MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Aug 24 2017, 6:09 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark A. Garvin Michael H. Michmerhuizen Fort Wayne, Indiana Barrett McNagny LLP Fort Wayne, Indiana Cornelius B. (Neil) Hayes Hayes & Hayes Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
L.T., August 24, 2017 Appellant-Petitioner, Court of Appeals Case No. 44A03-1703-DR-485 v. Appeal from the LaGrange Circuit Court E.T., The Honorable J. Scott Appellee-Respondent VanDerbeck, Judge Trial Court Cause No. 44C01-0506-DR-35
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 1 of 24 [1] L.T. (Mother) appeals the trial court’s modification of the child support order
between her and E.T. (Father). She argues that the trial court committed
procedural errors when it (1) conducted summary proceedings and (2) adopted
Father’s proposed findings of fact and conclusions of law. She also argues that
the trial court erred when it (1) considered Father’s motion to modify child
support; (2) considered her potential income; (3) treated Father as the custodial
parent and ordered both parties to share the controlled expenses equally; (4) did
not prorate the weekly health insurance premium paid for by Father; (5)
calculated one child’s “weeks at home”; and (6) transferred control of the 529
Plans to Father. Finding no error, we affirm.
Facts [2] Father and Mother married on May 6, 1995. Two children were born of their
marriage: H.T., born on August 9, 1997, and S.T., born on September 24,
1999. On December 6, 2002, Mother filed a petition for dissolution of
marriage.
[3] In 2004, the trial court granted the parties joint legal custody of their children
and granted Mother physical custody. The trial court ordered Father to pay
child support of $429 per week.
[4] On April 26, 2006, following a motion to modify child custody filed by Father,
the trial court modified child custody, granting sole legal custody to Father and
ordering the parties to share equal parenting time. The trial court granted
Father parenting time credit and modified his child support payments to $387
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 2 of 24 per week. In its order, the trial court noted that “both parties previously
delegated their parental authority, in loco parentis” to “The Panel.”1 Appellant’s
App. Vol. II p. 92. The trial court found the following regarding the panel and
guardian ad litem:
• Mother was treated for Munchausen Syndrome by Proxy. • Mother’s act of filing complaints against two panel members was self- serving and resulted in the children failing to have access to a professional psychotherapist. • Mother’s allegations of sexual misconduct by Father were unsubstantiated.
Id. at 97. Regarding the change of legal custody, the trial court found the
following:
• Mother had undertaken acts to upset or interfere with the operation of the panel and the guardian ad litem; • Following a court order requiring both parents to participate in individual psychotherapy, Father routinely participated in psychotherapy, whereas Mother attended only three sessions and at the time of the April 26, 2006, order, was not seeing a therapist. • Mother attempted to unilaterally modify child visitation, which led H.T. to being frustrated and upset. • Mother took the children on a family vacation that resulted in Father losing some of his court-ordered parenting time. • When the children, then aged eight and six, are with Mother, they sleep in Mother’s bed every night. • Mother acted contrary to the court’s prior order that she act in good faith and encourage the maximum relation of affection toward each parent.
1 The record does not include information about the purpose of this panel or who served on it.
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 3 of 24 Id. at 100-101.
[5] On August 10, 2015, Father filed a motion to modify child support and a
motion for an order on higher education. On October 5, 2016, Mother filed her
opposition to Father’s motions. A hearing took place on October 11, 2016, and
the trial court issued its order on November 2, 2016. The trial court found as
follows regarding Father’s pending motion for modification of support:
• While Father’s motions were pending, he continued to pay $387 per week in child support, even though changed circumstances of a substantial and continuing nature occurred that would justify a modification of child support. • The changed circumstances were that H.T. left for college and turned 19 on August 9, 2016. As a matter of law, child support for H.T. ceased when she turned nineteen. • Mother financially benefitted from the delay in the proceeding because she collected child support for two children at home, even though only one child was at home and the other was living on a college campus and was past the age of emancipation.
Id. at 38-39. Regarding the child support modification, the trial court found as
follows:
• Father works as an anesthesiologist between 60-100 hours per week. Father’s yearly income averaged to $410,241 over the course of three years, or $7,889.25 per week. • Mother works part-time, by choice, as a nurse anesthetist for approximately fifteen hours per week. She earns $95 per hour, or a weekly income of $1,370. • Mother worked part-time during the marriage; she continued to work part-time after the trial court divided the children’s time equally between the parties, despite having more free time.
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 4 of 24 • Mother is voluntarily underemployed. By her own admission, she is capable of earning $175,000 annually. Mother could work additional hours, but chooses not to, citing an inability to be a good mother, an inability to give “life lessons,” and a negative impact to mental health. • Mother’s potential annual income is $175,000, or $3,365 per week.
Id. at 39-40, 42. The trial court continued with the following findings:
• Controlled expenses were not previously specifically allocated between the parties. The parties traditionally shared in the controlled expenses of the children, even though Father has paid child support. The trial court ordered that, based upon the equal sharing of the children’s time, the controlled expenses be equally shared, with the exception of uninsured healthcare expense. • Father provided evidence of insurance coverage for the children that cost him an additional $269 per month, or $62 per week; the trial court found that Father’s calculation was correct, and that the cost of health insurance coverage for H.T. and S.T. was $62 per week. • During the summer, when H.T. was not at school, her time was divided equally between the parties. A reasonable summer break is ten weeks at home. The child support obligation worksheet compensated Mother for the five weeks H.T. resided with her. • Child support should be retroactively modified on August 20, 2015, when H.T. went to Purdue, and again on August 9, 2016, when H.T. turned nineteen.
Id. at 41-43. The trial court entered the following judgment:
• Father would pay child support to Mother. • Retroactively effective August 20, 2015, Father would pay child support of $128 per week for two children. • Retroactively effective August 9, 2016, when H.T. turned 19, Father would pay child support of $137 per week for S.T. • Because Father overpaid child support from August 20, 2015, to August 9, 2016, Mother would repay Father $13,134, the amount he overpaid during this time. Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 5 of 24 • Because Father overpaid child support from August 9, 2016, to the date of the hearing on October 11, 2016, Mother would repay Father $2,215, the amount he overpaid during this time, along with any further overpayment made subsequent to the hearing date. • The parties would use all existing higher education plans, including existing 529 Plans. All 529 Plans would be placed under Father’s control.
Id. at 44-45.
[6] On November 17, 2016, Mother filed a motion to correct error. On January 3,
2017, Father filed a response to Mother’s motion. The trial court held a hearing
on January 26, 2017. On February 20, 2017, it denied Mother’s motion and
issued its order, which provided as follows:
• Mother would pay the first $427.32 of the ongoing uninsured medical, dental, optical, pharmaceutical, ophthalmologist, and orthodontic expenses; regarding any remaining costs, Father would pay 69% and Mother would pay 31%. • In its November 2, 2016, order, the trial court relied on its April 26, 2006, order, including findings of fact about Mother’s interference with proceedings; Father’s participation in psychotherapy and Mother’s lack of participation; Mother’s attempts to unilaterally modify child visitation and the effect of those attempts on H.T.; Father’s enrollment of the children in wholesome activities; and Mother’s false allegations about Father’s inappropriate behavior with the children.
Id. at 54-55. Mother now appeals.
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 6 of 24 Discussion and Decision I. Standard of Review [7] A trial court’s calculation of child support is presumptively valid. Young v.
Young, 891 N.E.2d 1045, 1047 (Ind. 2008). Child support calculations are made
utilizing the income shares model set forth in the Indiana Child Support
Guidelines. Sandlin v. Sandlin, 972 N.E.2d 371, 374 (Ind. Ct. App. 2012). The
Guidelines apportion the cost of supporting children between the parents
according to their means, on the premise that children should receive the same
portion of parental income after a dissolution that they would have received if
the family had remained intact. Id. The trial court is vested with broad
discretion in making child support determinations. Id. We reverse a decision
regarding child support only if it is clearly erroneous or contrary to law. Young,
891 N.E.2d at 1047. We do not reweigh the evidence and consider only the
evidence most favorable to the judgment. Saalfrank v. Saalfrank, 899 N.E.2d
671, 674 (Ind. Ct. App. 2008).
II. Procedural Matters A. Summary Proceeding [8] Mother asserts that the trial court improperly treated the October 11, 2016,
hearing as a summary proceeding. Our Supreme Court has recently explained
that
[s]ummary proceedings function to efficiently resolve disputes by allowing parties and the court to forego the use of formal rules of
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 7 of 24 procedure and evidence and instead allow the court to base its findings and conclusions upon the arguments of counsel and limited evidence. Summary proceedings commonly take place when parties are not disputing essential facts, but rather the legal outcome compelled by those facts.
Bogner v. Bogner, 29 N.E.3d 733, 739 (Ind. 2015). When properly agreed to,
summary proceedings can minimize the negative impact on children in matters
of custody and parenting time, but they “may be less appropriate where the
parties are vigorously contesting every facet of the process and appear incapable
of approaching these decisions in a civil or cooperative manner.” Id.
[9] Both parties were present at the October 11, 2016, hearing. At the beginning of
the hearing, the trial court requested opening statements. Father gave one by
counsel, as did Mother, who was proceeding pro se. After the statements, the
following exchange took place:
Father’s Counsel: . . . Would it be easier, Your Honor, uh, for us to do this in a summary fashion and then swear the parties?
The Court: I – well I welcome that. Try to go as far as you can. You each affirm you’ll tell the truth today, so help you God?
Father: I do.
Mother: I do.
Tr. p. 11. At no point did Mother object to the summary nature of the
proceedings. She also did not object to the exhibits offered by Father. Mother
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 8 of 24 argues that she was not advised about the implications of conducting the
hearing as a summary proceeding, but Mother’s status as a pro se litigant at the
hearing does not make ignorance of the law a valid argument on appeal. See
Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016) (noting that pro se
litigants are held to the same standards as licensed attorneys, are bound to
follow the established rules of procedure, and must be prepared to accept the
consequences of their failure to do so). If Mother did not want to proceed in a
summary fashion, that objection should have been raised at the time of the
hearing. See Bogner, 29 N.E.3d at 741.
[10] At the hearing, the trial court acknowledged that Mother was proceeding pro se
and would “take liberties” because Mother did not have an attorney. Tr. p. 5.
Toward the beginning of the hearing, the trial court gave Mother ample
opportunity to raise the issues she wanted the trial court to consider. As it
continued, the trial court gave Mother ample opportunity to provide other
relevant information regarding the issues in dispute. Finally, the trial court
allowed Mother to make two closing arguments. In short, Mother fails to show
how she was prejudiced by the summary nature of the proceedings. Mother’s
argument regarding the summary proceeding is unavailing.2
2 Although we find that a summary proceeding was properly conducted, we remind the trial court that our Supreme Court has outlined best practices for summary proceedings, which include establishing on the record: “1) affirmative agreement from the attorneys that proceedings will be conducted summarily, for those represented by counsel; 2) affirmative agreement by both clients or unrepresented litigants to summary proceedings; 3) opportunity for both parties to add any other relevant information regarding the issues in dispute before the summary proceeding is concluded or to affirm the arguments made by counsel; and 4) an advisement in advance of the hearing that either party is free to object to the form of the proceeding and
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 9 of 24 B. Trial Court’s Findings and Conclusions [11] Mother also takes issue with the trial court’s November 2, 2016, order, which,
she contends, adopts Father’s proposed findings of fact and conclusions of law
“essentially verbatim.” Appellant’s Br. p. 25.
[12] In its order, the trial court adopted verbatim many but not all of Father’s
proposed findings. See Appellant’s App. Vol. II p. 37-45, 139-148. Trial Rule
52(C) encourages trial courts to request that parties submit proposed findings of
fact and conclusions of law and it is not uncommon or per se improper for a
trial court to enter findings that are verbatim reproductions of submissions by
the prevailing party. Clark v. Crowe, 778 N.E.2d 835, 841 n.3 (Ind. Ct. App.
2002). Our Supreme Court has noted that the practice of accepting verbatim a
party’s proposed findings of fact “weakens our confidence as an appellate court
that the findings are the result of considered judgment by the trial court.” Cook
v. Whitsell-Sherman, 796 N.E.2d 271, 273 n.1 (Ind. 2003). However, because the
trial courts of this state are faced with an enormous volume of cases and they
prioritize the need to keep the docket moving, the practice of adopting a party’s
proposed findings is not prohibited. Prowell v. State, 741 N.E.2d 704, 708 (Ind.
2001). Thus, although we by no means encourage the wholesale adoption of a
party’s proposed findings and conclusions, the critical inquiry is whether such
request a full evidentiary hearing, upon which formal rules of evidence and procedure will be observed.” Bogner, 29 N.E.3d at 743.
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 10 of 24 findings, as adopted by the court, are clearly erroneous. In re Marriage of Nickels,
834 N.E.2d 1091, 1096 (Ind. Ct. App. 2005).
[13] Initially, we note that while Mother argues that the trial court “adopts verbatim
proposed findings and conclusions for issues never raised by [Father], never
supported by evidence, and never argued or mentioned at the hearing[,]” she
fails to specify even one finding of fact or conclusion of law that was not raised
before the trial court, not supported by evidence, or not argued at the hearing.
Second, the trial court did not adopt the entirety of Father’s proposed findings
and conclusions. Specifically, the trial court did not adopt Father’s proposed
division of attorney fees to the benefit of Mother. The trial court consolidated
at least two of Father’s proposed findings regarding Mother’s potential income.
The trial court also made multiple grammatical edits to Father’s proposed
findings and conclusions. We find no error with the trial court’s adoption of
many of Father’s proposed findings and conclusions.
III. Child Support
A. Father’s Motion to Modify [14] Mother argues that the trial court erred in modifying Father’s child support
even though his motion did not satisfy the requirements of Indiana Code
section 31-16-8-1. This statute provides that modification of an order with
respect to child support 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 party has been ordered to pay an amount in child
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 11 of 24 support that differs by more than twenty percent from the amount that would
be ordered by applying the child support guidelines, and the order requested to
be modified was issued at least twelve months before the petition requesting
modification was filed. I.C. § 31-16-8-1(b).
[15] Specifically, Mother argues that Father failed to show that he had been ordered
to pay an amount in child support that differed by more than twenty percent
from the amount that would be ordered by applying the child support
guidelines. Even if this argument were persuasive, Mother fails to correctly
read the statute, which provides that a modification may be made either upon a
showing of changed circumstances so substantial and continuing as to make the
terms unreasonable, or upon a showing that a party has been ordered to pay an
amount that differs by more than twenty percent from the amount that would
be ordered by applying the child support guidelines.
[16] In this case, Father’s motion for modification of child support clearly shows
changed circumstances so substantial and continuing as to make the terms of
his child support payments unreasonable. While Father’s motion was pending,
H.T. started college and turned nineteen, thereby making her emancipated as a
matter of law. See Ind. Code § 31-16-6-6(a) (“The duty to support a child under
this chapter, which does not include support for educational needs, ceases when
the child becomes nineteen (19) years of age”).
[17] Nonetheless, Mother contends that Father’s motion for modification should not
succeed because the changed circumstances do not make Father’s child support
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 12 of 24 payments unreasonable. She reasons that, based on her own calculations, a
recalculation of Father’s child support payments would lead to a negligible
increase in Father’s payments—and that, in light of the parties’ incomes and
amount of support provided, a negligible increase cannot make Father’s
payments unreasonable. Mother does not cite any authority to support this
distinctive line of reasoning, nor do we find any. Rather, this Court has found
that emancipation necessarily warrants modification of child support. See, e.g.,
Patton v. Patton, 48 N.E.3d 17, 23 (Ind. Ct. App. 2015) (reducing Father’s
weekly child support payment from $160 to $136.42 following the
emancipation of one of his three children). The trial court did not err in
considering Father’s motion to modify child support.
B. Indiana Child Support Guidelines [18] Mother contends that the trial court failed to follow the Indiana Child Support
Guidelines in determining Father’s support obligation. Specifically, she asserts
that the trial court did not make the findings required under Child Support Rule
3.
[19] Our Supreme Court has recently discussed the role of the Indiana Child
Support Guidelines:
The Indiana Child Support Guidelines serve three objectives: 1) establish an appropriate level of support for children, based on each parent's ability to contribute to that support; 2) increase consistency in support levels for those in similar circumstances; and 3) improve efficiency by encouraging settlements and giving both the court and the parties guidelines for setting awards. Ind.
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 13 of 24 Child Supp. G. 1. To reach these goals, child support is calculated under the Guidelines “as the share of each parent's income estimated to have been spent on the child if the parents and child were living in an intact household.” Id. However, the support award under the Guidelines is not binding upon the parties or the court. Rather, “[i]f the court concludes from the evidence in a particular case that the amount of the award reached through application of the guidelines would be unjust, the court shall enter a written finding articulating the factual circumstances supporting that conclusion.” Ind. Child Supp. G. Supp. R. 3. However, the findings required “need not be as formal as Findings of Fact and Conclusions of Law; the finding need only articulate the judge's reasoning.” Ind. Child Supp. G. 1 Cmt. Furthermore, the “Guidelines are not immutable, black letter law,” but provide “room for flexibility.” Id.
Bogner, 29 N.E.3d at 738.
[20] Here, the trial court’s February 20, 2017, order explains that it relied on the
findings of fact from its April 26, 2006, order to justify its child support
modification calculation. In that 2006 order, the trial court included findings of
fact about Mother’s interference with proceedings; Father’s participation in
psychotherapy and Mother’s lack of participation; Mother’s attempts to
unilaterally modify child visitation and the effect of those attempts on H.T.;
Father’s enrollment of the children in wholesome activities; and Mother’s false
allegations about Father’s inappropriate behavior with the children. We find
that the trial court’s order’s reference to these findings of fact sufficiently
articulates the trial court’s reasoning for its award calculation. Therefore, we
find no error.
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 14 of 24 C. Impution of Income to Mother [21] Mother argues that the trial court erred in attributing potential income to her.
The Guidelines provide as follows for 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.
Ind. Child Support Guideline 3(A)(3). The Commentary to this Guideline
explains that
When a parent has some history of working and is capable of entering the work force, but without just cause voluntarily fails . . . to be employed in a capacity in keeping with his or her capabilities, such a parent's potential income shall be included in the gross income of that parent. . . . Discretion must be exercised on an individual case basis to determine whether under the circumstances there is just cause to attribute potential income to a particular unemployed or underemployed parent.
Child Supp. G. 3(A), Commentary 2(c)(2) (emphasis added). A trial court may
use its discretion “to impute potential income even under circumstances where
avoiding child support is not the reason for a parent’s unemployment.” In re
Paternity of Pickett, 44 N.E.3d 756, 766 (Ind. Ct. App. 2015).
[22] Here, the trial court heard evidence indicating that Mother has the ability and
opportunity to work full-time but chooses to work part-time. She testified that Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 15 of 24 My boss has gone with me through this divorce and he has molded my schedule around my daughters. . . . So my boss created this, uh, this position for me that I can start at 8 a.m. on the days I have my daughters and I can leave at 2:30 to pick them up after school. Now, the risks of this is I don’t have predictable hours. He can cancel me the night before. And I’ve taken this risk because it is very important for me to be around my daughters. . . . My job quite frankly is very stressful. . . . It’s a very fast paced environment and to work fifty hours a week is, would be impossible for me to be a good parent as well. . . . [The job my] boss has created for me is a blessing for my, for my life and for my children’s lives. And I’m asking to just maintain it for two more years. [S.T.] will be emancipated, uh, one month after she leaves for college.
Tr. p. 24-25. The trial court also heard evidence that H.T. is away at college,
that Father and Mother share physical custody of S.T., and that S.T. is in
Mother’s care for only half the year. The trial court imputed income to Mother
that she admitted she could earn if she were employed full-time in her same
position with her same employer. Compare with Salser v. Salser, 75 N.E.3d 555,
561 (Ind. Ct. App. 2017) (finding that the trial court’s decision to assign
potential income to Mother was clearly erroneous because the determination of
potential income would effectively force Mother to follow a career path she did
not want, including leaving her current medical practice and seeking
employment in another kind of medical practice).
[23] Mother also contends that the trial court failed to make a specific finding that
she was underemployed without just cause. However, Mother does not provide
authority for her contention that the trial court was required to make a specific
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 16 of 24 finding on this point. The trial court found that Mother is working 14-15 hours
a week in order to parent her children, one of whom is already in college and
emancipated, and one of whom is a teenager who is with her only half of the
year; these facts are sufficient articulation of the basis of its determination that
Mother was underemployed without just cause.
[24] Mother further contends that the trial court had no basis to discount her
argument that working part-time provided her with mental health benefits. Yet
Mother offered no evidence beyond her own testimony that her work is “fast-
paced” and “stressful” to support her contention that full-time employment
would be detrimental to her mental health. Tr. p. 25. Mother also contends
that her decision to work part-time allows her to parent her children. True as
that may be, she fails to recognize that H.T. is away at college in another city,
and S.T. resides with Mother for only half the year. Moreover, on appeal,
Mother fails to present evidence of what her parenting actually involves. See In
re Paternity of Pickett, 44 N.E.3d 756, 767 (Ind. Ct. App. 2015) (finding that
Father was voluntarily underemployed because, although he was serving as his
mother’s primary caregiver, there was no evidence regarding the level of care
she needed or what care Father actually provided).
[25] In light of these facts, the trial court did not err in finding that Mother is
voluntarily underemployed without just cause and in imputing income to her.
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 17 of 24 D. Custodial/Controlled Expense Parent [26] Mother argues that the trial court erred in determining Father to be the
custodial and controlled expense parent.
[27] The Commentary to Indiana Child Support Guideline 6 defines “controlled
expenses” as follows:
This type of expense for the child(ren) is typically paid by the custodial parent and is not transferred or duplicated. Controlled expenses are items like clothing, education, school books and supplies, ordinary uninsured health care and personal care. . . . “Education” expenses include ordinary costs assessed to all students, such as textbook rental, laboratory fees, and lunches, which should be paid by the custodial parent. . . .
The controlled expenses account for 15% of the cost of raising the child. The parenting time credit is based on the more time the parents share, the more expenses are duplicated and transferred. The controlled expenses are not shared and remain with the parent that does not get the parenting time credit. Controlled expenses are generally not a consideration unless there is equal parenting time. These categories of expenses are not pertinent for litigation. They are presented only to explain the factors used in developing the parenting time credit formula. . . .
[28] Mother argues that the November 2, 2016, order treats Father as the custodial
parent for the first time for purposes of calculating retroactive and prospective
support, which, she contends, is a change from the prior fourteen years of
calculations and significantly benefits Father. In support of this argument,
Mother asserts that the judgment requires her “to pay the vast majority of
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 18 of 24 controlled expenses, including all of the ordinary uninsured medical expenses
and 50% of all other controlled expenses.” Appellant’s Br. p. 39.
[29] As for the controlled expenses, initially we note that our Supreme Court
amended the Guidelines effective January 1, 2010; the amended Guidelines use
the term “controlled expenses” for the first time. The November 2, 2016, order
was the first modification of the parties’ child support since the 2010
amendments to the Guidelines, and therefore the first time that the trial court
would have considered “controlled expenses” in the parties’ child support plan.
This chronology explains this particular change from the parties’ prior 2006
order.
[30] The November 2, 2016, order explicitly contradicts Mother’s arguments
regarding controlled expenses. Mother argues that she is required to pay the
vast majority of controlled expenses; however, the order states that Mother and
Father are each to pay half of the controlled expenses. Mother argues that she
is required to pay all of the ordinary uninsured medical expenses, but the
corrected February 20, 2017, order required Mother to pay only the first
$427.32 of uninsured medical expenses, with Father paying 69% and Mother
paying 31% of the remaining expenses.
[31] Mother contends that items she paid for, including cell phone service, gym
memberships for the children, and one $10,000 vehicle for H.T., are all
controlled expenses. Although Father is willing to agree that cell phone service
and gym memberships are controlled expenses, see Appellee’s Br. p. 39, we find
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 19 of 24 that none of these items constitute controlled expenses. Under the
Commentary to Child Support Guideline 6, controlled expenses include
everyday, ordinary expenses for a child’s well-being and educational needs.
While cell phones, gym memberships, and a vehicle may make life more
enjoyable for the children, we cannot say these items are everyday, ordinary
expenses required for their well-being and education, but are instead optional in
nature.
[32] As for the trial court’s determination that Father is the custodial parent,
Mother’s argument seems to turn on the fact that “[c]hanging the custodial
parent to [Father] saves him even more money.” Appellant’s Br. p. 39. We are
unpersuaded by this argument; indeed, it seems more focused on the amount of
money that Mother could receive from Father than with the children’s actual
financial needs. Father, as the custodial parent, is paying for half of the
children’s controlled expenses, for their health insurance, and for a
proportionate share of their private school tuition and uninsured health care.
He continued to pay child support for two children long after H.T. left for
college and was emancipated. The record shows that Father paid a nearly five-
thousand dollar bill for H.T.’s orthodontic treatment without assistance from
Mother, despite the 2006 order controlling how the parties were to share this
kind of expense. Considering that nothing in the record suggests that Father
has done anything but financially provide for his children to the best of his
ability, we find Mother’s implication that Father, in becoming the custodial
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 20 of 24 parent, is trying to save money, to be outlandish and not based on a rational
view of the parties’ situation.
[33] Mother’s argument regarding the trial court’s designation of Father as the
custodial parent and the controlled expenses is unavailing.
E. Weekly Health Insurance Premium [34] Mother argues that the trial court erred by giving Father a credit for a health
insurance premium even though the trial court did not prorate the cost of
Father’s health insurance premium.
[35] The Commentary to Child Support Guideline 3E provides:
The weekly costs of health insurance premiums only for the child(ren) should be added to the basic obligation so as to apportion that cost between the parents. The parent who actually pays that cost then receives a credit towards his or her child support obligation on Line 7 of the Worksheet. . . . Only that portion of the cost actually paid by a parent is added to the basic obligation. If coverage is provided without cost to the parent(s), then zero should be entered as the amount. If health insurance coverage is provided through an employer, only the child(ren)'s portion should be added. In determining the amount to be added, only the amount of the insurance cost attributable to the child(ren) subject of the child support order shall be included, such as the difference between the cost of insuring a single party versus the cost of family coverage. In circumstances where coverage is applicable to persons other than the child(ren) subject of the child support order, such as other child(ren) and/or a subsequent spouse, the total cost of the insurance premium shall be prorated by the number of persons covered to determine a per person cost.
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 21 of 24 [36] The trial court found that Father’s health insurance premiums cost him $338
per month, with $269 of that monthly amount providing coverage for the
children, or $62 per week for H.T. and S.T. The trial court stated that Father’s
calculation for this amount was correct. Appellant’s App. Vol. II p. 41.
[37] Mother argues that Father’s calculations were erroneous, but Mother fails to
provide a record of those calculations for us to review. See generally Appellant’s
App Vol. II. As the appellant, Mother bears the burden of providing a full
record for appeal. Without it, we cannot effectively review the trial court’s
judgment. See, e.g., Finke v. N. Ind. Pub. Serv. Co., 862 N.E.2d 266, 272 (Ind. Ct.
App. 2006) (holding that appellant bears the burden of presenting a complete
record with respect to the issues raised on appeal and that we “cannot review a
claim . . . when the appellant does not include in the record all the evidence”
relevant to that claim). Therefore, this argument is unavailing.
F. H.T.’s Weeks at Home [38] Next, Mother argues that the trial court erred in calculating the number of
weeks H.T. lives at home, asserting that the trial court considered a reasonable
summer break to be ten weeks at home, whereas H.T. was home from college
for seventeen weeks. Yet Mother concedes that a change in the number of
weeks home benefits the custodial/controlled expense parent, who, in this case,
is Father. Mother contends that she is seeking child support calculated
consistent with the Guidelines so that the children receive the support to which
they are entitled, yet she concedes that the change in weeks at home would
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 22 of 24 reduce Father’s child support obligation, a change contrary to her argument on
appeal. We decline to find error on the trial court’s calculation.
G. 529 Plans [39] Mother contends that the trial court erred in transferring control of the parties’
529 Plans to Father. She states that the trial court did not have the ability to
address the issue of 529 Plans because the issue was not raised before the trial
court and that “[t]here was nothing to alert [Mother] that the Trial Court would
consider transferring control of the 529 Plans held by her to [Father].”
Appellant’s Br. p. 53.
[40] We disagree. At the October 11, 2016, hearing, Father’s counsel asked the
court to transfer control of the 529 Plans to Father. Father’s counsel argued
[Father] has been paying by himself out of his 529, uh, planning for the benefit of [H.T.] down at West Lafayette, Your Honor. Uh, the parties, uh, during the marriage set aside money and [H.T.] is requesting that the court because of this difficulty, uh, and to be, have it be, uh, (indiscernible) so that [Mother] does not cherry-pick what she wants to pay and what she doesn’t want to pay. Is that [Father] be the, uh, caretaker of the 529s. They were in place, uh, there’d have to be a transfer and it’d be tax free totally, uh, obviously, a lateral movement, not - not unlike a QUADRO [sic] from [Mother’s] name to [Father], so they can take care of the girls, uh, costs as they come due. [Mother], uh, [Father] will testify takes issue with things.
Tr. p. 18. During the hearing, Mother did not object to Father raising this
issue, nor did she present a counter-argument to Father’s request. See Glover v.
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 23 of 24 Torrence, 723 N.E.2d 924, 935 (finding that once the issue is raised, “the party
opposing the evidence must object or the issue supported by the evidence will
impliedly be consented to having been tried by that party”). The record shows
that the issue of the control of the 529 Plans was squarely before the trial court.
Mother’s argument is unavailing.
[41] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 44A03-1703-DR-485 | August 24, 2017 Page 24 of 24