Sep 14 2015, 8:27 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Dominic W. Glover William S. Frankel, IV
Columbus, Indiana Wilkinson, Goeller, Modesitt,
Wilkinson & Drummy, LLP
Terre Haute, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bryan E. Mitten, September 14, 2015
Appellant-Petitioner, Court of Appeals Case No.
11A01-1501-DR-8
v. Appeal from the
Clay Superior Court
Cynthia L. Mitten, The Honorable J. Blaine Akers,
Appellee-Respondent. Judge
Trial Court Cause No.
11D01-1307-DR-400
Kirsch, Judge.
[1] Bryan E. Mitten (“Father”) appeals the trial court’s decree of dissolution
(“Decree”) that dissolved his marriage to Cynthia L. Mitten (“Mother”),
raising five issues that we consolidate and restate as:
I. Whether the trial court’s determination of Father’s child
support obligation was an abuse of discretion; and
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 1 of 25
II. Whether the trial court abused its discretion in its division of
the parties’ debts.
[2] We affirm.
Facts and Procedural History
[3] Father and Mother were married in June 2005,1 and, during the marriage,
Father adopted Mother’s biological child (“Child”), born in June 2000. On
July 16, 2013, Father petitioned for dissolution of their marriage. On or near
the time of filing, Father moved out of the marital residence, and Mother
continued to reside in the home with Child. No provisional hearing was
requested or held, but during the pendency of the action, Father paid $6,655.87
toward the mortgage on the marital residence, as well as utilities and property
taxes on it.
[4] At the March 4, 2014 final hearing, the parties stipulated to the trial court that
Mother would have primary physical custody of Child, and Father would be
entitled to overnight visitation with Child in accordance with Parenting Time
Guidelines. The parties also submitted lists of personal property that each
would retain, including each party taking his or her vehicle and the associated
1
Although the trial court’s Decree of Dissolution states that the parties married on June 14, 2006, Appellant’s
App. at 11, both parties indicate that they were married on June 17, 2005. Appellant’s Br. at 3; Appellee’s Br. at
3.
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 2 of 25
debt. Tr. at 5. Because Father’s debt on his truck was greater, the parties
agreed that Father would retain his 401(k) pension. Id. at 6.
[5] At the hearing, the parties testified to their respective incomes. Mother testified
that, during the marriage, Father lost his job and the available health insurance
for Child, so she left her job and took another that offered health insurance. Id.
at 54. She testified that she paid $88.52 per week for Child’s health, dental, and
vision coverage. With regard to visitation, Mother testified that Father
exercised very little parenting time with Child, who was in eighth grade at the
time of the hearing. She observed that Child did not desire to exercise visitation
with Father, stating that Child’s diagnosed ADHD condition contributed to
Child having difficulty with transitions, but that “in time” she believed
visitation and relationship with Father would improve. Id. at 49. She testified
that she was in favor of Father and Child having a relationship and that she
encouraged phone calls and visitation. Father’s testimony acknowledged that
Child did not desire to exercise visitation, but Father testified that, out of
concern that it might exacerbate Child’s ADHD conditions, Father
intentionally had not “pushed” Child to stay with him. Id. at 27. Between the
parties’ separation in June 2013 and the final hearing in March 2014, Father
had not exercised any overnight visitation.
[6] The trial court issued findings and conclusions that calculated child support in
the amount of $235.00 per week. The trial court’s child support calculation
credited Mother with paying $88.52 per week in health insurance premiums for
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 3 of 25
Child. With regard to Father’s visitation and any credit for overnight visitation,
the trial court stated,
The Court finds the parties agreed [Father’s] parenting time
would be pursuant to the Indiana Parenting Time Guidelines.
There was testimony that [Father] has not had any overnight
parenting time with the minor child since the separation of the
parties, or that overnight parenting times were minimal. In
calculating child support, the Court has taken this testimony into
account, even though the parties have agreed parenting time with
the child is to be in accordance with the Indiana Parenting Time
Guidelines. [Note: Should [Father] in the future, actually have
parenting time overnights with the child, i.e. every other weekend, then
the Court would entertain a[] jointly filed modification agreement or
motion by [Father] to modify child support.]
Appellant’s App. at 12 (emphasis in original). The trial court ordered that the
$235.00 per week support obligation was retroactive to the first Friday
following the date the petition was filed, which resulted in an arrearage of
$13,360.00. However, the Decree applied a credit of $2,216.40 against that
arrearage; the credit represented 33.3% of the payments that Father voluntarily
made during the pendency of the matter toward the mortgage and utilities on
the marital residence.
[7] The trial court determined that “neither party has rebutted the presumption” of
equal division of the marital estate. Id. at 23. In dividing property, the Decree
recognized that the parties had agreed to division of certain assets and debts,
including that associated with their respective vehicles and other miscellaneous
items of personal property, which the court did not expressly value because the
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 4 of 25
parties had not provided values to the court. As is relevant to this appeal,
Mother received in the property division, the net proceeds of the sale of the
marital residence, which were $1,724.30, and Father received his 401(k). The
trial court ordered Father to pay the following debts: (1) $6,836.99 One Main
Debt; (2) $1,912.19 Fifth Third credit card; and (3) $4,117.39 Capital One credit
card. It ordered the parties to split equally the following debts: (1) $1,000.00
loan repayment to Mother’s mother; (2) approximately $3,533.00 in bills to St.
Vincent Hospital; and (3) $346.00 to Northside Anesthesia.
[8] Father filed a Motion to Reconsider or In the Alternative Motion to Correct
Errors, asserting that the trial court erred in the following respects: (1) in its
division of debts; (2) in making the child support obligation retroactive to the
date of filing; (3) in giving Mother a credit of $88.52 per week for health
insurance costs; (4) in failing to give Father credit for overnight visitations; and
(5) in crediting Father $2,216.40 toward his support arrearage obligation, which
represented 33.3% of the total amounts he paid during the pendency of the
action. Following a hearing, the trial court determined it had committed error
in its prior finding that neither party had rebutted the presumptive equal
division of the marital estate, stating, “[A]n equal division is not just and
reasonable in light of [Mother’s] contribution [to the acquisition of the marital
home] . . . and that [Mother] did rebut the presumption of equal division.” Id.
at 49. The trial court did not, however, modify its prior support order or its
division of assets and debts, thereby denying Father’s requests. Father now
appeals.
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 5 of 25
Discussion and Decision
[9] The trial court's decision on a motion to correct error comes to an appellate
court cloaked in a presumption of correctness. Page v. Page, 849 N.E.2d 769,
771 (Ind. Ct. App. 2006). We review the denial of a motion to correct error for
an abuse of discretion. Lovold v. Ellis, 988 N.E.2d 1144, 1149-50 (Ind. Ct. App.
2013). An abuse of discretion occurs when a trial court’s decision is against the
logic and effect of the facts and circumstances before the court or if the court
has misinterpreted the law. Id. at 1150. When reviewing a decision for an
abuse of discretion, we consider only the evidence and reasonable inferences
favorable to the judgment. Id.
[10] Where, as here, the trial court issues specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Without reweighing the
evidence or assessing the credibility of witnesses, we must determine, first,
whether the evidence supports the findings, and second, whether the findings
support the judgment. Ind. Trial Rule 52(A); Tompa v. Tompa, 867 N.E.2d 158,
163 (Ind. Ct. App. 2007). Findings are clearly erroneous if there are no facts in
the record to support them either directly or by inference, and a judgment is
clearly erroneous if the wrong legal standard is applied to properly found facts.
Birkhimer v. Birkhimer, 981 N.E.2d 111, 118 (Ind. Ct. App. 2012). “In order to
determine that a finding or conclusion is clearly erroneous, our review of the
evidence must leave us with the firm conviction that a mistake has been made.”
Leonard v. Leonard, 877 N.E.2d 896, 900 (Ind. Ct. App. 2007). We consider
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 6 of 25
only the evidence favorable to the trial court’s judgment. Turner v. Turner, 785
N.E.2d 259, 263 (Ind. Ct. App. 2003).
I. Child Support Calculation
[11] A trial court’s calculation of child support is presumptively valid. Bogner v.
Bogner, 29 N.E.3d 733, 738 (Ind. 2015). We review decisions regarding child
support for an abuse of discretion. Lovold, 988 N.E.2d at 1149-50. An abuse of
discretion occurs when a trial court’s decision is against the logic and effect of
the facts and circumstances before the court or if the court has misinterpreted
the law. Id. at 1150. When reviewing a decision for an abuse of discretion, we
consider only the evidence and reasonable inferences favorable to the judgment.
Id.
A. Mother’s Credit for Health Insurance Premiums
[12] Father argues that the trial court erred when, in calculating child support, it
credited Mother with paying $88.52 per week in health insurance premiums for
Child. Indiana’s Child Support Guidelines direct that “[t]he weekly cost of
health insurance premiums for the child(ren) should be added to the basic
obligation whenever either parent actually incurs the premium expense or a
portion of such expense.” Ind. Child Supp. G. 3(E)(2). The commentary to
this Guideline explains that this is accomplished by giving a credit to the parent
who actually pays the cost. Child Supp. G. 3(E)(2), cmt.; see also Johnson v.
Johnson, 999 N.E.2d 56, 59 (Ind. 2013). The Guidelines also provide for a
worksheet adjustment for the weekly cost of health insurance premiums.
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 7 of 25
Guideline 3(G)(3) provides, “The parent who pays the weekly premium cost for
the child(ren)’s health insurance should receive a credit towards his or her child
support obligation in most circumstances.”
[13] Here, in calculating child support, the trial court credited Mother with $88.52
per week that she pays in health insurance costs for Child. With regard to the
issue of the health insurance costs, the trial court’s order on Father’s motion to
correct error explained and found:
Given the weight of all evidence, the Court finds, at this time, the
$88.50 insurance cost, attributed to the child support obligation
worksheet, to be reasonable insurance costs; however, the Court
does enter an order finding a deviation for the child support
guidelines for the reason the only testimony before the Court is
that these are the actual medical insurance costs incurred by
[Mother] that are attributable to the minor child.
Appellant’s App. at 40 (emphasis in original).
[14] Father’s argument is that the $88.52 amount exceeds “a reasonable cost” as
defined by Guideline 7 of the Indiana Child Support Guidelines, which
provides, in part:
The court shall order one or both parents to provide private
health care insurance when accessible to the child at a reasonable
cost.
....
Reasonable cost. The cost of private health insurance for
child(ren) is considered reasonable, if it does not exceed five
percent (5%) of the Weekly Gross Income of the parent obligated
to provide medical support. The cost of private health insurance
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 8 of 25
for the child(ren) is not considered reasonable when it is
combined with that party’s share of the total child support
obligation (Line 4 of the Worksheet) and that sum exceeds fifty
percent (50%) of the gross income of the parent responsible for
providing medical support.
A consideration of the foregoing factors is addressed in the
Health Insurance Premium Worksheet (HIPW), which should be
utilized in determining the appropriate adjustments for the
child(ren)’s health insurance on the Child Support Obligation
Worksheet.
Child Supp. G. 7. Commentary to Guideline 7 further discusses health
insurance premium costs:
Health Insurance Premiums.
The court is federally mandated to order accessible private health
care insurance if the cost is at or below 5% of the Weekly Gross
Income of a parent as indicated in the Child Support Obligation
Worksheet. If above 5% of Weekly Gross Income, the court has
discretion to require the health insurance premium be paid by a parent if
the court indicates the reason for the deviation.
Child Supp. G. 7, cmt. (emphasis added). Father argues that Mother’s weekly
gross income was determined to be $794.05, and that the “reasonable cost” of
health insurance is 5% of that figure. Thus, he argues, “At most the trial court
should have limited the cost to $39.70 per week which is 5% of Mother’s
Weekly Gross Income as found by the Court.” Appellant’s Br. at 7. Upon
review, we find no abuse of discretion for several reasons.
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 9 of 25
[15] Initially, we observe that Guideline 7 provides that the “court shall order one or
both parents to provide private health care insurance when accessible to the child at
a reasonable cost.” Child Supp. G. 7 (emphasis added). Here, the trial court is
not ordering a parent to provide the health insurance; rather, Mother is
voluntarily paying the health care costs. However, assuming without deciding
that application of the reasonableness tests of Guideline 7 is nevertheless
warranted, we observe that the commentary to Guideline 7, while providing
instruction regarding completion of the HIPW, sheds light on the
“reasonableness” inquiry, discussing that there are two tests:
Section Three: Determination of Whether Premium is
Reasonable in Cost.
There are two tests to determine if the cost of the health
insurance premium is reasonable to a parent. Both tests must be
satisfied for the cost to be reasonable. The first test determines
whether the health insurance premium cost exceeds five percent
(5%) of the parent’s Weekly Gross Income. The second test
determines whether the parent’s portion of the child support
obligation plus the health insurance premium cost exceeds fifty
percent (50%) of the parent’s Weekly Gross Income.
Child Supp. G. 7, cmt. Here, the second test outlined in Guideline 7,
concerning “whether the parent’s portion of the child support obligation plus
the health insurance premium cost exceeds fifty percent (50%) of the parent’s
Weekly Gross Income” does not yield a result indicating the $88.52 is
unreasonable. That is, the $88.52 added to Mother’s portion of the total weekly
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 10 of 25
child support obligation does not result in a figure above 50% of her weekly
gross income.2
[16] In any event, even if the $88.52 were deemed “unreasonable,” the commentary
to Guideline 7 provides, “If above 5% of Weekly Gross Income, the court has
discretion to require the health insurance premium be paid by a parent if the
court indicates the reason for the deviation.” In this case, the trial court
expressly recognized “a deviation . . . for the reason [that] the only testimony
before the Court is that these are the actual medical costs incurred by [Mother][.]”
Appellant’s App. at 40 (emphasis in original). Additionally, the commentary to
Guideline 7, while giving direction on how to complete Section Five of the
HIPW, similarly recognizes trial court discretion in the matter of health
insurance, stating:
Mark the parent or parents who are ordered to provide health
insurance. If both parents are ordered, mark both boxes. Enter
the amount from Line D in the box next to the parent(s) who are
ordered to provide the insurance, and indicate the “Total
Ordered.” Please note that the court may use its discretion to order or
not order health insurance coverage even when all tests are met or not
met.
Child Supp. G. 7, cmt. (emphasis added). Indeed, our Supreme Court has
directed that the “‘Guidelines are not immutable, black letter law, but provide
2
Mother’s portion of the weekly child support obligation was $99.14. Appellant’s App. at 27. Adding the
$88.52 health insurance cost to Mother’s $99.14 portion of the weekly child support obligation equals
$187.66, which is less than 50% of Mother’s $791.05 weekly gross income figure.
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 11 of 25
‘room for flexibility.’” Bogner, 29 N.E.2d at 739 (citing Child Supp. G. 1, cmt.;
Garrod v. Garrod, 655 N.E.2d 336, 338 (Ind. 1995)). We thus find that the
Guidelines extend great deference to trial courts, including in assigning
responsibility for maintaining health insurance costs and crediting a parent for
payment of it.
[17] Turning to the record before us, the undisputed evidence is that Mother pays
$88.52 every week. Child has been diagnosed with ADHD, and he is actively
being treated for it, taking “top tier” daily medications and attending doctor
visits every few months. Tr. at 56. Father has not indicated that he can or will
provide insurance or that any equivalent insurance is available at a lesser
weekly cost. Even if other, less expensive insurance were available to Mother
or Father, it would need to be determined if this would increase any deductible
and/or reduce benefits. Based on the language of the Guidelines and the
accompanying commentary, we believe that Guideline 7 is not intended to
prevent parties from maintaining health insurance for minor children, even if
that exceeds what is considered “reasonable” under the two tests outlined in
Guideline 7. It is a matter left to the trial court’s discretion, and we find no
abuse of discretion here in the trial court’s decision to credit Mother with
$88.52 per week in health care costs.
B. Credit for Overnight Visitation
[18] Father argues that the trial court abused its discretion in its child support
calculation by not giving Father more credit for overnight parenting time. Our
Supreme Court has held:
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 12 of 25
The Guidelines currently provide that “[a] credit should be
awarded for the number of overnights each year that the
child(ren) spend with the noncustodial parent.” Ind. Child Supp.
G. 6 (emphasis added). This credit is awarded out of recognition
that “overnight visits with the noncustodial parent may alter
some of the financial burden of the custodial and noncustodial
parents in caring for the children.” Although the prior language
under the Guidelines stated that the trial court “may grant the
noncustodial parent a credit,” we continue to hold that the trial
court is not required to award parenting time credit based upon
overnights. Ind. Child Supp. G. 3(F)(4) (emphasis added); Ind.
Child Supp. G. 6.
Bogner, 29 N.E.3d at 743 (internal case citations omitted). The Bogner Court
further explained, “Given the indefinite nature of when an overnight truly shifts
the financial burden from one parent to the other, we cannot conclude that the
parenting time credit is mandatory.” Id.
[19] Here, with regard to credit for overnight visitation, the trial court concluded:
The rationale behind the parenting time credit is that overnight
visits with the noncustodial parent may alter some of the
financial burden of the custodial and noncustodial parents in
caring for the children. Young v. Young, 891 N.E.2d 1045 (Ind.
2008). Here, the Court finds that [Father] has demonstrated a
pattern of minimal overnight visits with [Child] and, based upon
evidence the Court considers relevant, the Child support
Obligation Worksheet will credit [Father] with 0-51 overnights
annually.
Appellant’s App. at 20-21 (Conclusion of Law I). Father argues that crediting
Father with 0-51 overnights was an abuse of discretion because the parties
stipulated at the March 2014 final hearing that Father was entitled to parenting
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 13 of 25
time pursuant to Indiana’s Parenting Time Guidelines, which includes 98
overnights.
[20] The trial court did not fail to recognize that the parties had agreed that Father
would be entitled to exercise visitation pursuant to the Parenting Time
Guidelines, as Father’s argument suggests. Indeed, the trial court’s Findings
expressly acknowledged that the parties had so agreed, but it determined that
the testimony at the final hearing reflected Father had exercised minimal
overnight visitation with Child, if any, since the parties separated. Id. at 12
(Finding of Fact No. 4). Our review of the record reveals that, Father testified
at trial that he had “spent very little time with [Child]. He doesn’t want to see
me.” Tr. at 14. Father continued to explain, “[H]e’s busy. He doesn’t want to
go.” Id. Father indicated that he spoke to Child on the phone “most
weekends,” but the last time Father had seen Child before the March 2014 final
hearing, was on the prior Christmas Eve.3 Id. at 15, 26-27. With regard to
overnight visitations, Father reported that Child had not exercised an overnight
visitation “since I’ve moved out of the house,” explaining, “’Cause he does not
want to stay with me.” Id. at 15, 26.
[21] Father expressed that Child’s ADHD may be a contributing factor to problems
with the exercise of visitation, stating that the ADHD is “one of the reasons I
haven’t pushed him staying with me and such. Because I don’t want him to get
3
At the time of the final hearing, Child was in the eighth grade.
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 14 of 25
all upset.” Id. at 27. In Mother’s testimony, she likewise stated that “With
ADHD . . . They don’t like change at all” and that Child “does not deal with
change very well.” Id. at 49. Mother further testified regarding visitation:
So I think, in time, I think . . . [Father’s] doing what he needs to
do as far as the phone calls. I just think it’s going to take [Child]
a little bit more time than normal. But I . . . fully support
[Father] seeing [Child.]
Id. at 49.
[22] Father testified that it was his desire to exercise visitation with Child, and he
requested at trial that he receive credit for 98 overnight visitations, pursuant to
the Parenting Time Guidelines. Father continued that, even if Child did not
exercise the overnights, he nevertheless believed he should receive credit for 98
overnight visitations because, given that Father was being considerate in not
wanting to force visitation and upset Child, “why should I be penalized for . . .
thinking about his welfare.” Id. at 28.
[23] Concerning overnight visitations, the trial court found,
There was testimony that [Father] has not had overnight
parenting time with the minor child since the separation of the
parties, or that overnight parenting times were minimal. In
calculating child support, the Court has taken this testimony into
account, even though the parties have agreed parenting time with
the child is to be in accordance with the Indiana Parenting Time
Guidelines. [Note: Should [Father] in the future, actually have
parenting time overnights with the child, i.e. every other weekend, then
the Court would entertain a[] jointly filed modification agreement or
motion by [Father] to modify child support.]
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 15 of 25
Id. at 12 (Finding of Fact 4) (emphasis in original).
[24] Our review of the record reveals that the trial court’s findings concerning
overnight visitation were supported by the evidence at trial, and that the trial
court’s findings support its conclusions. Father has failed to establish that the
trial court abused its discretion when it decided to credit Father with 0-51
overnights annually.
C. Credit to Father for Payments During Pendency
[25] In its decree, the trial court applied a credit toward Father’s retroactive child
support obligation in an amount equal to 33.3% of what Father voluntarily paid
in mortgage and utility payments after the parties separated and throughout the
pendency of the dissolution action. Father contends that the trial court failed to
properly credit him and thereby abused its discretion.
[26] The trial court’s findings referred to Father’s testimony that he paid $6,655.87
toward Mother’s “living expenses and the support of the minor child” between
the date of separation and the final hearing. Appellant’s App. at 13 (Finding of
Fact 7). The trial court’s findings also referred to Mother’s testimony that
Father had not paid any child support directly to her and that she had paid all
expenses associated with Child, but that Father had made payments on the
mortgage and utilities on the marital residence, where Mother and Child were
residing, during the pendency of the action. The trial court found:
The Court finds that [Father]’s payments of these specific
expenses are both in the form of temporary maintenance to [Mother],
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 16 of 25
and, in part, are in the form of child support for the benefit of the child.
The Court, below, will determine the allocation of temporary
maintenance to [Mother] and the allocation of child support to
for the minor child.
Id. at 15 (Finding of Fact 11) (emphasis in original). Thereafter, the trial court
concluded, in relevant part:
Payments made by [Father] for the mortgage, REMC, and
homeowners insurance was largely for the purpose of preserving
the marital residence and is considered by this Court to be both a
form of temporary spousal maintenance and, in part, child
support for the minor child. The Court, having considered all
relevant testimony, allocates 33.3% of the payments made . . . to
be child support. Therefore, the Court determines $2,216.40
shall be allocated as child support paid during the pendency of
this action. Additionally, 33.3% of marital residence mortgage
and utility payments made by [Father] since the final hearing are
also considered child support.
Id. at 20 (Conclusion of Law H) (emphasis in original). Father argues on
appeal that he should receive “a dollar-for-dollar credit,” Appellant’s Br. at 13,
although he argued in his motion to correct error that he should have been
credited with something more than 33.3%, suggesting 50% would be an
equitable figure. Either claim is asking us to find an abuse of discretion
occurred; upon review, we find no such error.
[27] In support of his position that he should receive “dollar-for-dollar” credit for all
the payments he made, Father cites to R.R.F. v. L.L.F., 935 N.E.2d 243 (Ind.
Ct. App. 2010). There, during a three-month period of time that no support
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 17 of 25
order was in place, the father paid for the eighteen-year-old child’s car
insurance, health insurance, and cell phone, and he bought the child a laptop
required for college. The trial court found that these constituted “non-
conforming payments” and were gratuitous or voluntary contributions, and the
trial court did not give father credit toward his child support obligation. 4 Id. at
247. The father appealed, and this court reversed, concluding that the father
should have received credit against his child support obligation for the
payments he made because the father was supporting the child “in much the
same way that he would have had the child support order been in place.” Id. at
252. In contrast to the payments made in R.F.F., here, Father’s payments
toward mortgage and utility bills were not solely for Child’s use and benefit,
and we find that R.F.F. is not determinative of the facts before us.
[28] The trial court’s decision to apply 33.3% of what Father paid in mortgage and
utility payments toward Father’s owed child support obligation was an exercise
of judgment and discretion. While Father urges that he was entitled to receive
more credit toward his obligation, he has not shown that it was against the logic
and effect of the circumstances before it for the trial court to determine that
4
The R.F.F. trial court cited to Olson v. Olson, 445 N.E.2d 1386, 1389 (Ind. Ct. App. 1983) and In re Baker,
550 N.E.2d 82, 87 (Ind. Ct. App. 1999) for the proposition that non-conforming child support payments are
generally considered gratuitous and should not be considered a prepayment of a support obligation or
credited against arrearages, except under three narrow exceptions. R.F.F. v. L.L.F., 935 N.E.2d 243, 247
(Ind. Ct. App. 2010).
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 18 of 25
33.3% was a proper percentage to allocate toward support payments. We find
no trial court error.
D. Retroactive Child Support
[29] The trial court ordered that Father’s child support obligation was retroactive to
the first Friday following the filing of the petition for dissolution. Father argues
that this was an abuse of discretion because, during the pendency of the action,
Mother did not seek provisional relief. That is, he suggests that because she did
not ask for child support, she must have been satisfied with the money that
Father was providing by way of mortgage and utility payments.
[30] In support of his position, Father cites to Boone v. Boone, 924 N.E.2d 649, 652
(Ind. Ct. App. 2010), where the opinion included the statement that “we must
presume that [Mother] was satisfied with whatever contribution Father was
making to support the child because she never engaged the courts, as was her
right, to seek more than he was giving.” Id. at 655. However, the Boone facts
are distinguishable from those before us.
[31] There, the parties had a child together in 1998 and married later that year. In
2002, they separated. Thereafter, for a period of time, the father provided
support by sending money to the mother every other week. In June 2006, the
father petitioned for dissolution in Illinois, and, thereafter, the mother instituted
proceedings through an Illinois Title IV-D office to obtain child support, but she
did not follow through with the effort. The Illinois court dismissed the action
for lack of jurisdiction because the mother lived in Indiana, and Father filed a
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 19 of 25
petition for dissolution in Indiana in November 2007. At the 2008 final
hearing, the mother requested child support retroactive to June 2006, the
approximate date that, according to the mother, she stopped receiving child
support. The trial court granted her request, and the father filed a motion to
correct error, which the trial court denied. The issue on appeal was whether the
trial court had the authority to order the father to pay child support retroactive
to a date preceding the filing of the petition for dissolution. Id. at 650, 652.
The Boone court opined that “[i]n dissolution cases, the machinery of the courts
engages when the dissolution petition is filed” and concluded that a trial court
may not order child support retroactive to a date preceding the filing of a
petition for dissolution. Id. at 654-55. While the issue and facts presented in
Boone are distinguishable, the decision expressly recognized, “Our courts have
held that an initial child support order can be retroactive to the date of the
petition for dissolution.” Id. at 652. We reject Father’s claim that the trial
court abused its discretion when it ordered that child support was retroactive to
the first Friday following the date that Father filed his petition.
II. Division of Debt
[32] Father argues that the trial court abused its discretion in the division of the
marital estate, specifically in its division of debt. The trial court’s division of
marital property is highly fact sensitive. Fobar v. Vonderahe, 771 N.E.2d 57, 59
(Ind. 2002). It is a task within the sound discretion of the trial court, and we
will reverse only for an abuse of discretion. Love v. Love, 10 N.E.3d 1005, 1012
(Ind. Ct. App. 2014). An abuse of discretion occurs if the trial court’s decision
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 20 of 25
is clearly against the logic and effect of the facts and circumstances before the
court, or if the trial court has misinterpreted the law or disregards evidence of
factors listed in the controlling statute. Id. When we review a claim that the
trial court improperly divided marital property, we will not reweigh the
evidence and must consider only the evidence most favorable to the trial court’s
disposition of the property. Id. Even if the facts and reasonable inferences
might allow for a different conclusion, we will not substitute our judgment for
that of the trial court. Id.
[33] Here, in its Decree, the trial court found that the parties had agreed to the
division of a number of assets and debts, and it distributed certain property
accordingly, including: the parties received their respective vehicles and the
debt thereon; Father was awarded his 401(k); Mother would receive any net
proceeds from the sale of the home; and Father was responsible for (1) a loan to
One Main Financial; (2) a Fifth Third Bank credit card in his name; and a
Capital One credit card in his name. The trial court also awarded various items
of personal property to each party, in accordance with the parties’ agreement to
divide them, although the trial court did not place a value on those items
because none was provided. Finding that neither party had rebutted the
presumptive equal division, it thereafter ordered each party to pay half of the
following debts: (1) St. Vincent Hospital; (2) Northside Anesthesia; and (3) a
loan owed to Mother’s mother.
[34] In his motion to correct error, Father asked the trial court to correct error
concerning the division of debt, specifically asserting that the trial court erred by
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 21 of 25
failing to allocate any portion of the following debts to Mother: One Main
Financial loan, Fifth Third Bank credit card, and Capital One credit card.
Appellant’s App. at 53. His argument was that because the trial court had found
that neither party had rebutted an equal division, Mother should be responsible
for half the amount of each of those debts.
[35] Pursuant to Indiana Code section 31-15-7-5, an equal division of marital
property is presumed to be just and reasonable. However, this presumption
may be rebutted by a party who presents relevant evidence, including evidence
concerning the following factors, that an equal division would not be just and
reasonable:
(1) The contribution of each spouse to the acquisition of the
property, regardless of whether the contribution was income
producing.
(2) The extent to which the property was acquired by each
spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the
disposition of the property is to become effective, including the
desirability of awarding the family residence or the right to dwell
in the family residence for such periods as the court considers just
to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to
the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 22 of 25
(A) a final division of property; and
(B) a final determination of the property rights of the
parties.
Ind. Code § 31-15-7-5.
[36] Here, in its ruling on the motion to correct error, the trial court “admit[ted]
error” when it had determined that neither party had rebutted the presumption,
stating that, because Mother had contributed $20,000 to the acquisition of the
marital residence, an equal division would not be just and reasonable.
Appellant’s App. at 49. The trial court did not modify its prior division of debt,
however, thus leaving Father responsible for the three debts in question. Upon
review, we find no error in so doing.
[37] Our review of the record reveals that Father not only agreed to take those debts,
he proposed that they be allocated to him in the distribution, and that is exactly
what the trial court ordered. At trial, Father’s proposed distribution of the
marital estate was admitted into evidence. Ex. Vol. at 22 (Pet’r’s Ex. 1, Tab 6).5
In it, Father proposed that the One Main debt, the Fifth Third credit card debt,
and the Capital One credit card debt be assigned to him. Id.; see also Ex. Vol. at
7 (Father’s Request for Final Orders, asking trial court distribute marital estate
5
We note that Father’s proposed distribution provided that the net proceeds of the sale of the marital
residence be awarded to Mother, which he estimated would be $19,563.41. Ex. Vol. at 22 (Pet’r’s Ex. 1).
However, before the trial court issued its Decree, the house sold with a resulting net equity to Mother of
$1,724.30. Father filed a Notice to Court of Sale of Residence advising the trial court of the amount of the
net proceeds.
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 23 of 25
pursuant to Tab 6). While testifying, Father likewise stated that the One Main
debt, in the amount of $6,836.99, was in his name alone, and he “took it over
and put it in [his] name.” Tr. at 19. He likewise agreed to take over the debts
owing on the Fifth Third Bank and Capital One credit cards, which were in his
sole name. Id. at 19-20.
[38] Father’s argument appears to be that, while he did agree to take responsibility
for the three debts owed to One Main, Fifth Third Bank, and Capital One, he
“never agreed . . . that this was being done outside of consideration of the
distribution of marital debt.” Appellant’s Br. at 14. Rather, he asserts, the trial
court should have required Mother to pay half of those debts, given that the
trial court’s Decree found that the presumption of an equal division had not
been rebutted by either party. However, the trial court, upon Father’s motion
to correct error, admitted error and determined that Mother had rebutted the
presumption of equal division and that equal division was not just and proper.
[39] To the extent that Father’s claim is that the trial court erred when it determined
that an equal division was not just and reasonable in light of Mother’s
contribution to the acquisition of the marital home, we again find no error.
Indiana Code section 31-15-7-5(1) provides that evidence as to a party’s
contribution to the acquisition of property may rebut the presumption that an
equal division is just and reasonable. The evidence at trial was that Mother
contributed “a little under twenty grand down on that house.” Tr. at 65.
Father suggests that it was against the logic and effect of the circumstances
before it for the trial court to determine that an unequal distribution was proper,
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 24 of 25
but not thereafter change the debt distribution. Appellant’s Br. at 16. However,
the trial court’s decision to deviate from an equal division of the marital estate
was based upon a statutorily-permissible factor. As we have held, a party
challenging the trial court’s division of marital property must overcome a strong
presumption that the court considered and complied with the applicable statute.
Love, 10 N.E.3d at 1012-13. We will reverse the trial court’s distribution
decision only if no rational basis exists for the court’s decision. Id. Finding that
a rational basis exists for the trial court’s decision to order that Father was
responsible for the three debts at issue, either because Father agreed to it or
because unequal division of the estate was appropriate, we conclude that
reversal is not warranted.
[40] Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Opinion 11A01-1501-DR-8 | September 14, 2015 Page 25 of 25