MEMORANDUM DECISION FILED
Apr 14 2016, 9:30 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Laurie Baiden Bumb Thomas A. Massey
Bumb & Vowels, LLP Massey Law Offices, LLC
Evansville, Indiana Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Patrick Walters, April 14, 2016
Appellant-Respondent, Court of Appeals Case No.
74A04-1508-DR-1297
v. Appeal from the Spencer Circuit
Court
The Honorable Lucy Goffinet,
Jessica R. (Walters) Wittman, Special Judge
Appellee-Petitioner. Cause No. 74C01-1006-DR-371
Bradford, Judge.
Case Summary
[1] Appellant-Respondent David Walters (“Father”) and Appellee-Petitioner
Jessica Wittman (“Mother”) (collectively, “the Parents”) divorced in 2010, the
marriage having produced two minor children (“the Children”). The final
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dissolution decree provided that the Parents would share physical and legal
custody, that Mother would be responsible for 80% of the Children’s agreed
controlled expenses,1 and that Mother would pay $400.00 per month in child
support.
[2] In June of 2014, Father moved to modify Mother’s child support obligation on
the basis that Parents’ incomes had changed enough since the dissolution
decree to warrant an increase. The next month, Mother petitioned to modify
her child support obligation, proposing that she cover 100% of the Children’s
controlled expenses in exchange for relieving her of any child support
obligation and that she have the final decision-making authority in matters
arising out of the Parents’ joint legal custody of the Children. Following a
hearing, the trial court ordered that Mother be responsible for 100% of the
Children’s controlled expenses and that she pay no more child support to
Father. At the same time, the trial court denied Mother’s petition for final
decision-making authority. Father appeals, contending that (1) several of the
trial court’s findings of fact were erroneous and did not support the conclusions
made thereon, (2) the trial court erred in altering child support obligations
without completing a child support obligation worksheet (“Worksheet”), (3) the
trial court ordered a deviation from the presumptive child-support amount
1
“Controlled expenses” are defined in the commentary to the Indiana Child Support Guidelines: “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.” Child Supp. G. 6 cmty. (“Parenting Time Credit”).
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without sufficient justification. For purposes of this appeal, we restate Father’s
argument as whether the trial court erred in modifying Mother’s child support
modification. Mother cross-appeals, arguing that the trial court erred in
denying her request to have final decision-making authority for issues involving
the Children. We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] On October 27, 2010, the marriage of Mother and Father was dissolved by the
filing of an agreed decree (“the Decree”). At the time of the dissolution,
Mother was self-employed as a dentist with a solo practice in Santa Claus,
Indiana, with a gross income of $113,000.00, while Father was a high school
math teacher with a gross income of $30,000.00. Pursuant to the Decree,
Father received the marital residence, all equity therein, and a $20,000.00
property settlement from Mother. The parties agreed to share joint physical
and legal custody of the Children, who were five and three at the time. Mother
agreed to pay $400.00 per month in child support and 80% “of the children’s
agreed expenses for clothing, education, and agreed extracurricular activities.”
Appellant’s App. p. 14.
[4] On July 9, 2014, Father sent Mother an email that stated, inter alia, “I am
making clear that you may no longer assume my agreement to any clothing
purchases[.]” Appellant’s App. p. 45. Father’s objections stemmed from
Mother’s expenditures of approximately $1000.00 for children’s clothing over
the previous two months. Communication between the parties over the next
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several months became “sassy[.]” Tr. p. 46. Mother began sending Father
$400.00 checks at the beginning of each of month with a summary of Father’s
20% obligation instead of subtracting Father’s obligation for the previous month
from the check, as had been the parties’ practice to that point. From July to
December of 2014, Mother paid her $400.00 child support obligation to Father
and submitted a monthly summary of expenses. Father, however, as of
January of 2015, had not paid Mother his 20% share of controlled expenses
since June of 2014.
[5] Meanwhile, on June 11, 2014, Father petitioned the trial court to modify
Mother’s child support obligation on the basis that the parties’ incomes had
changed. On July 14, 2014, Mother petitioned the trial court to modify the
terms of the Decree so that she was responsible for 100% of the Children’s
controlled expenses, no longer had any child support obligation, and had final
decision-making authority in the event of a disagreement with Father over joint
legal issues.
[6] The trial court held a hearing on the parties’ petitions on October 30, 2014, and
January 23, 2015. Father testified that he was still employed as a high school
teacher, with a yearly salary of $35,757.00. Mother submitted two Worksheets,
one listing her 2013 income as $153,167.00 and the other listing an estimated
income of $150,446.00 for 2014. The first Worksheet submitted by Mother
indicated a presumptive weekly child support obligation for her of $162.61 and
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the second a presumptive weekly obligation of $177.42.2 In a mortgage loan
application submitted in November of 2013, Mother indicated monthly gross
receipts from her dental practice of $14,605.00, or over $175,000.00 annually.
Mother acknowledged that she was 100% owner of her dental practice and had
withdrawn money for personal use from time to time, including $15,000.00 for
a down payment on a house and $16,000.00 for other purposes.
[7] For his part, Father submitted three Worksheets, all listing Mother’s annual
income as $175,000.00, one of which, Exhibit E, translated to a presumptive
weekly child support obligation of $199.40 for Mother. Exhibit E was prepared
based on the assumptions that Mother would be responsible for all controlled
expenses and that Father would receive a parenting time credit. Father’s
Exhibits F and G indicated presumptive weekly child support obligations of
$274.40 and $129.97, respectively. Mother argued she should become
responsible for 100% of the Children’s controlled expenses but that her child
support obligation should also be eliminated. Mother testified that she believed
that if her proposal were accepted, Father would have no cause for worry or
concern about Mother’s purchases for the Children.
2
Mother’s two submitted Worksheets included a $70.00 expense for child care which (1) increased the total
child support obligation of the parties, (2) she listed as a credit, and (3) she acknowledged at the hearing was
no longer applicable. Mother did not recalculate her final totals to reflect this, but a recalculation would have
resulted in a somewhat increased child support obligation for Mother.
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[8] On May 26, 2015, the trial court issued its order on the parties’ petitions, which
provides as follows:
COMES NOW THE COURT, having heard all pending issues
in open court on October 30, 2014 and January 23, 2015, having
reviewed evidence, motions and memorandum submitted by
both parties, the COURT NOW FINDS AS FOLLOWS:
* * * *
7. The Mother was responsible for eighty percent (80%) and
the Father twenty percent (20%) of the children’s agreed
expenses for clothing, education, and extracurricular
activities that the parties agreed too [sic].
8. The Mother paid the Father Four Hundred Dollars
($400.00) per month in child support. The amount was an
agreed deviation.
9. Each month from the date of the final divorce decree until
the Summer of 2014 the Mother would write the Father a
check for child support minus the twenty percent (20%)
obligation he would owe on the children’s agreed
expenses. The Mother would provide a summary of the
expenses with the check.
10. The Father accepted and cashed the checks from October
2010 until the summer of 2014.
11. During this time Father never expressed that he thought
the purchases the Mother made for the children were
unnecessary or excessive.
12. Father testified that up until the summer of 2014 the
procedure for payment of support after the deduction was
made without complaint.
13. In July of 2014, after filing a Petition to Modify Child
Support, Father stated to Mother that he would no longer
agree to her purchasing clothing for the children.
14. Father testified that Mother’s spending was excessive.
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15. Mother testified that her spending was reasonable and in
no way deviated from how she purchased for the children
in the past.
16. From July 2014 until December 2014 Mother paid Father
Four Hundred Dollars ($400.00) in child support. She also
provided a summary of expenses for the children each
month.
17. Father testified that he has not reimbursed Mother twenty
percent (20%) of the expenses between July 2014 and
December 2014.
18. Mother admits that there have been months when her
child support payment was late.
19. There has been a significant breakdown in communication
between the parties since July of 2014.
20. Father testified that since the date of the divorce decree he
has incurred over Thirty Thousand Dollars ($30,000.00) in
credit card debt.
21. Father testified that he intends to purchase a five (5)
bedroom house from his parents.
22. Mother testified that she has purchased a four (4) bedroom
house.
23. Both parties continue to reside in Santa Claus, Indiana in
very close proximity to each other.
24. Father testified that he wants to live in a home comparable
to Mother’s.
25. Father testified that his salary has “sky rocketed” since the
date of the final divorce decree.[3]
3
During cross-examination, when Mother’s counsel asked Father if his income had increased since the
divorce, Father replied, “Like a sky rocket.” Tr. p. 81. In context, it is apparent that Father’s description of
the increase in his salary, which rose from $30,000.00 to approximately $36,000.00 in four years, was almost
certainly sarcastic.
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26. Mother testified that her salary has increased since the date
of the final divorce decree.
27. The Father has been very unwilling to communicate with
Mother in any matter that financially concerns the
children.
28. The Mother wants to be one hundred percent (100%)
responsible for all of the children’s clothing,
extracurricular, educational, child care, health insurance,
and any uninsured medical dental, optometric,
orthodontic and prescription expenses.
29. The Mother is requesting no child support be due and
owing since she will be paying one hundred percent
(100%) of the children’s expenses.
30. The Father’s only expense for the children would be for
their food and entertainment while they were with him.
31. The Father offered no testimony as to why this
arrangement would not be in the best interest of the
children.
32. The Father testified that he wants child support to be
increased and asked the Court to consider what was fair.
33. The Father’s testimony was very conflicting as to what a
fair increased child support amount would be.
34. The court finds this case unique in the circumstances in
that the parties have never argued over unnecessary
expenses under their negative child support calculation
and their children have enjoyed a lifestyle similar to that as
which they would have had if the parties had not divorced.
COURT NOW CONCLUDES AS FOLLOWS:
1. The parties currently live in the same neighborhood.
2. The parties exercise shared physical custody of the
children.
3. The parties no longer communicate in a way that is in the
best interest of the children regarding finances.
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4. Given the unique circumstances of this case, the Mother
providing for one hundred percent (100%) of the children’s
expenses would be in the best interest of the children and
would most likely put the children in a situation most
similar to that as if the parents had not divorced.
5. The Father’s increased income would more than provide
for the needs of the children, such as entertainment and
food, while they are in his care.
6. Each party has sufficient means to pay their own attorney
fees.
7. Father has not met his burden of proof in showing a need
for increased child support due and owing to him in this
case due to the unique circumstances in this matter and
Mother’s willingness to pay one hundred percent (100%)
of the children’s expenses.
8. Neither party is found in direct contempt of Court.
9. A deviation in the child support guidelines is in the best
interest and welfare of the children in that [M]other’s
proposal would avoid conflict between the parties and
allow the children to maintain a lifestyle in which they are
accustomed and which they would have enjoyed had the
parties not divorced.
COURT NOW ORDERS AS FOLLOWS:
1. Each party shall be responsible for their own attorney fees.
2. The Mother’s shall be responsible to pay for one hundred
percent (100%) of the children’s expenses regarding
education, clothing, extracurricular activities, child care,
health insurance and all uninsured medical expenses
including medical, dental, optometric, orthodontic, and
prescription expenses.
3. Mother is no longer required to pay Father monthly child
support.
4. Neither party is in contempt of Court.
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5. Father’s Petition for Modification of Child Support is
Denied.
6. Mother’s Petition for Joint Legal Custody but final
decision Making is Denied.
7. The Court declines to Order monetary awards at this time.
8. All prior Orders of the Court shall remain in effect.
SO ORDERED THIS 26TH DAY OF MAY, 2015
Appellant’s Br. pp. 36-39.
Discussion and Decision
I. Direct Appeal Issue—Child Support
[9] On review, “[a] trial court’s calculation of child support is
presumptively valid.” Young v. Young, 891 N.E.2d 1045, 1047
(Ind. 2008) (citing Kondamuri v. Kondamuri, 852 N.E.2d 939, 949
(Ind. Ct. App. 2006)). “[R]eversal of a trial court’s child support
order deviating from the appropriate guideline amount is merited
only where the trial court’s determination is clearly against the
logic and effect of the facts and circumstances before the trial
court.” Kinsey v. Kinsey, 640 N.E.2d 42, 43 (Ind. 1994) (citing
Humphrey v. Woods, 583 N.E.2d 133, 134 (Ind. 1991)). Upon the
review of a modification order, “only evidence and reasonable
inferences favorable to the judgment are considered.” Kinsey,
640 N.E.2d at 44 (string citation omitted). The order will only be
set aside if clearly erroneous. Id.
Bogner v. Bogner, 29 N.E.3d 733, 738 (Ind. 2015).
[10] Father contends that the trial court deviated from what the child support order
would be pursuant to the Indiana Child Support Guidelines (“the Guidelines”)
without sufficient justification. Mother argues that the deviation is justified.
The trial court seemed to base its disposition on three conclusions: (1) its order
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would decrease conflict between the parties, (2) it would allow the Children to
have a lifestyle similar to the one they would have enjoyed had the parties not
divorced, and (3) Father’s increased income would allow him to easily provide
for the Children’s food and entertainment while staying with him.
[11] As mentioned, both parties acknowledge that the trial court’s order represents a
deviation from the Guidelines. The question, then, is whether the Guidelines’
rebuttable presumption regarding child support has been sufficiently rebutted.
Although application of the Guidelines yields a figure that
becomes a rebuttable presumption, there is room for flexibility.
Guidelines are not immutable, black letter law. A strict and
totally inflexible application of the Guidelines to all cases can
easily lead to harsh and unreasonable results. If a judge believes
that in a particular case application of the Guideline amount
would be unreasonable, unjust, or inappropriate, a finding must
be made that sets forth the reason for deviating from the
Guideline amount. The finding need not be as formal as
Findings of Fact and Conclusions of Law; the finding need only
articulate the judge’s reasoning.
Child Supp. G. 1 cmty.
A. Controlled Expenses
[12] As an initial matter, we note that neither Mother nor Father challenges the trial
court’s assignment of 100% of controlled expenses to Mother. In any event, we
conclude that this assignment was justified by the trial court’s findings and
conclusions that such an assignment would ease conflict between the parties.
To the extent that the parties are in conflict, that conflict appears to be based
almost entirely on Father’s objections to some of Mother’s spending on
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controlled expenses. Assigning 100% of the controlled expenses to Mother
removes this source of conflict and strikes us as entirely reasonable under the
circumstances.
B. Parenting Time Credit
[13] Father contends that the trial court erred in failing to award him the parenting
time credit. Despite Father specifically arguing that he should be awarded the
parenting time credit if Mother were assigned all of the Children’s controlled
expenses, the trial court did not award the credit to Father, nor did it
specifically explain why it did not do so. Guideline 6 provides, in its entirety,
that “[a] credit should be awarded for the number of overnights each year that
the child(ren) spend with the noncustodial parent.” Commentary provides
considerable guidance as to how the somewhat bare-bones Guideline 6 should
be applied in situations, such as this, where parenting time is equally shared:
Child Support When Parenting Time is Equally Shared. A
frequent source of confusion in determining child support arises
in cases where parents equally share the parenting time with the
children. Parenting time is considered equally shared when it is
181 to 183 overnights per year. To determine child support in
these cases, either the mother or father must be designated as the
parent who will pay the controlled expenses. Then, the other
parent is given the parenting time credit. The controlled
expenses remain the sole obligation of the parent for whom the
parenting time credit is not calculated.
When both parents equally share parenting time, the court must
determine which parent will pay the controlled expenses. If, for
example, father is the parent paying controlled expenses, the
parenting time credit will be awarded to the mother.
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* * * *
Once the court assigns responsibility for these controlled
expenses, the court should award the other parent the parenting
time credit. When the assignment of the controlled expenses
occurs, calculation of the child support in shared custody
situations is fairly basic, and is completed by application of the
remainder of these Guidelines.
[14] While we recognize that the Guidelines are not black letter law, the
commentary to Guideline 6 is particularly emphatic that when one parent is
made responsible for all controlled expenses, the other is to be given the
parenting time credit. This was not done here, and we conclude that the trial
court’s apparent reasons for failing to do so are insufficient.
[15] The trial court seems to have eliminated Mother’s child support obligation, at
least in part, based on its conclusion that Father’s income had increased
significantly since the dissolution. The record and Guidelines, however, do not
support this basis. While Father’s income did increase from 2010 to 2014, the
increase can only be described as modest and, in any event, fell far short of
keeping pace with the increase in Mother’s income over the same period.
Father’s yearly income increased from $30,000.00 in 2010 to $35,757.00 in
2014, an increase of 19%, or less than 5% a year. Over the same period,
Mother’s yearly income increased from $113,000.00 to somewhere in the
neighborhood of $150,000.00 to $175,000.00,4 an increase of 33% to 55%, or
approximately 8% to 14% a year. Over the four years at issue, Father’s income
4
The trial court made no finding regarding Mother’s yearly salary.
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as a percentage of weekly adjusted income for both parties decreased from 21%
to as little at 17%. In any event, even if Father’s income had increased
substantially since the dissolution, the increase would be reflected in an increase
of his basic child support obligation and a corresponding decrease in his
parenting time credit. The Guidelines do not indicate that complete
elimination of the parenting time credit is warranted in this case.
[16] The trial court seemingly also eliminated Mother’s child support obligation in
order to compensate her for assumption of 100% of the Children’s controlled
expenses. This basis is also not supported by the record or the Guidelines. The
record indicates that Father’s 20% share of controlled expenses averaged
$122.05 per month from January of 2011 to June of 2014, far less than the
$400.00 per month Mother was paying in child support. In other words,
eliminating Mother’s child support obligation entirely as compensation for her
assumption of Father’s 20% of controlled costs results in a windfall for Mother.
[17] The trial court’s disposition was seemingly based only on consideration of the
controlled expenses while failing to properly take into account the two other
categories of parenting expenses—transferred and duplicated—that the
parenting time credit is specifically designed to account for.
Transferred Expenses. This type of expense is incurred only
when the child(ren) reside(s) with a parent and these expenses are
“transferred” with the child(ren) as they move from one parent’s
residence to the other. Examples of this type of expense are food
and the major portion of spending for transportation. When
spending is transferred from one parent to the other parent, the
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other parent should be given a credit against that parent's child
support obligation since this type of expense is included in the
support calculation schedules. When parents equally share in the
parenting, an assumption is made that 35% of the Basic Child
Support Obligation reflects “transferred” expenses. The amount
of expenses transferred from one parent to the other will depend
upon the number of overnights the child(ren) spend(s) with each
parent.
Duplicated Fixed Expenses. This type of expense is incurred
when two households are maintained for the child(ren). An
example of this type of expense is shelter costs which are not
transferred when the child(ren) move(s) from one parent's
residence to the other but remain fixed in each parent's
household and represent duplicated expenditures. The fixed
expense of the parent who has primary physical custody is
included in the Guideline support schedules. However, the fixed
expense of the other parent is not included in the support
schedules but represents an increase in the total cost of raising the
child(ren) attributed to the parenting time plan. Both parents
should share in these additional costs.
When parents equally share in the parenting, an assumption is
made that 50% of the Basic Child Support Obligation will be
“duplicated.”
Child Supp. G. 6 cmty. Put another way, while the Guidelines contemplate
that transferred and duplicated expenses will be shared by parents (i.e., 85% of
each parent’s basic child support obligation will be transferred and duplicated
expenses), the Guidelines do not contemplate that those expenses will be shared
equally. Because we conclude that neither the record in this case nor the
Guidelines supports the denial of the parenting time credit to Father, we reverse
that portion of the trial court’s order and remand with instructions to
recalculate the parties’ child support obligations.
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C. Child Support Calculation
[18] As previously mentioned, both Mother and Father submitted multiple
Worksheets, all of which indicated an obligation by Mother, with Mother’s
Worksheets indicating a weekly obligation of either $162.61 or $177.42 and
Father’s indicating a weekly obligation of either $199.40, $274.40, or $129.97.
Father primarily advocated adoption of the Worksheet that produced a weekly
obligation of $199.40, as that was based upon awarding him the parenting time
credit, which we have already concluded should have been done.
[19] The differences between the obligations generated by Father’s Exhibit E and
Mother’s two submissions reflects the use of different values for Father’s and
Mother’s weekly gross incomes and what amount Mother pays for the
Children’s health insurance. As for Father’s weekly gross income, the figure of
$35,757.00 for Father’s yearly income is not disputed and should be used in any
child support calculations.5 Mother’s weekly gross income is disputed,
however. Mother presented evidence that her estimated yearly income was
approximately $150,000.00 for 2014 while Father presented evidence that
Mother submitted a mortgage loan application in late 2013 listing the yearly
receipts from her dental practice at $175,000.00. On remand, it will be
necessary for the trial court to make a finding regarding Mother’s weekly gross
income. Finally, Mother lists the weekly amount she pays for the Children’s
5
Mother admitted at the hearing that the $36,000.00 figure used on her worksheets was an estimate. (Tr.
138).
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health insurance premiums as $64.62, while Father lists it as $65.00. It will be
necessary to determine an exact amount for purposes of recalculating the
parties’ child support obligations.
[20] In summary, because we have concluded that the trial court erred in denying
Father the parenting time credit, we reverse the trial court’s order eliminating
Mother’s child support obligation and remand for recalculation. If, after
recalculation, the trial court determines that imposing the presumptive child
support “would be unreasonable, unjust, or inappropriate, a finding must be
made that sets forth the reason for deviating from the Guideline amount.”
Child Supp. G. 1 cmty. We recognize that the Guidelines afford the trial court
considerable flexibility for deviation from the presumptive child support
obligation, provided that the trial court’s reasoning is articulated. See id.
II. Cross-Appeal Issue—Final
Decision Making Authority
[21] Mother contends that the trial court erred in denying her request for final
decision making authority over “joint legal issues” having to do with the
Children. Appellant’s App. p. 26. Mother argues that Father’s alleged
unreasonableness concerning the dispute over her clothing purchases for the
Children necessitates giving her the final say in all disputes arising from the
parties’ joint legal custody. We cannot agree. The record indicates that the
dispute between Mother and Father was limited to her spending on clothing, a
relatively minor dispute that should be resolved by assigning 100% of the
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controlled expenses to Mother. The trial court did not err in denying Mother’s
request for final decision making authority over all joint custody issues.
Conclusion
[22] We conclude that the trial court correctly assigned 100% of the controlled
expenses to Mother. We conclude, however, that the trial court erred in
granting Mother’s motion to eliminate her child support obligation in return.
Specifically, the trial court erred in denying Father the parenting time credit.
Consequently, we remand with instructions to recalculate the parties’ child
support obligations consistent with this memorandum decision. Finally, we
conclude that the trial court did not err in denying Mother’s request for final
decision making authority over all joint custody issues.
[23] We affirm the judgment of the trial court in part, reverse in part, and remand
with instructions.
[24] Bailey, J., and Altice, J., concur.
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