MEMORANDUM DECISION
Brown, Judge.
[1] Carol Church (“Wife”) appeals the trial courts orders denying her motion to modify child support and finding her in contempt. We affirm.
Facts and Procedural History
[2] Wife and Steven Church (“Husband”) were married in September 2000 and adopted two children during the marriage. In February 2020, Wife filed a petition for dissolution. In March 2020, the State charged Husband under cause number 49D30-2003-F1-10092 (“Cause No. 92”) with several counts of attempted child molesting and child molesting. On October 29, 2021, Wife and Husband entered into a settlement agreement regarding the division of marital property and child support. With respect to the division of property, the agreement provided in part that Wife “shall be the sole owner of the marital residence,” “pay to Husband the sum of $39,800.00 within six (6) months of the Decree, as his share of the equity in the home,” and “remove Husbands name from the mortgage within six (6) months of the Decree,” and Husband “shall execute a Quit Claim Deed within ten (10) days of receiving same from Wifes counsel.” Appellants Appendix Volume II at 26. The agreement also provided:
Child Support. The parties agree to deviate from the Indiana Child Support Guidelines and that a deviation is in the best interests of the Children based upon the parties’ agreement. Wife currently receives $1,900.00 per month adoption subsidy for the two minor children and Wife will be claiming both children for state and federal tax purposes each year. In addition, if Husband is incarcerated as a result of the pending criminal charges, he will in all likelihood be unable to pay child support during the duration of their minority. There also is no retroactive child support due as Husband has been paying the monthly mortgage payment during the pendency of this matter.
Id. at 31. The court issued a decree of dissolution of marriage, signed by the court on October 31 and stamped as filed on November 1, 2021, which provided that the settlement agreement was “ratified, approved, and made a part of this Decree” and that the parties were bound by the terms of the agreement “as an Order of this Court.” Id. at 23.
[3] In July 2022, Husband filed a motion for rule to show cause alleging that Wife had not paid him $39,800 as ordered. In August 2022, Wife filed a motion to modify child support alleging that a settlement agreement was entered “on or about November 1, 2021 which is the most recent support order issued by this Court,” “[s]aid Order requires that [Husband] pay [Wife] the sum of $0.00 dollars per week as child support,” and that, “since the entry of the Order,” Husbands financial circumstances had changed. Id. at 43. In Cause No. 92, Husband was found guilty of two counts of attempted child molesting as level 1 felonies, five counts of child molesting as level 4 felonies, and invasion of privacy as a class A misdemeanor and, on April 20, 2023, he was sentenced to an aggregate term of 118 years with six years suspended to probation.
1
On April 21, 2023, Wife filed a motion for relief from judgment requesting the court to relieve her of her obligation to pay Husband pursuant to the terms of the settlement agreement. On April 24, she filed a motion for rule to show cause alleging that, following the decree, a deed was executed but was later determined to be defective,
2
a new deed was submitted to Husbands counsel, and she had not received the new executed deed from Husband.
[4] On April 25, 2023, the court held a hearing at which Husbands counsel argued that the $39,800 equalization payment was freely negotiated and, at the time of the agreement, the charges against Husband were pending. On April 28, 2023, the court issued an order finding Wife in contempt for failing to pay $39,800 to Husband, finding Husband in contempt for failing to execute a quitclaim deed for the marital residence, and stating that no sanctions were ordered. The court also granted Wifes motion for relief from judgment “in part only to the extent that [Wife] is hereby relieved from the six (6) month time period during which [she] was to pay $39,800.00” and “[f]inal orders on the payment of the sum will be determined at the Modification of Child Support hearing.” Id. at 65.
[5] On October 12, 2023, the court held a hearing on Wifes request to modify child support. Husband testified regarding his work and earnings prior to his incarceration, the amounts in his accounts and the value of his investments, the value of his vehicle which his daughter was driving, and his income and expenses while incarcerated. He testified that he hired counsel which cost about $40,000 and: “I borrowed the money. And so when I get the money from the equity of the house I plan on paying it back.” Transcript Volume II at 37. Wife testified regarding her work and earnings as a teaching assistant, her costs related to the children, the monthly adoption subsidy she received through the State, and a retirement benefit she received.
3
On cross-examination, when asked “do you have the $38,600 [sic],” Wife replied “[n]o, I do not,” and when asked what happened to the money, she answered “I paid the house off with the money and began trying to save the money, but I have not been able to.” Id. at 52. When asked “[d]id you ever have the money,” she stated “I had part of it. The life insurance money from my sister,” which was $27,000. Id. at 53. When asked “you took that money to pay down the home loan, or pay off the mortgage rather than abide by the terms of the decree and pay that money to [Husband], correct,” she answered, “[t]he plan was -- yes.” Id. at 53-54. She indicated the home was “paid for completely” and was worth about $250,000. Id. at 54. Wifes counsel argued that any money or asset available to Husband should be allocated to support the children. Husbands counsel argued that the marital property settlement and child support were freely negotiated two years earlier and there had been no substantial change in circumstances.
[6] On October 30, 2023, the court issued an order. The court ordered Wife “to make the equalization payment of $39,800 to [Husband] within 90 days” and stated: “[Husband] has requested that the payment be held in [his] counsel[’s] law firm Trust Account and the Court orders the same.” Appellants Appendix Volume II at 80-81. The order further provided:
10. Prior to his incarceration, [Husband] worked as a financial advisor and earned approximately $100,000 annually. ․ Currently, the only wage income [Husband] is earning is $22 per month as a consequence of enrollment in a DOC program. Those earnings will cease in late November, 2023 when the 90[-]day program is complete.
11. [Husband] currently has approximately $38,000 in the following other assets: Principle Blue Chip Account valued at $8,000; Principle 401K valued at $20,000; Principle Annuity valued at $5,000; and a vehicle valued at $5,000. [Husband] possessed these assets at the time of the Settlement Agreement and Dissolution. No evidence was offered regarding whether [Husband] receives monthly or annual earnings from these other assets.
12. [Husband] currently has a personal outstanding loan in the amount of $40,000 which was taken following his child molest conviction in order to fund his appeal of the same. Therefore, [Husbands] current debt is greater than his current assets.
13. [Wife] has an annual income of approximately $49,000, which includes earnings from employment as well as Adoption Assistance Payments for the children.
14. [Wife] argues that the resolution of the criminal matter, [Husbands] conviction, and [Husbands] incarceration constitute a substantial and continuing change of circumstances which warrants a modification of child support. [Husband] disagrees.
15. [Wife] argues that the Court should consider [Husbands] aforementioned other assets, which total $38,000, as well as the equalization payment of $39,800 which has yet to be paid by [Wife] to [Husband], and value [Husbands] total other assets at $77,800.
16. [Wife] proposes that [Husband] be credited with an annual income of $77,800, which should be divided by 52 (weeks), to establish a weekly income for purposes of a weekly child support calculation. [Husband] disagrees.
17. While the Court understands [Wifes] frustration, [she] is bound by the terms of the Settlement Agreement and Dissolution regarding the equalization payment. Because the equalization payment has not been paid at this time, the Court does not consider the equalization payment amount as an asset of [Husband].
18. The Court rejects [Wifes] request that [Husbands] other assets be calculated as an annual income which can be divided into a weekly income for purposes of determining a weekly child support obligation. ․
19. The Court finds that the resolution of the criminal matter, [Husbands] conviction, and [Husbands] incarceration do not constitute a substantial and continuing change of circumstances which warrants an upward modification of the current child support order of $0. Clark v. Clark, [902 N.E.2d 813 (Ind. 2009).]
20. While the original child support order is greater than 12 months old, the Court, having rejected [Wifes] method of calculation of weekly child support, finds that a child support obligation which differs more than 20% from the current $0 order has not been shown or demonstrated by [Wife].
21. The Court denies [Wifes] request for modification of child support.
Id. at 81-83.
Discussion
[7] Wife asserts that Husbands incarceration constituted a substantial and continuing change of circumstances supporting her request to modify child support and that Husband has available assets. She also argues that contempt was not an appropriate remedy to enforce an obligation for the payment of a fixed sum of money.
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[8] We review the denial of a petition to modify child support under the clearly erroneous standard. Tirey v. Tirey, 806 N.E.2d 360, 363 (Ind. Ct. App. 2004), trans. denied. The trial courts decision will be reversed only where it is clearly against the logic and effect of the facts and circumstances before the trial court. Id. We do not reweigh evidence or judge witness credibility. Id. We consider only the evidence most favorable to the judgment together with the reasonable inferences that can be drawn from that evidence. Id. The party seeking modification bears the burden of proving a substantial change in circumstances justifying modification. Id.
[9] Ind. Code § 31-16-8-1 provides:
(a) Provisions of an order with respect to child support ․ may be modified or revoked.
(b) Except as provided in section 2 of this chapter, and subject to subsection (d), modification may be made only:
(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.
* * * * *
(d) Incarceration may constitute a change in circumstances so substantial and continuing as to make terms of an order unreasonable.
[10] To the extent Wife does not challenge the courts findings of fact, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to challenge findings by trial court resulted in waiver of argument that findings were clearly erroneous), trans. denied; McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (when the father failed to challenge specific findings, the court accepted them as true).
[11] Wife cites Clark v. Clark, 902 N.E.2d 813 (Ind. 2009), which held that incarceration may serve as a changed circumstance so substantial and continuing as to make the terms of a support order unreasonable under Ind. Code § 31-16-8-1. The Court observed that the denial of the incarcerated parents petition to modify a support order “would thwart the goal of having child support obligations reflect the present earning capacity of parents.” 902 N.E.2d at 817. Further, Indiana courts have the authority to consider the financial circumstances and net worth of parents in addition to their incomes when calculating child support. Gardner v. Yrttima, 743 N.E.2d 353, 358-359 (Ind. Ct. App. 2001) (holding an inheritance may amount to a substantial and continuing change in circumstances sufficient to trigger modification of child support order); see Merrill v. Merrill, 587 N.E.2d 188, 190 (Ind. Ct. App. 1992) (“Evidence of a parents net worth and assets are relevant subjects of inquiry in a proceeding to establish or modify child support.”).
[12] Here, the dissolution decree did not require Husband to pay child support and specifically referred to his possible incarceration. Moreover, the parties entered into the settlement agreement, which was adopted by the court, governing the division of the marital property including the award of the marital home to Wife and a payment by Wife to Husband of $39,800 for his share of the equity in the home. They agreed that Husband would own a GMC SUV, that the parties had previously divided any joint accounts and would retain their individual accounts, and that they would each retain as their separate property any retirement and investments accounts in their sole names. Husbands possible incarceration and the division of the marital property, including the $39,800 payment, were specifically contemplated by the settlement agreement. Wife does not show that Husband acquired the amounts in his investments and retirement accounts, or his right to the $39,800 payment representing his share of the equity in the marital home, after the entry of the dissolution decree or due to or after his incarceration. The court issued findings regarding the value of Husbands assets, the loan he obtained to pay legal fees, and his earnings while incarcerated, which the court found were $22 per month and would stop in November 2023. Wife does not challenge the courts finding that Husband owned the assets identified by the court at the time of the settlement agreement and dissolution or its finding that no evidence was offered that he received earnings from the assets. We cannot say that Wife made a showing of changed circumstances supporting a modification or that the trial courts order was clearly erroneous.
[13] As for Wifes assertion that contempt was not an appropriate remedy, whether a party is in contempt of court is a matter within the trial courts discretion. J.M. v. D.A., 935 N.E.2d 1235, 1243 (Ind. Ct. App. 2010), rehg denied. Because of the prohibition against imprisonment for debt, the Indiana Supreme Court has held that “all forms of contempt are generally unavailable to enforce an obligation to pay money.” Cowart v. White, 711 N.E.2d 523, 531 (Ind. 1999) (emphasis added), clarified on rehg on other grounds, 716 N.E.2d 401 (1999). However, Ind. Code § 31-15-7-10 provides that, “[n]otwithstanding any other law, all orders and awards contained in a dissolution of marriage decree ․ may be enforced by [ ] contempt[.]” Although “[t]his statute is certainly subject to the constitutional prohibition on imprisonment for debt,” there is no other bar “․ to the use of sanctions other than imprisonment.” Cowart, 711 N.E.2d at 531. Wife testified that, rather than make the payment to Husband as ordered, she paid off the mortgage on the marital residence. The court did not order imprisonment or impose any sanction. The trial court acted within its discretion.
[14] For the foregoing reasons, we affirm the trial court.
[15] Affirmed.
FOOTNOTES
1
. See Church v. State, 23A-CR-1035, 2023 WL 8915851 (Ind. Ct. App. Dec. 27, 2023), rehg denied, transfer sought and pending.
2
. At the October 12, 2023 hearing, Wifes counsel stated “that deed was first -- when it was first signed, my understanding the issue it was a defective deed because of Steves name being -- Stevens name being Steve” and “[i]t was a signature issue.” Transcript Volume II at 27.
3
. Wife stated: “I do get about $700 from my late husband from his 401K and his pension.” Transcript Volume II at 64.
4
. Wife does not argue that the court erred in ruling on her motion for relief from judgment.
Memorandum Decision by Judge Brown
Judges Riley and Foley concur.
Riley, J., and Foley, J., concur.