MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 20 2016, 9:52 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael H. Michmerhuizen James C. Yankosky Barrett McNagny, LLP Angelica N. Fuelling Fort Wayne, Indiana Tourkow Crell Rosenblatt & Johnston, LLP Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas H. Torson, December 20, 2016 Appellant-Respondent, Court of Appeals Case No. 90A05-1602-DR-362 v. Appeal from the Wells Superior Court Vicky L. Torson, The Honorable Kenton W. Appellee-Petitioner. Kiracofe, Judge Trial Court Cause No. 90D01-1002-DR-16
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 1 of 20 Summary [1] Thomas Torson appeals the trial court’s order modifying the parties’ parenting
time and the child support order in favor of Vicky Torson. We affirm in part
and remand consistent with this decision.
Issues Thomas raises four issues for our review, which we consolidate and restate as:
I. whether the trial court abused its discretion when it included the acquisition of certain stock in his income for purposes of calculating child support and modifying Thomas’s child support payments; and
II. whether the trial court abused its discretion when it modified the parties’ parenting time.
Facts [2] Thomas and Vicky were married in 1992, and they had three sons. In February
2010, Vicky filed her petition for dissolution of marriage. In April 2010, the
parties filed their marital settlement agreement, and the trial court approved it.
The parties’ sons were thirteen, eleven, and eight years old at the time the
settlement agreement was approved. The parties agreed to share joint legal and
physical custody of their three children, one of whom has since turned eighteen.
Since then, this matter has remained contentious, and the parties have been
litigious. They have filed numerous contempt citations, petitions for rule to
show cause, and requests for modifications. Between April 2010 and October
2010, the parties filed four mediated settlement agreements. In May 2012, the
parties filed a fifth mediated agreement in which they agreed Thomas would
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 2 of 20 have sole legal custody of the children; they continued to share physical
custody. Thereafter, the parties continued to litigate issues related to custody,
child support, and parenting time.
[3] On June 11, 2015, Thomas filed a petition for modification of parenting time
schedule and related orders. At the time Thomas filed his petition, Thomas
exercised parenting time eight out of fourteen overnights, and Vicky exercised
parenting time six out of fourteen overnights. On July 22, 2015, Vicky filed a
verified petition to modify child support and post-secondary educational
expenses. At the time Vicky filed her petition, the parties’ eldest child was
responsible for one-third of his college expenses. Of the remaining two-thirds of
the college expenses, Thomas was responsible for paying sixty percent, and
Vicky was responsible for paying forty percent. In August 2015, at Thomas’s
request, the trial court appointed a guardian ad litem.
[4] After hearings on the parties’ motions, the trial court sua sponte entered
findings of fact and conclusions thereon on January 25, 2016. The trial court
modified the parties’ parenting time by ordering Thomas and Vicky to have
seven out of fourteen overnights with the minor children. The trial court
modified Thomas’s weekly child support obligation and ordered him to pay
71% of the portion of college expenses for which the parties are responsible and
ordered Vicky to pay 29% of those college expenses. Thomas now appeals.
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 3 of 20 Analysis I. Child Support
[5] “‘A trial court’s calculation of child support is presumptively valid.’” Martinez
v. Deeter, 968 N.E.2d 799, 805 (Ind. Ct. App. 2012) (quoting Young v. Young,
891 N.E.2d 1045, 1047 (Ind. 2008)). “A trial court’s decision regarding child
support will be upheld unless the trial court has abused its discretion.”
Martinez, 968 N.E.2d at 805. “A trial court abuses its discretion when its
decision is clearly against the logic and the effect of the facts and circumstances
before the court or if the court has misinterpreted the law.” Id. Where, as here,
the trial court enters findings of fact and conclusions thereon sua sponte, the
specific findings control only with regard to the issues they cover. Id. The trial
court’s findings or judgment will be set aside only if they are clearly erroneous.
In re Marriage of Sutton, 16 N.E.3d 481, 485 (Ind. Ct. App. 2014). A finding is
clearly erroneous only if there are no facts or inferences drawn therefrom to
support it. Id. “A general judgment standard applies to any issue upon which
the trial court has not found, and we may affirm a general judgment on any
theory supported by the evidence adduced at trial.” Martinez, 968 N.E.2d at
805.
[6] Indiana trial judges are granted latitude and deference in family law matters.
Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). “On appeal it is not enough
that the evidence might support some other conclusion, but it must positively
require the conclusion contended for by appellant before there is a basis for
reversal.” Id. (citation omitted). “Appellate judges are not to reweigh the
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 4 of 20 evidence nor reassess witness credibility, and the evidence should be viewed
most favorably to the judgment.” Id. (citation omitted).
(a) Provisions of an order with respect to child support or an order for maintenance . . . may be modified or revoked . . . .
(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 the modification was filed.
Ind. Code § 31-16-8-1.
A. Calculation of Thomas’s Income
[7] Thomas first challenges the trial court’s inclusion in its calculation of his
income certain stock his employer, United Parcel Service, Inc. (“UPS”), gives
him. He contends he receives the stock “in lieu of a traditional pension.”
Appellant’s Br. p. 24.
[8] The trial court found that, based on their 2014 W-2s, Vicky earned $929.33 per
week and Thomas earned $2,302.91 per week. The trial court then ordered
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 5 of 20 Thomas to pay $177.37 per week in child support. Thomas testified his annual
salary is “about $100,000.00” and that he also receives, “MIP.” Tr. p. 37.
Thomas explained:
What that is is UPS doesn’t have a pension and our pension is stock and they call them RSUs and RSU stands for ‘restricted stock units’ and what it is given, I’ll give a ball park, I’m given about [$]20-25,000 a year of stock and that’s my retirement and they are in RSU form and that means out of say $25,000.00 in stock, it’s spread out over 5 years so they only give me so much per year . . . .
Id. In an attempt to “get a better picture of what [Thomas’s] income actually
is,” the trial court questioned him further regarding the UPS stock. Id. at 303.
Thomas testified, “Yeah” when the trial court asked, “once you receive the
stock, can you sell it, trade it, do anything with it?” Id. at 302. But Thomas
characterized the stock as his retirement; “It’s a pension.” Id. Thomas
acknowledged the stock payments are reflected on his W-2 and also stated,
“since they did away with our pension they do a 3% match on 401(K) and we
get stock and that’s what our retirement is going to be is our stock and that
whatever.” Id. Thomas testified he believed his income is reflected on his pay
stub, not what is reflected on his W-2.
[9] Thomas correctly argues there is evidence—Thomas’s testimony—that the UPS
stock at issue is a retirement benefit, not income. But there is also evidence that
the stock is, in fact, income. Most notably, Thomas’s 2014 W-2 includes the
value of the stock in the box designated to reflect “Wages, tips, other comp.”
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 6 of 20 Ex. F. Because there clearly are facts that support the trial court’s finding
regarding Thomas’s income, that finding is not clearly erroneous. 1 Although
Thomas presented evidence favorable to his position that the UPS stock was
not income but a retirement benefit, our standard of review does not permit us
to reweigh the evidence. Mitchell v. Mitchell, 875 N.E.2d 320, 322-23 (Ind. Ct.
App. 2008), trans. denied.
B. Post-Secondary Educational Expenses
[10] Thomas contends the trial court erred by modifying the portions of post-
secondary educational expenses for which each party is responsible. The trial
court found:
3.1 On March 31, 2014, the court entered an order regarding post-secondary educational expenses, including expenses related to dual credit classes while in high school.
3.2 In summary, the parties were to share equally the costs of the dual credit classes; the child was responsible for one-third of the college expenses and the parties were to divide the remaining two-thirds. Father would be responsible for the [sic] 60% [of] the parties’ two-third portion and Mother the remaining 40%.
1 Thomas directs us to Saalfrank v. Saalfrank to support his argument. 899 N.E.2d 671 (Ind. 2008). In Saalfrank, this court concluded, “in determining whether to exclude retirement contributions, in whole or in part, for purposes of calculating a child support obligation, the trial court should consider: [seven factors].” Id. at 680. There is a key distinction between Saalfrank and this case: in Saalfrank, the parties did not dispute that the money in question was a retirement benefit. In this case, however, the very issue is whether the UPS stock should be characterized as income or a retirement benefit. Because in this case the trial court found Thomas’s UPS stock was income, not a retirement benefit, Saalfrank is inapplicable.
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 7 of 20 *****
3.5 Based upon the parties’ respective incomes, the Court finds that the child is responsible for one-third of the college expenses and the parties shall divided [sic] the remaining two-thirds, with Father being responsible for 71% and Mother being responsible for 29%.
App. p. 26.
[11] Thomas contends the trial court did not explain why it ordered the modified
division of college expenses and that “[t]here was no evidence presented
demonstrating a change in circumstances ‘so substantial and continuing as to
make the terms unreasonable’ that would permit a modification under Indiana
Code § 31-16-8-1(b)(1).” Appellant’s Br. p. 43 (no citation in original). We
review a trial court’s decision to order the payment of post-secondary
educational expenses for an abuse of discretion. Hirsch v. Oliver, 970 N.E.2d
651, 662 (Ind. 2012). Because the trial court did not make a finding regarding
its reason for modifying the parties’ division of post-secondary educational
expenses, we may affirm the trial court’s order in this regard “on any theory
supported by the evidence adduced at trial.” Martinez, 968 N.E.2d at 805.
[12] We conclude the evidence of the parties’ incomes—Thomas’s 2013 and 2014
W-2s and Vicky’s 2013 and 2014 federal tax returns—amply support the trial
court’s order regarding the division of post-secondary educational expenses.
Between 2013 and 2014, Thomas’s W-2s reflect his wages increased by
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 8 of 20 $14,233.2 See Ex. E. Vicky’s total income, however, increased by a more
modest $3,222. See Ex. B and C. Further, Thomas’s 2014 wages equal
approximately seventy-one percent of the parties’ combined incomes, the same
percentage of the post-secondary educational expenses that the trial court
ordered Thomas to pay. Thomas’s increased income is a “changed
circumstance so substantial and continuing as to make the terms [of the child
support order] unreasonable.” I.C. § 31-16-8-1; see Apter v. Ross, 781 N.E.2d 744
(Ind. Ct. App. 2003) (concluding father’s increased income constituted a
substantial change in circumstances warranting a modification of child
support). The trial court did not abuse its discretion by modifying this portion
of the child support order.
C. Parenting Time Credit
[13] Thomas next contends that the trial court abused its discretion by retroactively
modifying the child support order to the date Vicky filed her petition. He does
not expand on that assertion, however. Instead, the bulk of his argument
focuses on the fact that the trial court’s order modifying child support gave him
credit for only 180 overnights when, in fact, Thomas exercised eight out of
fourteen consecutive nights of parenting time—“57.143% of the parenting
time”—between the date Vicky filed her petition and the date the modification
went into effect. Appellant’s Br. pp. 27-28. To the extent Thomas argues the
2 Thomas again contends the trial court erred by including the UPS stock in its income calculation. We do not revisit that argument.
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 9 of 20 trial court erroneously modified its child support order retroactively, we
conclude he has waived it for failure to make a cogent argument as required by
Indiana Appellate Rule 46(A)(8)(a).
[14] With regard to the credit for overnight parenting time, Thomas correctly notes
that during the six months that passed between the date the retroactive order
took effect and the date the modified parenting time schedule took effect, he
exercised parenting time for eight out of fourteen consecutive nights rather than
seven out of fourteen nights. The difference between the child support
calculation with Thomas’s scheduled parenting time and that with which the
trial court credited him is minimal. Vicky calculates the difference is $68.85.
[15] Thomas faults Vicky for not setting out the manner in which she calculated that
figure and asks this Court to remand this matter to the trial court for a new
calculation of his parenting time credit. However, Thomas does not expressly
argue Vicky’s calculation is inaccurate, nor does he provide us with an alternate
calculation. We thus conclude that Thomas has failed to make a cogent
argument that Vicky’s calculation is incorrect or that he is owed a credit in a
different amount, and we accept Vicky’s calculation. Even if Vicky’s
calculation is incorrect, the credit is de minimus.
[16] We see no wisdom in asking the parties and trial court to expend additional
time and financial resources continuing to litigate this issue on remand for a
mere $68.85. Accordingly, we direct the trial court to modify its order to reflect
a $68.85 credit to Thomas.
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 10 of 20 II. Modification of Parenting Time
[17] Thomas next argues that the trial court erred by rejecting his proposed
modification of parenting time and instead modifying the parties’ parenting
time in favor of Vicky.
[18] The trial court issued detailed findings of fact related to Thomas’s request for a
modification of parenting time. It found:
1.8 In his Petition to Modify, Father states the chronic areas of dispute include the children’s school work, school projects, grades, sports activities, sports practices and conditioning schedules, as well as telephone and personal contact with the boys and lost sports equipment.
1.9 In its July 17, 2015 Order, the Court addressed the issues of telephone and personal contact as well as lost sports equipment. The Court now reiterates that the boys are really young men and are ultimately responsible for their own sports equipment. Further, each child has their own cell phone and can contact the other “off-duty” parent whenever they desire.
*****
1.11 The Court finds that the current custody and parenting time schedule clearly is not working due in large part to what it observes as Father’s relentless controlling and competitive personality. Ordinarily, the Court would modify the parenting time schedule to a more traditional parenting time arrangement; however, the children’s extracurricular activities are numerous and lengthy. The Court has concerns that Father would use any change in the children’s performance at school to blame Mother, thus prompting further litigation.
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 11 of 20 1.12 To say that Father is extremely active in his children’s curricular and extracurricular activities is an understatement. Evidence presented shows that Father is in regular communication, if not almost daily in some circumstances, with the children’s teachers, guidance counselors and coaches.
1.13 On some occasions, Father emails teachers moments after the grades for various assignments, quizzes and tests are reported on an online database.
1.14 Dr. Amanda Mayle testified that in her opinion Father would be a better physical custodian than Mother. The Court finds, however, that Dr. Mayle provides regular counseling for Father and the children. Other than the initial assessment of Mother, Dr. Mayle has not provided any counseling to Mother or consulted with Mother regarding any of the alleged failures of Mother as a parent.
1.15 Father claims the children’s grades suffer when in Mother’s care; however, the children are currently on the honor roll and maintain grades of A’s and B’s.
1.16 Father cites two instances where the current parenting time arrangement interfered with the children’s extracurricular activities.
1.16.3 These two incidents are so inconsequential and trivial it is unbelievable that two days were spent arguing over incidents like them.
1.17 Father further points to a situation when the child was an hour and half late for a practice. Mother testified that she
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 12 of 20 mistakenly thought the practice was in Marion, Indiana where it has been at times. Instead the practice was in Wabash, Indiana. The Court notes that Father helps coach this team and could have provided transportation to the practice. He does, however, provide transportation to other players on the team.
1.18 Since the parties[’] divorce was granted in 2010, the children have had regular, frequent, and continuing contact with each parent.
1.19 Father has maintained now, as he has previously, that Mother’s parenting time should be limited because the children’s school performance is worse when in her care. Father hasn’t presented any evidence of this. To the contrary, the children are honor roll students. Further, Father does not present any evidence that Mother fails to have the children do homework or study for tests.
1.20 Father maintains that the above facts warrant a modification of parenting time. He desires and believes it will be in the children’s best interest that Mother’s parenting time be limited to a more traditional parenting time arrangement. For example, overnight parenting time every other weekend and one evening during the week.
1.23 As noted above, Mother and Father have joint physical custody, and share near equally parenting time. In a 14 day period, Father has the children 8 consecutive days and Mother has the children the remaining 6 consecutive days.
1.24 Father’s request would reduce Mother’s overnights in a two-week period to two consecutive days.
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 13 of 20 1.25 The Court finds that Father’s request is merely an end run around the statutory requirement of showing of a substantial change of circumstance for a modification of physical custody. Essentially, Father’s request is a de facto modification of custody. Along that line, the Court does not find that there has been a substantial change in any of the statutory requirements required at I.C[.] 31-17-2-8 and DENIES Father’s requested change.
1.26 The Court does find, however, that a modification of the current parenting time arrangement would be in the best interest of the children. Currently, the parties have “joint physical custody” which is not defined by law. Based on the testimony and evidence presented, the Court finds that the current parenting time arrangement should be modified to an equal division. Therefore, Mother and Father shall each have parenting time for seven (7) consecutive days beginning Sunday at 6:00 p.m., unless otherwise agreed by the parties.
App. pp. 23-25.
[19] Before addressing the substance of Thomas’s argument, we note a repeated
inconsistency therein. Although Thomas styled his June 11, 2015, motion as a
“Petition for Modification of Parenting Time Schedule and Related Orders,”
his prayer for relief in that motion requests “an order granting him primary
physical custody of the children . . . .” App. p. 226. A request to modify
parenting time and a request to modify a child custody order require very
different determinations. “The court may modify an order granting or denying
parenting time rights whenever modification would serve the best interests of
the child.” Ind. Code § 31-17-4-2. In order to modify a child custody order,
however, the trial court must determine the modification is in the best interest
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 14 of 20 of the child and “there is a substantial change in one (1) or more of the factors
that the court may consider under [Indiana Code Section 31-17-2-8] and, if
applicable, section 8.5 of this chapter.” I.C. 31-17-2-21.
[20] Thomas’s petition for modification did not allege a substantial change in
circumstances, nor did he argue in his closing statement to the trial court that
any such change had taken place. In both his petition for modification of
parenting time and his closing statement he contended his request for increased
parenting time was in the children’s best interest; however, his petition for
modification stated he “believes it to be in the boys’ best interest that he be their
primary physical custodian.” App. p. 226.
[21] On appeal, Thomas frames this issue as one of modifying parenting time, and
he seems to take issue with the trial court’s characterization of his petition for
modification as an “end run” around the substantial change showing necessary
to support a change of custody. Id. at 25. He seems to argue, primarily, that a
modification of parenting time in his favor was in the children’s best interests.
He also seems to advance an alternative argument that he presented sufficient
evidence of substantially changed circumstances to support a modification of
custody. He states:
[E]ven if Thomas’s request was simply a request for a de facto modification, the Trial Court still had the discretion to modify custody to a degree less than a de facto modification . . . if the modification would be in the children’s best interests. Moreover, the evidence demonstrates that there was a substantial change
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 15 of 20 justifying a modification of custody, as opposed to a modification of parenting time.
Appellant’s Br. p. 32. This argument is, at best, confusing.
[22] Thomas does not make a cogent argument detailing the substantial changes to
the statutory factors required to obtain a custody modification, nor does he
provide citations to authority to support his contention regarding a substantial
change. Therefore, to the extent Thomas argues the evidence was sufficient to
support a modification of physical custody, we conclude he has waived that
argument because he has failed to make a cogent argument on appeal. See Ind.
Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the
appellant on the issues presented, supported by cogent reasoning [and] must be
supported by citations to the authorities . . . relied on”). We thus confine our
review to the trial court’s decision to increase Vicky’s parenting time from six
consecutive days to seven.
[23] First, Thomas challenges a portion of finding 1.19, in which the trial court
found Thomas has not presented any evidence that the children’s school
performance is worse when they are in Vicky’s care. We note that the next
sentence in that finding is: “To the contrary the children are honor roll
students.” App. p. 24. The trial court also found that the children “maintain
grades of A’s and B’s.” Id. We acknowledge there is evidence that the children
sometimes earn C’s, D’s, and F’s on individual projects and homework
assignments. Thomas testified the children earn these lower grades on
schoolwork they complete at Vicky’s house. The guardian ad litem testified Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 16 of 20 that he carefully reviewed the children’s grades and noticed “an abnormally
large number of grades day to day and week to week that are below what you
would expect for an A student or a B student.” Tr. p. 110. He looked at the
dates on which assignments were completed and stated the school records “do
lend some support for [Thomas’s] proposition.” Id. at 111. However, the
guardian ad litem also testified that, despite some outlying low grades, “we’re
talking about close to straight A students and a little room for improvement I
guess until you get to 4.0 but they certainly strike me as gifted.” Id. at 110.
[24] We read the trial court’s findings more broadly than Thomas seems to. We
acknowledge that there may be “some support” for Thomas’s theory that the
children earn some lower grades on some assignments they complete while in
Vicky’s care, but, overall, the children are excelling in school. Id. at 110. There
is no evidence that spending time in Vicky’s care has negatively affected their
overall academic performance. We thus conclude the evidence supports the
trial court’s finding in this regard.
[25] Thomas also contends “a review of the entire record should leave this Court
with a firm conviction that the Trial Court was mistaken.” Appellant’s Br. p.
32. We note that the trial court did not make specific findings stating why it
believed the modification of parenting time it chose was in the children’s best
interests. It did, however, find that it would “[o]rdinarily” modify the parenting
time schedule to a more traditional arrangement but that it had “concerns that
Father would use any change in the children’s performance at school or
athletics to blame Mother, thus prompting further litigation.” App. p. 23.
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 17 of 20 [26] Thomas directs us to the evidence in the record that is most favorable to his
position. In particular, Thomas argues that Dr. Mayle’s testimony supports his
position. We note that the trial court acknowledged that Dr. Mayle testified it
was her opinion that Thomas would be a better physical custodian than Vicky.
But the trial court did not give that testimony as much weight as Thomas would
have liked because Dr. Mayle regularly counsels Thomas and the children but
“has not provided any counseling to Mother or consulted with Mother
regarding any of the alleged failures of Mother as a parent.” App. p. 23. “[T]he
weight to be given expert testimony is for the trier of fact to decide, and it is not
bound by an expert’s opinion. Moreover, the trial court may even disregard
such opinion if it so desires.” Indiana Family & Soc. Serv. Admin. V. Hospitality
House of Bedford, 783 N.E.2d 286, 292 (Ind. Ct. App. 2003). Our standard of
review does not permit us to reweigh the evidence. Mitchell, 875 N.E.2d at 322-
23.
[27] Because the trial court did not make specific findings explaining its
modification of parenting time, we review the trial court’s judgment under the
clearly erroneous standard and will reverse it only if there are no facts or
inferences drawn from the evidence that support the judgment. Sutton, 16
N.E.3d at 485. In response to the question, “what changes could be made to
make things better if they’re doing so well for your kids?” Vicky testified:
You know right now the way we are doing it, it is breaking right in the middle of the week. I mean that’s right in the middle of their week, it[’]s mid-week. It’s kind of, you know, yes, we’ve been doing it for years but [one child] will still ask when are we
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 18 of 20 at dad’s, when are we at your house on dates. You know, if it could just be more consistent, you know, Sunday to Sunday or whatever, I think that would help a lot.
Tr. p. 228. Vicky also testified that she thinks it is important for the children’s
well-being that they “spend a similar amount of time with [her] that they have
right now” because she thinks it is “very important to spend as much time with
both parents as they can. Kids need both of their parents.” Id. She explained
she thinks the children need the “balance” that comes with a near 50/50 split
between the parties’ parenting time and that she thinks the children “need us
both the same and [that] taking large blocks of time away from one or the other,
I don’t see how that helps.” Id. at 233-34. These facts support the trial court’s
conclusion that the modification of parenting time is in the children’s best
interests. We thus conclude that the trial court’s judgment was not clearly
erroneous.
Conclusion [28] The trial court did not abuse its discretion by including certain stock in its
calculation of Thomas’s income, nor did it abuse its discretion when it modified
the portions of post-secondary educational expenses for which the parties are
responsible. The trial court did not abuse its discretion by modifying the parties
parenting time. We remand this matter, however, so that the trial court may
reconsider Thomas’s credit for parenting time exercised between July 22, 2015,
and January 25, 2016. We affirm in part and remand for corrections consistent
with this decision.
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 19 of 20 Affirmed in part and remanded.
Bailey, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 90A05-1602-DR-362 | December 20, 2016 Page 20 of 20