MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 26 2015, 10:02 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE RICK Eric D. Orr L. BARNES Berne, Indiana Marylyn K. L. Ernsberger Ernsberger & Helmer, P.C. Angola, Indiana ATTORNEYS FOR APPELLEE STATE OF INDIANA Gregory F. Zoeller Attorney General of Indiana
Frances Barrow Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Beth Marquardt, February 26, 2015
Appellant, Court of Appeals Case No. 90A02-1406-JP-410 v. Appeal from the Wells Circuit Court The Honorable Kenton W. Kiracofe, Rick L. Barnes, Judge
Cause No. 90C01-1309-JP-25 and
State of Indiana, Appellees.
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 1 of 22 Brown, Judge.
[1] Beth Marquardt (“Mother”) appeals the trial court’s order modifying child
support. Mother raises three issues, which we revise and restate as whether the
trial court abused its discretion or erred in determining the weekly child support
obligation of Rick L. Barnes (“Father”). We affirm in part, reverse in part, and
remand.
Facts and Procedural History
[2] Mother and Father are the parents of M.B., who was born in August 2012.
Mother and Father lived together for approximately six months after M.B. was
born. On September 6, 2013, the Wells County Child Support Office (the
“State”) filed a petition to establish paternity for M.B., and in November 2013 a
stipulation of paternity was filed. The State filed a motion for collateral hearing
on December 5, 2013, and the court held a hearing on May 2, 2014. 1 Father
testified regarding his income, the cost of health insurance, that he paid seventy-
five dollars per week to Mother in support since the day he and Mother no
longer lived together, and that he had a legal duty for two other children.
1 We note that the September 6, 2013 petition and the December 5, 2013 motion are not included in the appellant’s appendix. See Ind. Appellate Rule 50(A)(2)(f) (providing that the appellant’s appendix shall contain “pleadings and other documents . . . that are necessary for resolution of the issues raised on appeal”).
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 2 of 22 Mother testified regarding, among other things, her tanning salon business, her
rental property, her living arrangement, and her child care situation.
[3] In an order file-stamped May 13, 2014, the court ordered that the parties have
joint legal custody of M.B. and that Mother have physical custody of M.B. The
court further ordered that Father “shall have 1 overnight every other weekend”
and that “Mother shall always have the child every Christmas day with Father
having every Christmas Eve unless otherwise agreed upon.” Appellant’s
Appendix at 5. The court ordered that, pursuant to an attached child support
worksheet, Father was to pay support for M.B. in the amount of seventy-four
dollars per week from February 22, 2013 until May 1, 2014, and that, pursuant
to a second attached worksheet, Father’s support order of seventy-four dollars
per week was to be modified to forty-four dollars per week commencing May 2,
2014. The second child support obligation worksheet attached to the court’s
order specified in part that Mother’s weekly gross income was $602.25, that
Father was given credit for parenting time for ninety-eight overnight visits, and
that Father’s weekly support obligation was $44.34. Mother now appeals.2
2 The State of Indiana appeared as an appellee and filed a Notice of Joining Co-Appellee’s brief indicating that it joined in the appellee’s brief filed by Father.
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 3 of 22 Discussion
[4] The issue is whether the trial court abused its discretion or erred in determining
the weekly child support obligation of Father. Ind. Code § 31-16-6-1(a)
provides:
In an action for . . . establishment of paternity under IC 31-14, the court may order either parent or both parents to pay any amount reasonable for support of a child, without regard to marital misconduct, after considering all relevant factors, including:
(1) the financial resources of the custodial parent;
(2) the standard of living the child would have enjoyed if:
*****
(C) in the case of a paternity action, the parents had been married and remained married to each other;
(3) the physical or mental condition of the child and the child’s educational needs; and
(4) the financial resources and needs of the noncustodial parent.
[5] Decisions concerning the payment of child support rest within the sound
discretion of the trial court. Douglas v. Spicer, 8 N.E.3d 712, 714-715 (Ind. Ct.
App. 2014), reh’g denied. On review, we will reverse a trial court’s decision in
child support matters where we find that there was an abuse of discretion or if
the trial court’s determination on the issue is contrary to law. Id.
[6] Mother maintains that the court abused its discretion in determining her weekly
gross income for purposes of calculating support and in failing to include a
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 4 of 22 credit for child care costs, and that the court’s order giving Father credit for
overnight visits is clearly erroneous.
A. Mother’s Weekly Gross Income
[7] With respect to Mother’s weekly gross income, at the hearing the trial court
verbally stated in part:
With respect to [M]other’s income, . . . [t]he dilemma the Court is faced with is this: you have a situation where someone is working a job and I assume she is putting in a lot of time, you know, a lot of blood, sweat and tears into her own business. Trying to be her own boss and run that and I commend her for that but if the business continues to run at a loss, um, one or two things doesn’t add up. If it runs at a loss every single year than [sic] you’re foolishly throwing money down the drain or there is really some money that is being made and not being represented in tax returns. I think we all know that that’s possible to beat. Have a business that operates at a loss and still have some money so [] I think at a minimum I’m going to start with, I think $290.00 is appropriate. I think counselor’s argument regarding in-kind income with respect to the housing she receives I think is also appropriate. She doesn’t pay anything for housing. There’s a lot of testimony today that some of the child care expenses were ran through the business, um, I am going to impute income at the sum of $602.25 to [M]other. Um, I don’t see any other way to do this but there has to be, if she’s running at a loss, I mean, if she’s making minimum wage to drive from Ossian to . . . Fort Wayne, I don’t see her doing that for a minimum wage job. Um and she is saying she makes and doesn’t have any money and so I guess at a point why are we doing that. Um, so I am imputing that to her. . . .
Transcript at 62-63.
[8] Mother contends that her weekly gross income is less than minimum wage,
consisting of net earnings from a rental property and a weekly draw from a
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 5 of 22 tanning salon, that she resides with her father and pays him when she can, and
that under no circumstances will forty-four dollars per week in child support
plus Mother’s income provide M.B. with the standard of living the child would
have enjoyed had her parents been and remained married to each other.
Mother further argues that the court’s order places her “in a position of
dependency, assuming that a situation where Mother pays her father for
housing when she can will continue and further assuming that this ‘benefit’
increases her weekly income to $602.50,” that “[n]either under employment or
intentionally divesting oneself of income is present here,” that she “has been put
in a position of potentially sacrificing the ultimate for the immediate by giving
up on a business that is recuperating and improving because it has had a couple
of tough years,” and that, under the court’s order, Father “will pay a mere six
percent (6%) of his gross salary of the benefit of the child.” Appellant’s Brief at
6.
[9] Father maintains that the court correctly imputed income to Mother, that
Mother has a tanning salon business and a rental house from which she receives
income, and that Mother lives with her father and has paid him a total of three
hundred dollars for living expenses in the five months prior to the hearing.
Father argues that Mother receives income for vehicle expenses through her
business which amounted to $1,302.34 to date in 2014 and that the court was
well within its discretion to impute income of $602.50 given the testimony.
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 6 of 22 [10] Child Support Guideline 3A addresses the definition of weekly gross income for
purposes of determining child support. Paragraph 1 of Child Support Guideline
3A provides in part:
Definition of Weekly Gross Income (Line 1 of Worksheet). For purposes of these Guidelines, “weekly gross income” is defined as actual weekly gross income of the parent if employed to full capacity, potential income if unemployed or underemployed, and imputed income based upon “in-kind” benefits. Weekly gross income of each parent includes income from any source, except as excluded below, and includes, but is not limited to, income from salaries, wages, commissions, bonuses, overtime, partnership distributions, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workmen’s compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, inheritance, prizes, and alimony or maintenance received from other marriages. . . .
[11] Paragraph 2 of Child Support Guideline 3A provides:
Self-Employment, Business Expenses, In-Kind Payments and Related Issues. Weekly Gross Income from self-employment, operation of a business, rent, and royalties is defined as gross receipts minus ordinary and necessary expenses. In general, these types of income and expenses from self-employment or operation of a business should be carefully reviewed to restrict the deductions to reasonable out-of-pocket expenditures necessary to produce income. These expenditures may include a reasonable yearly deduction for necessary capital expenditures. Weekly Gross Income from self-employment may differ from a determination of business income for tax purposes.
Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business should be counted as income if they are significant and reduce personal living expenses. Such payments might include a company car, free housing, or reimbursed meals.
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 7 of 22 The self-employed shall be permitted to deduct that portion of their FICA tax payment that exceeds the FICA tax that would be paid by an employee earning the same Weekly Gross Income.
[12] In addition, Paragraph 3 of Child Support Guideline 3A provides:
Unemployed, Underemployed and Potential Income. If a court finds a parent is voluntarily unemployed or underemployed without just cause, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor’s work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community. If there is no work history and no higher education or vocational training, the facts of the case may indicate that Weekly Gross Income be set at least at the federal minimum wage level.
[13] Paragraph 2 of the Commentary to Child Support Guideline 3A provides in
part:
a. Self-Employment, Rent and Royalty Income. Calculating Weekly Gross Income for the self-employed or for those who receive rent and royalty income presents unique problems, and calls for careful review of expenses. The principle involved is that actual expenses are deducted, and benefits that reduce living expenses (i.e. company cars, free lodging, reimbursed meals, etc.) should be included in whole or in part. It is intended that actual out-of-pocket expenditures for the self-employed, to the extent that they are reasonable and necessary for the production of income, be deducted. Reasonable deductions for capital expenditures may be included. While income tax returns may be helpful in arriving at Weekly Gross Income for a self-employed person, the deductions allowed by the Guidelines may differ significantly from those allowed for tax purposes.
The self-employed pay FICA tax at twice the rate that is paid by employees. At present rates, the self-employed pay fifteen and thirty one-hundredths percent (15.30%) of their gross income to a designated
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 8 of 22 maximum, while employees pay seven and sixty-five one-hundredths percent (7.65%) to the same maximum. The self-employed are therefore permitted to deduct one-half of their FICA payment when calculating Weekly Gross Income.
d. Imputing Income. Whether or not income should be imputed to a parent whose living expenses have been substantially reduced due to financial resources other than the parent’s own earning capabilities is also a fact-sensitive situation requiring careful consideration of the evidence in each case. It may be inappropriate to include as gross income occasional gifts received. However, regular and continuing payments made by a family member, subsequent spouse, roommate or live-in friend that reduce the parent’s costs for rent, utilities, or groceries, may be the basis for imputing income. The marriage of a parent to a spouse with sufficient affluence to obviate the necessity for the parent to work may give rise to a situation where either potential income or imputed income or both should be considered in arriving at gross income.
[14] The evidence shows Mother owns a tanning salon business and receives income
from a rental property, and her completed tax returns for 2012 and 2013 were
admitted into evidence. Mother’s 2013 tax return shows an adjusted gross
income for 2013 of “-16,385.” Petitioner’s Exhibit B. With respect to her rental
property, the 2013 return shows rents received of $8,075 and total expenses of
$5,713, of which $1,927 was attributable to depreciation, for a total rental
income of $2,362. Her 2013 tax return also shows, with respect to her business,
gross income of $23,026 and total expenses of $33,263, for a loss of $10,237.
The tax return shows the business’s expenses included $758 in advertising
expenses, $903 for car and truck expenses, $3,474 in depreciation, $677 for
insurance, $3,968 for mortgage expenses, $2,500 for legal and professional
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 9 of 22 services, $306 for office expenses, $3,766 for the lease of vehicle, machinery,
and equipment, $2,188 for the lease of other business property, $214 for repairs
and maintenance, $949 for supplies, $736 for taxes and licenses, $5,376 for
utilities, and $7,448 in other expenses. The 2013 tax return also shows a net
operating loss carryforward of $8,965, taxable interest of thirteen dollars,
dividends of two dollars, and IRA distributions of $440.
[15] Mother’s 2012 tax return shows an adjusted gross income of “-8,758.” State’s
Exhibit 3. With respect to her rental property, the return shows rents received
of $7,800 and total expenses of $5,322, of which $1,927 was attributable to
depreciation, for a total rental income of $2,478. With respect to her business,
the return shows gross income of $51,590 and total expenses of $52,499, for a
loss of $909. The tax return shows the business’s expenses included $2,889 for
advertising, $4,715 for car and truck expenses, $4,911 in depreciation, $2,353
for insurance, $4,957 for mortgage expenses, $380 for legal and professional
services, $274 for office expenses, $3,561 for the lease of vehicle, machinery,
and equipment, $4,368 for the lease of other business property, $2,146 for
repairs and maintenance, $603 for supplies, $2,368 for taxes and licenses,
twenty-nine dollars for deductible meals and entertainment, $6,440 for utilities,
$7,774 for wages, and $4,731 in other expenses. The 2012 tax return also shows
a net operating loss carryforward of $10,534, taxable interest of $199, and
dividends of eight dollars.
[16] With respect to Mother’s tanning salon business, when asked if she paid some
of her bills out of her business, Mother answered “[n]o,” and when asked “you
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 10 of 22 never put any meals or gas or anything on that,” she testified “I do but my
accountant, I give him the actual rental, or the bus mileage that I do and he
adjusts it at the end of the year . . . .” Transcript at 21. When asked if it was
fair to say that Mother, instead of taking a draw or income, might pay for other
personal expenses, Mother answered “[n]o, he fixes it at the end of the year so I
always put that down as a draw.” Id.
[17] Mother further testified that she moved the location of her business in 2010 to
its current location in Fort Wayne. She stated that she made the greatest
amount of money in 2010, and when asked what happened after that, she stated
that the business “moved to the new location so it’s recuperating expenses,”
that she bought new equipment, and that the move caused the business’s rent to
increase. Id. at 26. She referenced a summary sheet which shows hours
worked of 2,403.89 in 2011, 1,286.6 in 2012, 1,221.8 in 2013, and, as of when
the summary was prepared, 632.81 in 2014. When asked why it appeared that
2012 and 2013 were “substantially less than the prior years,” Mother testified
that “2012 was when [M.B.] was born so [she] was on maternity leave” and
that “2013, [she] didn’t go back to work until the end of March.” Id. at 37.
Mother also testified: “We’ve [had] losses since 2010 when I moved to the new
location and we bought new equipment and the rent has gone up. We are
recuperating from that. This year is better. Last year, we had a disgruntle[d]
employee.” Id.
[18] With respect to rental property income, Mother testified that she had rental
income from a house, that she charged $650 per month, that she had charged
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 11 of 22 that amount in 2013 and had been charging that amount through 2014, that she
paid a monthly mortgage payment of $360, along with taxes and insurance for
the rental property. Mother’s tax returns show that she had total income
related to the rental property of $2,478 in 2012 and $2,362 in 2013.
[19] With respect to her residence, Mother testified that she lived with her father,
and when asked if she paid him anything, she replied “I pay him when I can.”
Id. at 20. She testified “[t]his year I had paid him [] $300” and that “[t]anning
salons are busy 6 months of the year and the rest of the time they are not so in
my slow time, no I will not be able to pay him rent.” Id. at 21. She also
indicated she did not pay for utilities.
[20] With respect to transportation, Mother indicated that she traveled between
twenty-nine and thirty miles from her residence to the salon. She referenced
the summary sheet which she testified contains a summary of her draws and
contributions, rental income, and her “portion of vehicle expenses,” id. at 27,
and the summary shows an amount of $1,302.34 for 2014 under the heading
“car.”3 Petitioner’s Exhibit C.
3 The summary also shows car expenses of zero dollars in 2013 and $3,653.22 in 2012.
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 12 of 22 [21] Trial courts make case-by-case determinations regarding weekly gross income
from self-employment and imputing income for the purpose of computing child
support based upon specific circumstances as they exist or are presented to the
court. We note that weekly gross income from self-employment for child
support purposes may differ from a determination of business income for tax
purposes, that the principle involved is that benefits that reduce living expenses
should be included in whole or in part in a parent’s gross income, that support
may be calculated based on a determination of potential income if a court finds
a parent is voluntarily underemployed without just cause, and that, even in the
absence of evidence of probable earning or earnings levels in a community, the
facts may indicate that a parent’s weekly gross income be set at least at the
federal minimum wage level. See Support Guideline 3A, Paragraphs 2-3.
Therefore, it was not improper for the trial court to find that Mother’s weekly
gross income attributable to her business, given the business’s gross income and
various expense amounts and the hours devoted to the business as discussed
above, was at least the federal minimum weekly wage of $290. In addition, it
was not improper for the court to include in Mother’s weekly gross income an
amount attributable to the fact that she was living with her father and paid little
or no money toward rent or housing and utilities. See Paragraph 2 of the
Commentary to Guideline 3A (noting that “regular and continuing payments
made by a family member . . . that reduce the parent’s costs for rent, utilities, or
groceries, may be the basis for imputing income”). Mother has virtually no
living expenses, and yet she earns rental income of her own. Mother stated that
she made the greatest amount of money in 2010 but moved the location of the Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 13 of 22 salon that year to a new area between twenty-nine and thirty miles from her
residence, causing the business’s rent to increase, and she purchased new
equipment. Although it is Mother’s prerogative to make changes to her
business, the testimony and documentary evidence before the trial court support
a conclusion that Mother is either under-employed or under-reporting her
income, and we are not in a position to make credibility determinations.
[22] Based upon the record and the Support Guidelines and commentary set forth
above, and keeping in mind that we place a strong emphasis on trial court
discretion in determining child support obligations, we cannot say that the trial
court abused its discretion in establishing Mother’s weekly gross income for the
purpose of determining Father’s child support obligation.
B. Child Care
[23] Mother further asserts that the trial court abused its discretion in failing to
include a credit for estimated child care costs. The court found:
With respect to child care expenses, um, currently there isn’t one. That may change and that may change the support obligation but currently there isn’t a child care expense. The testimony that I heard previously was that mother did, again paid some of this through the business. Um, some of the daycare or child care was provided in the business when the child was there at her business and was paid just as and she just paid her hourly employees to watch the child. I am not going to, and there was a period of time when the parties lived together, so I am not going to in the calculation include child care at this time. Again, that may change. When there is evidence presented that the child care expense exists again it comes back to the situation for her to pay $120.00 per week or even $135.00 per week for child expenses when she makes minimum wage income, um, to pay half
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 14 of 22 your income in child care expenses for a minimum wage job doesn’t make a lot of financial sense so I’m not going to award child support at this time.
Transcript at 63-64.
[24] Mother argues that failing to provide for child care expenses “will harm the
child’s financial position in that as a result of the order, Mother must continue
and require her employees to provide daycare services and watch her business
decrease because this diverts the attention of the staff away from the business”
and asks “[m]ust a custodial parent in need of daycare for his or her child find a
daycare provider who will provide the services for free until such time as the
other parent is ordered to pay his or her pro-rata share for the expenses
associated with said care?” Appellant’s Brief at 7. Father points to the
comment to Support Guideline 3(E)(1) which states that, when potential
income is attributed to a party, the court should not also attribute work-related
child care expenses which are not actually incurred. Father notes that Mother
testified that M.B. was at Mother’s business and, when Mother did pay for child
care, she was paying one of her employees out of her business and not out of
her pocket.
[25] Paragraph 1 of Child Support Guideline 3E provides in part:
Child care costs incurred due to employment or job search of both parent(s) should be added to the basic obligation. It includes the separate cost of a sitter, day care, or like care of a child or children while the parent works or actively seeks employment. Such child care costs must be reasonable and should not exceed the level required to
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 15 of 22 provide quality care for the children. Continuity of child care should be considered. . . .
The parent who contracts for the child care shall be responsible for the payment to the provider of the child care. . . .
When potential income is attributed to a party, the court should not also attribute work-related child care expense which is not actually incurred.
Paragraph 1 of the Commentary to Support Guideline 3E provides in part:
“When potential income is attributed to a party, the court should not also
attribute a work-related child care expense which is not actually incurred
because this expense is highly speculative and difficult to adequately verify.”
[26] At the hearing, a letter was admitted which stated that Mother had been paying
for child care as of September 13, 2013.4 However, Mother testified that the
amount had changed in 2014, and when asked what she was paying in 2014,
Mother testified “[c]urrently I do not have a babysitter” and “I’ve looked at 4 or
5 different childcare providers and the cost will range anywhere from $143 to
$157 . . . .” Transcript at 17. When Mother was later asked if she had child
care from January through the hearing, Mother testified “[j]ust my employees.
4 The letter stated that Mother paid “$100 every other week, and $120 every other week” and that, “[s]tarting in December of 2013,” the amount would change to $135 per week. State’s Exhibit 2.
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 16 of 22 I stay.” Id. at 34. She indicated that she paid her employees an hourly rate of
$7.50, that she had “three different employees but it’s only one there each,”
and, when asked “how is this working,” that it was “[n]ot very good.” Id.
Mother stated that she could not “get anything done during the day when
[M.B.] is there with [her],” that “[i]t is hard to sell people packages, tanning
lotion, it’s hard to clean a bed,” that “[i]t’s just impossible to get my work
done,” and that “[i]t affects sales.” Id. at 35. As noted above, a summary sheet
shows hours worked of 1,221.8 in 2013 and, as of when the summary was
prepared, 632.81 hours in 2014.
[27] Under the circumstances, including that Mother did not directly or personally
incur any child care expense and the fact that the evidence related to the cost to
Mother’s business of having M.B. with Mother at work during the hours she
worked is inexact, we cannot say the court abused its discretion in declining to
provide a credit for child care expenses at this time. Mother may seek a
modification of support under Ind. Code § 31-16-8-1 in the future as
appropriate.
C. Credit for Parenting Time
[28] Mother also argues that the court’s order giving Father credit for ninety-eight
overnights was clearly erroneous. The court’s order provided in part:
Father shall exercise parenting time, which shall be at all reasonable and proper times as agreed upon by the parties, but not less than as provided by the Indiana Parenting Time Guidelines. Father shall have 1 overnight every other weekend. Mother shall always have the child
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 17 of 22 every Christmas day with Father having every Christmas Eve unless otherwise agreed upon[.]
Appellant’s Appendix at 5. The child support obligation worksheet attached to
the court’s order shows that Father was to be given a credit for parenting time
for ninety-eight overnight visits.
[29] Mother argues that the court “gave Father credit for time it has not yet
permitted.” Appellant’s Brief at 8. She argues that, “[w]hile child support can
be revisited in the future, the current order provides that Father shall have one
overnight every other weekend, which figures to 26 overnights per year, far less
than the 98 the Court put in its order.” Id. Father maintains that the court
“clearly stated that one overnight every other weekend was a minimum” and
that the court awarded him “ninety-eight (98) overnights which is in its
discretion to do so.” Appellee’s Brief at 7-8.
[30] At the hearing, the court stated:
Um, in rereading the guidelines with respect to a child of this age, um, again I will note, [Father] did live, they did live together apparently in his home from birth through 6 months, um, and the child is not yet 3 years old. Um, I understand that it can be difficult, ah, and you are putting a lot of trust in the other parent, um, when the child is not in your care, um, the guidelines state for a child 19 months to 36 months, alternating weekends on Saturdays for 10 hours and on Sundays for 10 hours. Then it goes on to say, it talks about being returned prior to bedtime unless overnight is appropriate. So that is the question for the Court. Is overnight appropriate? It, you know, we have a father here who wants to be a part of the child’s life, um, I understand the concern about the safety but at some point, [Father] is the father and he’s going to have overnights with the child. Um, I haven’t heard anything to the Court that demonstrates he is a danger, that he doesn’t have any
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 18 of 22 experience with the child. . . . He has two other children, one of them who has some CPR training and things like that so I think that there is reasonable supervision of the child at his home and so I don’t see any reason why he wouldn’t have overnight visitation with the child. I understand the child currently is still breastfeeding; however, [Mother’s] testimony is that she is trying to wean her off of that, um, and every other weekend for one night, one overnight over the weekend is not, I think, would fit within that schedule so I don’t see any reason why [Father] should not have overnight visitation with the child so I am going to order parenting time at all reasonable and proper times and again these are the guidelines that are supposed to be at a minimum, not at the bar at which we should start. These are minimum so I encourage the parties if it is appropriate to have additional parenting time but this is what the Court will follow: all reasonable and proper times and at the minimum the Indiana Parenting Time Guidelines. The Court will also adopt the Indiana Parenting Time Guidelines holiday schedule with the exception that mother will always have parenting on Christmas and [F]ather would always have parenting time on Christmas Eve, unless otherwise agreed.
With respect then to credit for parenting time, um, [F]ather, I’ve given the opportunity to have child care, or overnight visitation, I’m going to give the standard 98 overnights per year. However, I will say and the Court will take the overnight visitation away if it is not being exercised and I don’t hesitate to do that, that is there for his benefit. I am going to leave it in there for right now to encourage him to have overnight visitation but certainly if it is not being exercised, I won’t award it to him in the future.
Transcript at 61-62, 64 (emphases added).
[31] Section II of the Parenting Time Guidelines provides specific parenting time
provisions related to overnight parenting and age categories, and subsection
C.3.(C) of Section II includes guidelines for parenting time for a child of “Age
19 Months through 36 Months” which provide:
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 19 of 22 (1) Alternate weekends on Saturdays for ten (10) hours and on Sundays for ten (10) hours. The child is to be returned at least one hour before bedtime, unless overnight is appropriate.
(2) One (1) “day” preferably in mid-week for three (3) hours, the child to be returned at least one (1) hour before evening bedtime, unless overnight during the week is appropriate.
(3) All scheduled holidays for ten (10) hours. The child is to be returned one hour before bedtime.
(4) If the non-custodial parent who did not initially have regular care responsibilities has exercised the scheduled parenting time under these guidelines for at least nine (9) continuous months, regular parenting time as indicated in section II.D.1. below may take place.
[32] Subsection D.1. of Section II includes guidelines for regular parenting time of a
child three years of age and older and provides:
(a) On alternating weekends from Friday at 6:00 P.M. until Sunday at 6:00 P.M. (the times may change to fit the parents’ schedules);
(b) One (1) evening per week, preferably in mid-week, for a period of up to four hours but the child shall be returned no later than 9:00 p.m; and,
(c) On all scheduled holidays.
[33] The court’s written order provides that Father “shall exercise parenting time,
which shall be at all reasonable and proper times as agreed upon by the parties,
but not less than as provided by the Indiana Parenting Time Guidelines” and
that “Father shall have 1 overnight every other weekend.” Appellant’s
Appendix at 5. The court verbally stated that it had given Father “the
opportunity to have . . . overnight visitation” and “I’m going to give the
standard 98 overnights per year.” Transcript at 64. Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 20 of 22 [34] We note that, according to Section II.C.3.(C) of the Parenting Time Guidelines
set forth above, ninety-eight overnight visits per year is not standard for a child
younger than thirty-six months of age. At the time of the hearing, M.B. was
twenty months old. Moreover, the court’s written order specifically provided
that Father “shall have 1 overnight every other weekend,” Appellant’s
Appendix at 5, which would comprise approximately twenty-six annual
overnight visits. The court also ordered that parenting time shall not be less
than as provided by the Parenting Time Guidelines, but, with respect to
overnight visits, parenting time of one overnight every other weekend is more,
not less, than the parenting time guideline for children younger than thirty-six
months old.5 While the court verbally encouraged “the parties if it is
appropriate to have additional parenting time,” the court also expressly stated
“but this is what the Court will follow: all reasonable and proper times and at
the minimum the Indiana Parenting Time Guidelines.” Transcript at 64. In
light of the court’s order that Father shall have one overnight visit every other
weekend and that parenting time shall not be less than as provided by the
Parenting Time Guidelines, and considering that Mother is not required to
permit M.B. to have overnight visits with Father in addition to one overnight
5 The court did not indicate that subsection (4) of Section II.C.3.(C) of the Parenting Time Guidelines was applicable.
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 21 of 22 visit every other weekend, the court’s support order reflecting a parenting time
credit for Father for ninety-eight overnight visits is clearly erroneous, and we
reverse and remand and order the trial court to recalculate Father’s credit for his
overnight parenting time until the child is three years of age.
Conclusion
[35] For the foregoing reasons, we reverse and remand for a reduction of the credit
assigned to Father for overnight parenting time until the child is three years of
age, and for the entry of a revised order and child support obligation worksheet
reflecting this adjustment. We otherwise affirm the trial court’s order.
[36] Affirmed in part, reversed in part, and remanded.
Bailey, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 90A02-1406-JP-410 | February 26, 2015 Page 22 of 22