed that the two men were acting as lookouts. Also, the detectives observed that on separate occasions, when two vehicles arrived at Fuqua’s residence, a driver or passenger of each vehicle entered Fuqua’s home and left the residence less than ten minutes later. The detectives believed this activity was consistent with drug dealing. Another vehicle parked in front of Fuqua’s residence was registered to an individual who had a record of drug arrests. The detectives also observed Fuqua’s presence at the residence.

The anonymous informant and McCar-ter stated that Fuqua and Holman (a.k.a “Petey”) were partners in dealing cocaine. Their statements were corroborated at least in part by the detective’s observation of Holman’s presence at Fuqua’s home. The detectives also saw Fuqua drive away in the vehicle that Holman arrived in. Finally, Detective Engelman corroborated the informants’ statements that Holman was a cocaine dealer. As recounted in the probable cause affidavit, the detective conducted a controlled buy with Holman where a confidential informant purchased 4.3 grams of crack cocaine from Holman on October 20, 2011.

The evidence from the trash pull and the detectives’ personal observations corroborate important information provided by the anonymous and confidential informants. Therefore, the detectives took the necessary steps to establish the reliability and credibility of the informants. We conclude that the totality of the circumstances personally known to the detectives (as described in the affidavit) sufficiently corroborated the informants’ hearsay statements. Under the facts and circumstances before us, the search warrant was supported by probable cause. For this reason, the trial court did not abuse its discretion when it admitted the evidence seized during the execution of the search warrant for Fu-qua’s residence.

Conclusion

We conclude that the investigating detectives had reasonable suspicion to search Fuqua’s trash, and that the subsequent search warrant was supported by probable cause. For this reason, the trial court acted within its discretion when it admitted evidence seized during execution of the search warrant.

Affirmed.

KIRSCH, J., and CRONE, J., concur.

      . We held oral argument in this case at Hamilton Southeastern High School in Fishers, Indiana on March 13, 2013. We thank the administration, faculty, students, and staff for their hospitality.

      . There is no evidence in the record that the detectives obtained any identifying information regarding the anonymous informant during the "ride along.”

      . However, Detective Engelman also testified that there is now a warrant for McCarter's arrest because "she didn’t follow through on evidencing that she agreed to do as a confidential informant.” Tr. p. 30.

      . We note that the law enforcement officer’s affidavit in support of the search warrant application contained a significant omission that should have been disclosed: namely, the fact that the confidential informants cited in the affidavit had been arrested for cocaine dealing and faced criminal prosecution. A magistrate should know of the potential bias resulting from such fact when making the decision whether to issue a search warrant. Here, because of the remaining facts set forth in the affidavit were sufficient, the omission was not material. In another case, it may be.