Mathias, J.
Tina and Scott Carmer’s marriage was dissolved in the Marion Superior Court. Tina appeals the dissolution decree raising five issues, which we consolidate and restate as:
I. Whether the trial court abused its discretion when it failed to include Scott’s annuity income in the child support calculation;
II. Whether the trial court erred in interpreting the parties’ prenuptial agreement and deviating from that agreement; and
III. Whether the trial court abused its discretion in its division of the marital liabilities.
We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
….
In its calculation of his weekly gross income, the trial court did not include the $6,500 monthly payments Scott receives from his Structured Settlement Agreement. See Ex. Vol., Petitioner’s Ex. 1. The trial court declined to include these funds in its calculation of Scott’s weekly gross income:
by virtue of the Structured Settlement Protection Act and Section 104(a)(2) of the Internal Revenue Code which states: “gross income does not include . . . the amount of any damage received (whether by suit or agreement and whether as lump sums or as periodic payments on account of personal injuries or sickness.)”
Appellant’s App. p. 9.
However, the Indiana Child Support Guidelines provide a broader definition of income than the Internal Revenue Code. See Commentary to Ind. Child Supp. G. 3(A) (explaining that “in calculating weekly gross income, it is helpful to begin with total income from all sources. This figure may not be the same as gross income for tax purposes”); Harris v. Harris, 800 N.E.2d 930, 939 (Ind. Ct. App. 2003) (stating “the definition of ‘weekly gross income’ is broadly defined to include not only actual income from employment, but also potential income and imputed income from ‘in-kind’ benefits”), trans. denied. Scott’s settlement funds benefitted the family during the marriage and would have continued to benefit the family had it remained intact.
In Knisely v. Forte, 875 N.E.2d 335, 340 (Ind. Ct. App. 2007), our court held that payments for personal injury may be included in the gross weekly income calculation. Also, Guideline 3(A) includes income from annuities in the definition of weekly gross income. While structured settlement payments are not specifically included in the Guidelines’ definition of gross income, both annuities and structured settlement payments are certain sums of money paid periodically or yearly. See Black’s Law Dictionary 1582 (10th ed. 2014) (defining a structured settlement as a party’s agreement to pay periodic sums to the opposing party for a specified time or “those which provide for an initial cash payment followed by deferred payments in future years, normally on some annuity basis”).
For these reasons, we conclude that the trial court erred when it failed to include Scott’s structured settlement payments in its calculation of his weekly gross income. We therefore remand this case to the trial court to include the structured settlement payments in its calculation of Scott’s gross income or to provide justification for deviating from the Guidelines if the court declines to do so. See Commentary to Child Supp. G. 3(B) (stating “[w]hen the court deviates. from the Guideline amount, the order or decree should also include the reason or reasons for the deviation”).
….
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
May, J., concurs.
Robb, J., concurs in result in part with opinion.
Robb, Judge, concurring in result in part.
I write separately to address only the first issue: whether the trial court abused its discretion when it failed to include Scott’s monthly structured settlement payments as income in the calculation of child support. The majority holds the trial court abused its discretion when it failed to include Scott’s monthly structured settlement payments in calculating his weekly gross income, citing the definition of “weekly gross income” in Indiana Child Support Guideline 3(A) and the decision in Knisely v. Forte, 875 N.E.2d 335 (Ind. Ct. App. 2007), that a personal injury settlement may be included in the weekly gross income figure. See slip op. at ¶ 15.
I agree with the majority that Guideline 3(A) defines weekly gross income as “income from any source,” and that it is a broader definition than the Internal Revenue Code definition of gross income, on which the trial court relied in excluding Scott’s structured settlement payments from his weekly gross income. However, I do not believe Knisely is particularly helpful in determining whether Scott’s structured settlement payments are includable in his weekly gross income….
….
Because the trial court’s decision was based on an improper legal standard, and subject to the caveat that the trial court should have the leeway on remand to make an “innovative” determination regarding the inclusion or exclusion in whole or in part of Scott’s structured settlement payments, I concur in result as to the child support issue. As to the remainder of the opinion, I concur in full.