MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 16 2018, 8:01 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 ATTORNEY FOR APPELLEE
Patrick A. Duff Erin L. Berger
Duff Law, LLC Evansville, Indiana
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carl T. Winkley, November 16, 2018
Appellant-Petitioner, Court of Appeals Case No.
82A04-1711-DR-2786
v. Appeal from the Vanderburgh
Superior Court
Patricia Z. Winkley, The Honorable Leslie Shively,
Appellee-Respondent Judge
Trial Court Cause No.
82D01-1606-DR-724
May, Judge.
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[1] Carl T. Winkley (“Father”) appeals the trial court’s order dissolving his
marriage to Patricia Z. Winkley (“Mother”). He presents multiple issues for
our review, which we restate as:
1. Whether the trial court abused its discretion when it
distributed the marital property amongst the parties;
2. Whether the trial court abused its discretion when it awarded
Mother physical and legal custody of J.W., P.W., R.W., and
D.W. (collectively, “Minor Children”); and
3. Whether the trial court abused its discretion when it ordered
Father’s parenting time with J.W. and P.W. to be supervised.
We reverse in part, affirm in part, and remand for proceedings consistent with
this opinion.
Facts and Procedural History 1
[2] Mother and Father married on March 17, 1995. On June 3, 2016, Father filed
a petition for dissolution of his marriage to Mother. There were seven children
of the marriage, four of whom were Minor Children. On February 24, 2017,
the trial court issued a Provisional Order addressing custody, parenting time,
and financial issues. In the Provisional Order, the trial court awarded Father
1
Father provides a page from mycase.in.gov in his appendix, indicating it is the chronological case summary,
despite the fact the mycase page states it is not the official record of the court. While there is no appellate
rule against citing mycase, we prefer the Official Chronological Case Summary, which is the official record of
the court and may be obtained from the trial court.
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primary physical custody of Minor Children, and Mother was permitted to
exercise six hours of parenting time with Minor Children per week.
[3] On March 23, 2017, the trial court set a final hearing on the dissolution for July
31, 2017. On April 11, 2017, Mother filed a motion for appointment of a
Guardian ad Litem (“GAL”). On May 5, 2017, the trial court granted
Mother’s motion and ordered the appointment of a GAL at Father’s expense.
The GAL filed her report on July 28, 2017.
[4] The trial court held the first final dissolution hearing on July 31, 2017. The trial
court held four subsequent “final” hearings on August 3, 2017; September 8,
2017; September 22, 2017; and September 26, 2017. During the September 22,
2017, hearing, the trial court entered an order awarding Mother immediate
physical custody of all Minor Children. On October 26, 2017, the trial court
entered its order dissolving the marriage of Mother and Father.
Discussion and Decision
Distribution of Marital Property
[5] Father argues the trial court abused its discretion when it divided the marital
property. We note the record does not reflect that either party asked the trial
court to enter findings pursuant to Indiana Trial Rule 52. Nevertheless, the trial
court entered a number of findings sua sponte as authorized by the Rule. When
a general judgment is entered with findings, we will affirm it if it can be
sustained on any legal theory supported by the evidence. Yanoff v. Muncy, 688
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N.E.2d 1259, 1262 (Ind. 1997). Findings will be set aside only if they are
clearly erroneous. Id. A finding is clearly erroneous only if the record contains
no facts to support it either directly or by inference, and a judgment is clearly
erroneous if it applies the wrong legal standard to properly found facts. Id.
Superfluous findings, even if erroneous, cannot provide a basis for reversible
error. Mullin v. Mullin, 634 N.E.2d 1340, 1341-42 (Ind. Ct. App. 1994).
[6] Indiana subscribes to a “one-pot” theory of marital property. Morey v. Morey, 49
N.E.3d 1065, 1069 (Ind. Ct. App. 2016) (citing Ind. Code § 31-15-7-4). Thus,
when parties petition for dissolution of marriage,
the court shall divide the property of the parties, whether:
(1) owned by either spouse before the marriage;
(2) acquired by either spouse in his or her own right:
(A) after the marriage; and
(B) before final separation of the parties; or
(3) acquired by their joint efforts.
Ind. Code § 31-15-7-4(a); see also Ind. Code § 31-9-2-98 (defining “property” for
the purposes of dissolution as “all the assets of either party or both parties”).
This “one-pot” theory ensures that all assets are subject to the trial court’s
power to divide and award. Morey, 49 N.E.3d at 1069.
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[7] Then, when the court divides the property, it
shall presume that an equal division of the marital property
between the parties is 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:
(A) a final division of property; and
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(B) a final determination of the property rights of the
parties.
Ind. Code § 31-15-7-5. If the court determines that one party rebutted the
presumption of equal division, “then the court must state its reasoning in its
findings and judgment.” Morey, 49 N.E.3d at 1072.
[8] The trial court has discretion to divide marital property, and we reverse only if
the court abused its broad discretion. Love v. Love, 10 N.E.3d 1005, 1012 (Ind.
Ct. App. 2014). An abuse of discretion occurs if the trial court: (1) entered a
ruling clearly against the logic and effect of the facts and circumstances before
the court, (2) misinterpreted the law, or (3) disregarded evidence of factors listed
in the controlling statute. Id. When we review a claim that the trial court
improperly divided marital property, we consider only the evidence most
favorable to the trial court’s disposition. Morey, 49 N.E.3d at 1069. 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.
[9] Division of marital property is highly fact sensitive, and we review a trial
court’s division “as a whole, not item by item.” Love, 10 N.E.3d at 1012. We
will not weigh evidence or consider evidence that conflicts with the trial court’s
judgment. Id. The party challenging the division of marital property “must
overcome a strong presumption that the court considered and complied with
the applicable statute.” Id. at 1012-13 (quoting Wanner v. Hutchcroft, 888 N.E.2d
260, 263 (Ind. Ct. App. 2008)). In essence, we may not reverse a property
distribution unless there is no rational basis for it. Id. at 1013.
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[10] Here, the trial court divided the marital property as follows:
6.01. Scarp, Inc. The corporation has no independent value as a
going concern. The assets used by the corporation for business
operations were also used by the parties personally. These assets
shall be allocated between the parties as indicated in this section.
[Father] shall be declared the sole owner of his 70% interest in
Scarp, Inc.
6.02 Unimproved Real Property: The parties are the owners of
unimproved real property located in the State of Missouri. The
property shall be listed for sale with a licensed broker at a fair
market value to be determined by said broker within 30 days of
this Order. The proceeds from the sale shall be equally divided
between the parties.
6.03 Vehicles. [Father] shall be the sole owner of the 2016
Dodge Ram motor vehicle. [Mother] shall be the sole owner of
the 2011 Mercedes motor vehicle. The [Father] shall be
responsible for the debt on each vehicle and shall hold the
[Mother] harmless therefrom.
6.04 Bank Accounts. The parties are the owners of various joint
bank accounts. The parties agree that all bank accounts shall be
divided equally between the parties on the day this Decree is
executed by this Court.
6.05 [Mother’s] Personal Property. [Mother] shall have and
retain exclusive legal title, free and clear from any claim of
Husband, to her clothing, jewelry, household goods, furnishings,
and other personal property currently in her possession.
Additionally, [Mother] shall be the owner of the following
personal property, which shall immediately be surrendered by the
[Father]:
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Laptop Computer
Decorations from Pier 1
60” Television set
Ninja blender
Dining room furniture located in marital residence
Bedroom furniture located in marital residence
Decorations in the kitchen of marital residence
Clothing belonging to [P.W.]
Clothing belonging to [J.W.]
Smaller desk
All items belonging to the minor children
6.06 [Father’s] Personal Property. [Father] shall have and retain
exclusive legal title, free and clear of any claim of [Mother], to
his clothing, jewelry, household goods, furnishings, and other
personal property currently in his possession, except as expressly
provided elsewhere in this Agreement.
6.07 Tax Refund. The parties shall equally divide the tax refund
for 2015. [Father] shall pay to [Mother] a sum equal to fifty
percent (50%) of the tax refund amount within 30 days of this
Decree. The parties shall file a joint tax return for tax year 2016.
[Father] shall be responsible for any outstanding tax liability for
tax year 2016, and any and all prior years. The parties shall file
separate tax returns for tax year 2017 and each year thereafter.
(Appellant’s App. at 27-8) (formatting in original).
[11] The trial court divided the parties’ marital debts and obligations as follows:
7.01 Debts and Obligations of [Father]. Except as otherwise
expressly provided in this Agreement, [Father] shall be solely
responsible for the debts and obligations in his individual name,
and, in addition, all debts and obligations incurred by him since
the date of final separation. [Father] agrees to defend,
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indemnify, and hold harmless [Mother] from and against any
and all liability, expense, attorney’s fees, loss or damages which
may be incurred or sustained by [Mother], directly or indirectly,
arising out of, founded upon, or resulting from the failure of
[Father] to perform, satisfy, or pay debts or obligations imposed
by this Agreement.
7.02 Debts and Obligations of [Mother]. Except as otherwise
expressly provided in this Agreement, [Mother] shall be solely
responsible for the debts and obligations in her individual name
incurred by her since the date of final separation. [Mother]
agrees to defend, indemnify, and hold harmless [Father] from
and against any and all liability, expense, attorney’s fees, loss or
damage which may be incurred or sustained by [Father], directly
or indirectly, arising out of, founded upon, or resulting from the
failure of [Mother] to perform, satisfy, or pay debts or obligations
imposed by this Agreement.
7.03 Assumption of Debts. Each of the parties shall assume full
responsibility for the debts listed below, to pay the debt timely as
it becomes due and payable, and to indemnify and hold the other
party harmless from any liability arising from the same:
Assuming Creditor Approximate
Party Balance Due
[Father] Any remaining Unknown
balance on
lease of marital
residence
[Father] Mercedes-benz $22,000.00
indebtedness
[Father] Ram truck $40,000.00
indebtedness
[Father] Sybill $11,000.00
Heydrich
[Father] Fielding $4,000.00
Manor
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[Father] FNBC - prior $66,000.00
mortgage
[Father] HSBC credit $12,000.00
card
[Father] FNBC business $6,000.00
loan
[Father] Orthodontist $3,000.00
[Father] Damages to $1,300.00
Mercedes-benz
[Father] FNBC Credit $1,542.38
card debt
7.04 Guardian-ad-Litem Fees. As previously ordered, [Father]
shall be responsible for the Guardian-ad-Litem fee owed to Amy
Brandsasse, with an outstanding balance as of October 12, 2017
of $3,789.05. Said fee is hereby reduced to a Judgment against
[Father] and in favor of Amy Brandsasse and Professional
Guardian-ad-Litem Services, LLC. [Father] shall indemnify and
hold [Mother] harmless from any liability arising out of the
failure of [Father] to perform, satisfy, or pay said debt. The
Court affirms its prior Order that [Father] pay the sum of Five
Hundred Dollars ($500.00) per month toward the outstanding
fees owed to the Guardian-ad-Litem.
(Id. at 28-9) (errors in original). Father contends the trial court’s division of
marital property resulted in an unequal distribution of property and the trial
court erred by not providing its reasoning for this unequal split of marital
property. We agree.
[12] Considering the property division as a whole it would seem, based on the trial
court’s findings, that Father and Mother split equally the personal property,
bank accounts, tax refunds, unimproved real property, and individual personal
debt. However, the trial court assigned all of the marital debt, a total of at least
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$166,842.38, to Father. In addition, the trial court left unknown the
approximate balance due on the lease of the marital residence and did not
attach a monetary value to Father’s company, Scarp, Inc. Moreover, the trial
court awarded the Mercedes to Mother, but assigned the debt for that vehicle to
Father. Therefore, Father has rebutted the presumption that the marital pot
was divided equally, and thus the trial court was required to give a reason for
that unequal split. See Morey, 49 N.E.3d at 1072 (trial court must state reason
for deviation from equal division of marital pot). We reverse and remand for
redistribution of marital assets or for findings by the trial court that justify an
unequal distribution of assets.
Custody and Parenting Time
[13] Custody determinations fall squarely within the discretion of the trial court and
will not be disturbed except for abuse of discretion. Klotz v. Klotz, 747 N.E.2d
1187, 1189 (Ind. 2001). We will not reverse unless the decision is against the
logic and effect of the facts and circumstances before us or the reasonable
inferences drawn therefrom. Id. When, as here, the trial court enters findings
sua sponte, the specific findings control only as to the issue they cover. Julie C. v.
Andrew C., 924 N.E.2d 1249, 1255 (Ind. Ct. App. 2010). A general judgment
standard applies to those issues upon which the trial court did not make
findings. Id. The specific findings will not be set aside unless they are clearly
erroneous, and we will affirm the general judgment on any legal theory
supported by the evidence. Id. A finding is clearly erroneous when “there are
no facts or inferences drawn therefrom that support it.” Id. at 1256. In
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reviewing the trial court’s findings we cannot reweigh the evidence or judge the
credibility of witnesses. Id. We consider only the evidence that supports the
findings and the reasonable inferences to be drawn therefrom. Id. The trial
court is not required to make specific findings regarding each of these factors,
unless requested to do so by one of the parties. Hegerfeld v. Hegerfeld, 555
N.E.2d 853, 856 (Ind. Ct. App. 1990).
[14] Here, the trial court found, regarding custody and parenting time of Minor
Children:
8.01 Legal Custody. [Mother] shall have sole legal custody of the
children.
8.02 Physical Custody. [Mother] shall have sole physical custody
of the children.
8.03 Parenting Time. The Court adopts the Interim Order on
Custody of 9-22-17 and orders as follows: The Court grants
physical custody of the minor children in this matter to Mother[.]
The Father shall have parenting time with the older two children
in this matter, R.W., and D.W., pursuant to the Indiana
Parenting Time Guidelines. The Court orders Father to have
parenting time with the younger two (2) children in this matter,
P.W. and J.W., to be supervised by the Parenting Time Center.
(Appellant’s App. at 29-30.) Father argues the trial court abused its discretion
when it granted legal and physical custody to Mother, and when it ordered
Father’s parenting time supervised with P.W. and J.W. We address each issue
in turn.
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Legal Custody
[15] The trial court’s decision regarding legal custody of minor children is guided by
Indiana Code section 31-17-2-15, which states:
In determining whether an award of joint legal custody under
section 13 of this chapter would be in the best interest of the
child, the court shall consider it a matter of primary, but not
determinative, importance that the persons awarded joint
custody have agreed to an award of joint legal custody. The court
shall also consider:
(1) the fitness and suitability of each of the persons awarded joint
custody;
(2) whether the persons awarded joint custody are willing and
able to communicate and cooperate in advancing the child’s
welfare;
(3) the wishes of the child, with more consideration given to the
child’s wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial
relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the
home of each of the persons awarded joint custody.
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[16] Father argues the trial court abused its discretion when it awarded Mother sole
legal custody of Minor Children because he “expressed his desire to work with
[Mother] and to ensure that [Minor Children] got the care they needed.” (Br. of
Appellant at 23.) Father also points to general evidence that he has made “an
overt effort . . . to be involved with [Minor Children].” (Id.) Father’s
arguments are requests for us to reweigh the evidence and judge the credibility
of witnesses, which we cannot do. See Julie C., 924 N.E.2d at 1256 (appellate
court will not reweigh evidence or judge the credibility of witnesses). The trial
court did not abuse its discretion. See Nunn v. Nunn, 791 N.E.2d 779, 787 (Ind.
Ct. App. 2003) (it is within the trial court’s discretion to grant sole legal custody
to one parent despite both parents’ involvement in child rearing and strong
bonds with their children).
[17] Furthermore, there exists sufficient evidence to support the trial court’s award
of sole legal custody to Mother. The GAL stated:
This families [sic] in crisis, it’s been in crisis for a long time and
with how the custody exchange transferred [sic] was handled and
I saw how chaotic it was and it was their normal. It just really
registered with me that um, it’s, things are bad in this case. . . . I
think there is no ability to co-parent at this point. There’s no
ability to co-parent. So, I think it’s obvious that sole legal
should, should go to [Mother]. Just because there is no ability to
co-parent between the two of these people.
(Tr. Vol. III at 138-9.) The record and parties’ appellate briefs are littered with
language indicating extreme animosity between the parties - Father’s recitation
of the facts focuses on alleged incidents involving domestic violence at the
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hands of Mother, and Mother’s brief details allegations of child abuse. The trial
court did not abuse its discretion when it awarded sole legal custody of Minor
Children to Mother. See Carmichael v. Siegel, 754 N.E.2d 619, 636 (Ind. Ct.
App. 2001) (“Even two parents who are exceptional on an individual basis
when it comes to raising their children should not be granted, or allowed to
maintain, joint legal custody over the children if it has been demonstrated . . .
that those parents cannot work and communicate together to raise the
children.”).
Physical Custody
[18] In determining child custody, the trial court is to consider eight statutory
factors:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the
child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the
child’s best interests.
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(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either
parent.
(8) Evidence that the child has been cared for by a de facto
custodian, and if the evidence is sufficient, the court shall
consider the factors described in section 8.5(b) of this chapter.
Ind. Code § 31-17-2-8.
[19] Father argues the trial court abused its discretion when it awarded sole physical
custody of Minor Children to Mother because it did “not provide any
additional explanation for its ruling.” (Br. of Appellant at 22.) Father did not
request such findings, and the trial court was not required to enter specific
findings regarding the reasons it awarded Mother sole physical custody of
Minor Children. See Hegerfeld, 555 N.E.2d at 856 (absent a request from one of
the parties, the trial court is not required to make specific findings regarding the
factors considered when making a child custody determination).
[20] Father also seems to argue the evidence before the trial court, when considered
in light of the factors in Indiana Code section 31-17-2-8, does not support its
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award of sole physical custody of Minor Children to Mother. However,
Father’s alternate versions of certain events are invitations for us to reweigh the
evidence and judge the credibility of witnesses, which we cannot do. See Julie
C., 924 N.E.2d at 1256 (appellate court will not reweigh evidence or judge the
credibility of witnesses).
Parenting Time
[21] A trial court has discretion to determine issues regarding parenting time, and
we will reverse only upon a showing of abuse of that discretion. Lasater v.
Lasater, 809 N.E.2d 380, 400 (Ind. Ct. App. 2004). “No abuse of discretion
occurs if there is a rational basis in the record supporting the trial court’s
determination.” Id. On appeal, we cannot reweigh evidence or judge the
credibility of witnesses. Id. “In all visitation controversies, courts are required
to give foremost consideration to the best interests of the child.” Id.
[22] Indiana Code section 31-17-4-1 states, in relevant part: “A parent not granted
custody of the child is entitled to reasonable parenting time rights unless the
court finds, after a hearing, that parenting time by the noncustodial parent
might endanger the child’s physical health or significantly impair the child’s
emotional development.” Although that section uses the term ‘might,’ “this
court interprets the statute to mean that a court may not restrict visitation unless
that visitation would endanger the child’s physical health or well-being or
significantly impair the child’s emotional development.” Farrell v. Littell, 790
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N.E.2d 612, 616 (Ind. Ct. App. 2003) (interpreting Ind. Code § 31-14-14-1 2).
“By ‘its plain language,’ [the statute] requires a court to make a specific finding
‘of physical endangerment or emotional impairment prior to placing a
restriction on the noncustodial parent’s visitation.’” Id. (quoting In re Paternity
of V.A.M.C., 768 N.E.2d 990, 1001 (Ind. Ct. App. 2002), clarified on reh’g). An
order of supervised parenting time constitutes a restriction of parenting time
under Indiana Code section 31-17-4-1. Hatmaker v. Hatmaker, 998 N.E.2d 758,
761 (Ind. Ct. App. 2013).
[23] Father argues the trial court abused its discretion when it ordered him to
participate in supervised visitation with P.W. and J.W. because the trial court
did not make a specific finding that unsupervised parenting time might cause
physical endangerment or emotional impairment to P.W. and J.W. We agree.
The trial court was required to make such a finding to order supervised
visitation, and it did not. Therefore, we remand for the trial court to either: (1)
enter a specific finding that satisfies Indiana Code section 31-17-4-1; or (2)
remove the requirement that Father exercise supervised parenting time with
P.W. and J.W. See Farrell, 790 N.E.2d at 616 (noting statute required a specific
finding to support the restriction of parenting time).
2
Indiana Code section 31-14-14-1 governs parenting time in a paternity action, while Indiana Code section
31-17-4-1 governs parenting time in a dissolution action. The language of the two statutes is virtually
identical, and we have interpreted them to have the same meaning. Compare language of Ind. Code § 31-14-
14-1(a) with Ind. Code § 31-17-4-1(a); and see, e.g., In re Paternity of W.C., 952 N.E.2d 810, 815 n.2 (Ind. Ct.
App. 2011) (noting the relevant provisions in the two statutes are virtually identical).
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Conclusion
[24] Father has demonstrated an unequal distribution of the marital pot, and thus
the trial court’s failure to include findings to justify that distribution constitutes
an abuse of discretion. The trial court also abused its discretion when it ordered
Father to have supervised parenting time with P.W. and J.W. without entering
a specific finding to support that restriction, as required by statute. However,
the trial court did not abuse its discretion when it awarded sole legal and sole
physical custody of Minor Children to Mother.
[25] Accordingly, we reverse the trial court’s division of the marital property and
remand for it to: (1) equalize the distribution of the marital pot; or (2) enter
findings to support an unequal distribution of the marital pot. We also reverse
the trial court’s order that Father have supervised parenting time with J.W. and
P.W. and remand for the trial court to: (1) allow Father unsupervised parenting
time pursuant to the Indiana Parenting Time Guidelines; or (2) issue findings to
justify that restriction under Indiana Code section 31-17-4-1. We affirm the
trial court’s award of sole legal and sole physical custody of Minor Children to
Mother.
[26] Reversed in part, affirmed in part, and remanded.
Riley, J., and Mathias, J., concur.
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