Diamond Z. Wittlief v. Tom Franklin Hirschauer, III (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 23 2020, 9:11 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Diamond Z. Wittlief Jay T. Hirschauer
Carmel, Indiana Hirschauer & Hirschauer
Logansport, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Diamond Z. Wittlief, October 23, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-DC-2647
v. Appeal from the Hamilton
Superior Court
Tom F. Hirschauer, III, The Honorable Darren J. Murphy,
Appellee-Respondent Magistrate
Trial Court Cause No.
29D01-1208-DR-8515
Weissmann, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020 Page 1 of 35
[1] Diamond K. Wittlief (Mother) and Tom F. Hirschauer, III, (Father), have been
divorced for many years and, in the seven years since their dissolution decree
was entered, have continued to litigate myriad disputes at a somewhat
breathtaking pace. In this appeal (as opposed to the many other appeals filed
by Mother and dismissed by this Court), Mother appeals the trial court’s order
relating to the parties’ requests regarding child support, extracurricular
activities, and uninsured medical expenses. We affirm and remand with
instructions to: (1) reconsider whether Father should be given an income credit
for Child’s tuition costs and make findings on the issue as directed herein; and
(2) reconsider its modification of the extracurricular activities provision of the
parties’ mediated settlement agreement and make findings regarding Child’s
best interests as related to extracurricular activities.
Facts
[2] Mother and Father were married, and one child (Child) was born of the
marriage in September 2010. Mother and Father divorced, and on May 6,
2013, the trial court adopted their mediated settlement agreement, pursuant to
which the parents shared joint legal custody and Mother had primary physical
custody. Father received 156 annual overnights with Child.
[3] In the years following the settlement agreement, the parties continued to litigate
extensively. At the outset of the hearing from which this appeal stems, the trial
court noted that “this file has been churned in an incredible way over the last
few years and it was difficult for me to discern exactly what we’re hearing today
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and when it was filed.” Tr. Vol. II p. 3; see also id. at 76 (trial court observing
that Mother is a “prolific filer of motions” and commenting on the “shear [sic]
frequency of motions that have been filed in this case”). Included in the
extensive litigation were at least four prior appeals filed by Mother—but she
failed to perfect any of them, and they were all eventually dismissed.
[4] Having read the record and the trial court’s order, we agree with the trial court
that the matters at issue at this time are: “child support, the ratio of contribution
for extracurricular activities[,] and uninsured medical expenses.” Appealed
Order p. 1. We will recount only the facts relevant to these specific issues.
[5] On July 31, 2017, Mother filed a petition for modification of child support.1 In
relevant part, she argued as follows: (1) Mother and her husband had become
permanent custodians of another child and she should receive credit for that
child; (2) Father’s income was higher than the child support calculation
indicated; (3) Father should not have received credit for providing health
insurance coverage for Child because he did not provide the insurance card to
Mother or Child’s healthcare providers; and (4) Mother’s income had
substantially decreased because of a disability, and at the time of the motion,
her income consisted solely of Social Security benefits in the amount of $314.50
per week.
1
The motion also included a request to modify parenting time, but the trial court did not consider that issue
because one of Mother’s appeals, which related to parenting time and custody issues, was still pending at the
time of the relevant hearings.
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[6] On August 18, 2017, Mother filed a motion to find Father in contempt. In
relevant part, she argued that Father had failed to pay his portion of Child’s
extracurricular expenses, failed to provide her with Child’s health insurance
card, and failed to reimburse Mother for uninsured medical expenses.
[7] On August 24, 2017, Father filed a motion to find Mother in contempt for
failing to pay child support. Specifically, she was required by a December 2015
court order to pay $57 per week, and Father alleged that she had failed to pay
any child support since October 2016. Mother responded that the December
2015 order was based on fraud and that the garnishment percentage, which
amounted to over 50% of her weekly income, exceeded statutory limits.
[8] There were lengthy discovery-related delays during the litigation of these
motions. Therefore, on November 28, 2018, the trial court entered an order of
temporary child support, requiring Father to pay child support in the weekly
amount of $200 until a final child support order could be entered. On March
13, 2019, Mother filed a new motion to find Father in contempt, alleging that
he was $715.25 behind in child support payments as required by the temporary
order and that he was continuing to fail to pay his share of Child’s
extracurricular expenses, totaling nearly $700.
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[9] The trial court held an evidentiary hearing on the pending motions on February
4 and July 15, 2019. On October 11, 2019, the trial court issued an order on the
motions. In relevant part, it found and ordered as follows: 2
I. Extracurricular Expenses
1. The parties’ Mediated Settlement Agreement . . . provides
that [Child] may participate in three activities one time per
week and the parties shall proportionally contribute to the
expenses of these activities based on income.
***
3. [Mother’s] position is that she became unemployed in
October 2016 and eventually received disability benefits
from the United States Social Security Administration.
Thus, the income ratio of 52% for Father and 48% for
Mother has changed and should be reconfigured and
retroactively applied . . . .
4. . . . Father kept his payments at the 52% ratio as
ordered . . . [on] December 3, 2015.
***
2
Normally, we prefer not to quote so extensively from trial court orders. But given the confusing and
complex nature of these proceedings and the trial court’s thorough exploration of the history and issues
before it, we believe it appropriate in this case.
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7. Mother’s request for relief is that the Court retroactively
apply a new ratio for payment of extracurricular activities
to the date she lost her employment . . . .
8. Mother’s motion to modify the payment of extracurricular
activities wasn’t even filed until August 18, 2017.
***
16. Father is self-employed. His income is going to fluctuate
wildly from year to year. Mother’s income is flat. The
only income directly attributable to her is her SSD.
***
19. Father testified that Mother had the child in
extracurricular activities as many as 6 days a week at one
point. Currently, the child is in extracurricular activities
only three days a week but with multiple activities each
day.
***
23. The Court finds Father’s law firm distributes salary to
Father on a quarterly basis and has since he joined in
2015.
***
25. The Court finds that Father pays his share of the
extracurricular expenses incurred by his son on a quarterly
basis when salary is distributed to him by his law firm.
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***
28. The difference between what Father was ordered to pay
and what Father actually paid is $156. There was no
evidence received by the Court that Father willfully and
wantonly disregarded this Court’s order regarding
extracurricular activities. There was significant evidence
that Mother expected immediate payment . . . despite clear
communication to her for years that Father only gets paid
on a quarterly basis.
29. There was significant evidence that Mother overuses the
extracurricular activity provision . . . despite the significant
reduction in her income due to being adjudicated disabled.
30. Mother’s Motion seeking to hold Father in contempt for
nonpayment of extracurricular activities is DENIED. The
$156 owed by Father . . . shall be addressed below.
II. Uninsured Medical Expenses
a. Nonpayment
***
32. . . . In [the controlling] Order, Mother is responsible for
the first $907.92 of uninsured medical expenses for the
child. Thereafter, Mother shall pay 43% and Father
57% . . . each year.
***
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34. Mother seeks payment of uninsured medical expenses
dating back to 2016. . . . The Court found [Mother’s
supporting] exhibits were hearsay, as they lacked the
required business record affidavit, and did not admit the
documents. Thus, the Court did not receive evidence
upon which the Court could base a decision on how much
uninsured medical expenses were incurred by Mother.
The Court also did not receive sufficient evidence as to
when Mother satisfied the 6% rule for her share . . . .
35. Mother further acknowledged that she was unaware
Father had paid for some of her claimed uninsured health
expenses directly . . . .
***
37. Mother repeatedly stated that she possessed emails
explaining to Father when she hit the 6% rule amount and
that she provided proof of payment for her expenses to
Father for reimbursement. These emails, however, were
never offered or admitted for the Court to consider as
evidence.
38. As a result, Mother’s [claim regarding] uninsured medical
expenses fails for lack of evidence . . . .
39. Mother’s Motion to find Father in contempt for
nonpayment of uninsured medical expenses is DENIED.
***
B. Failure to Maintain Health Insurance
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40. . . . Mother claims Father should be held in contempt
because he let the health insurance he was ordered to
provide [for Child] lapse at some point.
***
43. According to Mother, in March 2018 Father obtained
health insurance as required but the insurance only covers
emergencies and accidents. It did not cover occupational,
speech or physical therapy that the child requires . . . .
***
45. The Court finds that neither the original Decree nor [an
order from November 2015] dictate specific types of
coverage which must be included in Father’s health
insurance plan. Thus, Father cannot be held in contempt
by this Court for [] having [a] health insurance plan which
does not cover occupational, speech or physical therapy.
***
50. The Court finds that Father’s failure to cover the child
with a health insurance plan was related to changing
marketplace plans and coverage caused by him leaving
government employment, entering a small law firm
practice and alteration of coverage by the provider.
51. The Court does not find a willful, wanton disregard for
[the November 2015 order].
52. The Court finds that Mother continued her primary
coverage on the child so the child had health insurance
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throughout the entire time period contained in Mother’s
motion.
***
54. Mother’s request to hold Father in contempt is a request
without a remedy. Father obtained health insurance again
eleven months prior to the first hearing on Mother’s
motion. Mother had coverage for the child through
Father’s gap period from her subsequent spouse. . . .
55. Mother’s motion seeking to hold Father in contempt for
not maintaining health insurance is DENIED.
IV. Child Support
a. Retroactive Application of New Child Support Amount
56. Mother seeks a modification of child support in her
August 1, 2017 Motion to Modify backdated to the date she
was adjudicated as disabled and started receiving SSD
disability income on October 31, 2016.
57. The Court is without legal authority to retroactively apply
a child support modification for the time period prior to
Mother filing her child support modification motion. . . .
***
59. . . . [W]hile this Court may choose to grant Mother’s
request for relation back to the filing date of August 1,
2017, Mother has no statutory entitlement to such.
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60. . . . [T]he Court notes Mother remarried in July 2014.
Evidence received by the Court indicates Mother’s spouse
earns income of between $165,000 and $185,000 during
the years this Court was asked to review.
61. . . . [T]he Court received evidence regarding Mother’s
travel during the time period for which this Court was
asked to review which included a trip to the Mexican
Riviera in January, 2018, a European vacation in April
2018, a trip to Washington, D.C. in May 2018, a trip to
New York [C]ity, a multiday trip to California in June
2018, and a four week tour of national parks in the western
United States in 2018. Mother is not suffering financially.
***
65. Father would be significantly prejudiced by a retroactive
application of a child support [recalculation] due to the
change in ratios for extracurricular activities, change in the
6% rule for uninsured medical expenses and a massive
arrearage in child support for a two-year retroactive
application.
66. Mother has not shown a prejudice to her if the Court does
not retroactively apply the modification.
***
68. The Court finds the appropriate date to apply the child
support modification is the first Friday after this Order is
filed, which is Friday, October 11, 2019.
b. Overnights
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***
71. In previous orders and the current controlling child
support order, this Court has credited Father with 156
overnights.
***
75. Mother . . . hotly disputed the number of overnights that
Father should be credited . . . because Father’s expenses
for child are in some cases covered by the paternal
grandparents.
76. . . . Mother’s position is paternal grandparents
occasionally feed the child, transport the child and pay for
clothing during Father’s parenting time. Therefore,
Father’s overnight credit should be reduced[.]
77. Father testified that the child, when it is Father’s parenting
time, may spend the night with the child’s paternal
grandparents once a month or maybe once every other
month. . . .
78. Mother believes that, because Father is relieved of the
expense for feeding and caring for the child during the
nights when the child spends the night at paternal
grandparents, Father should not receive credit for these
overnights. . . .
79. Mother also seeks to further reduce Father’s overnight
credit because Father and [C]hild hav[e] weekly brunches
with paternal grandparents. The evidence is that at these
brunches, the paternal grandparents will pay for some if
not all of the food used in this meal . . . .
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80. Mother further seeks to reduce Father’s overnight credit
because paternal grandmother transports the child . . . and
also buys the child clothing.
***
83. The Court finds that any provision of clothing to the child
. . . is a de minimus [sic] concern. . . .
84. Although it is clear that paternal grandparents contribute
to the weekly brunch . . . , the Court finds the evidence
insufficient as to how much this meal reduces Father’s
costs for caring for the child.
85. The same is true for transportation. . . .
86. Mother refuses to take into consideration the fact that
Father solely pays $561 per month for ten months of the
year to educate the child at a private school, St. Luke’s
Catholic School. . . . Father also solely pays for the child’s
school uniforms . . . . Mother objects to the child
attending private school . . . . As education is a controlled
expense for which Mother would normally be responsible,
and because this controlled expense has now been
transferred to Father, the Court feels it appropriate to
consider Father’s educational expenses when considering
Mother’s request to reduce Father’s overnight credits for
assistance he may receive from the paternal grandparents.
87. The Court finds Father’s assumption of the controlled
expenses for education vastly dwarfs and outweighs any
incidental assistance Father may receive from the paternal
grandparents . . . .
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88. The Court finds Father shall continue to receive 156
overnights for child support calculation purposes . . . .
c. Subsequent Born Child Credit
89. Mother . . . requests that she be given credit for a
subsequent child . . . .
90. [A Kentucky trial court order] placed the daughter of
Mother’s current spouse’s cousin with [Mother] and her
husband. . . .
***
95. The real dispute in this case is whether the [Kentucky trial
court order] constitutes a legal adoption of [S.B.]
***
99. The Court finds the [Kentucky trial court order] does not
create a legal adoption. It is equivalent to a CHINS
nonparental placement order.
100. Because [S.B.] was neither born to Mother nor legally
adopted . . . , the Court is without authority to credit
Mother with a subsequent child multiplier credit . . . .
d. Father’s Income
101. Father is self-employed at [a] law firm . . . .
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102. Father testified that he just received his partnership
Schedule K-1 for calendar year 2018 one week prior to the
July 15, 2019 hearing. . . . Father’s 2018 K-1 indicates
Father’s self-employed earnings as $139,826.
103. Mother obtained Father’s personal bank account
information through discovery and reported net deposits
for Father in 2018 as $178,000. Mother requests that the
Court use $178,000 as Father’s annual gross income for
child support purposes.
104. Father testified that the net deposits in his bank account
include reimbursements from the law firm for expenses he
incurred during his practice such as deposition costs, etc.
Father also testified that he received a loan from his
parents during 2018 to cover Father’s tax debt which was
deposited into this bank account. . . .
105. . . . [Father’s] net deposits into his bank account include
things the Court cannot include in its calculation of child
support.
106. The Court finds Father’s testimony that money he received
from his parents in 2018 [was] a loan to assist Father with
his tax debt to be credible . . . .
***
108. The court finds Father’s weekly gross income is $2,689.
($139,826 annually divided by 52 weeks in a year =
$2,689).
***
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e. Mother’s Income
110. Mother’s income is as difficult to gauge as Father’s.
111. Mother was determined to be disabled and began to draw
SSD in October 2016.
***
114. Mother’s $18,038 SSD income annually divided by 52
weeks a year = $346 a week in income directly attributable
to Mother.
***
125. The Court attributes to Mother only her weekly gross
income obtained from her SSD benefits in the amount of
$346 a week.
***
130. The Child Support Obligation Worksheet attached to this
Order recommends that Father shall pay Mother $235.00
per week in child support.
131. Mother has satisfied her burden that her disability . . .
represents a substantial and continuing change of
circumstances which renders the prior child support order
unreasonable. The amount of the change in the Court’s
CSOW is also greater than twenty (20) percent.
132. The Court finds it necessary to deviate downward from the
recommended $235 in the CSOW due to Father’s
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assumption of the entire [$5,610] 2018 tuition cost for the
child’s education and entire school uniform cost for the
child. The Court deviates downward by $35 per week.
133. Father is ordered to pay mother $200 per week in child
support effective Friday, October 11, 2019.
134. The Court notes that it considered Mother’s request to
reduce her gross weekly income for her own uninsured
medical expense and rejected it due to the income of her
household. . . . The Court considered her argument about
Father’s expenses related to his girlfriend and rejected it as
those items were not business deductions but were paid for
with his income earnings which the Court has already
factored into Father’s gross weekly income calculation.
g. Child Support Arrearage for Father
135. The Court finds Father current with his child support as of
the date of the last hearing, July 15, 2019. No arrearage is
found for Father.
h. Child Support Arrearage for Mother
136. The Court finds that Mother, when she was required to
pay Father support, didn’t pay the support as ordered.
The Court finds Mother in arrears in the amount of
$1,953. This evidence was unrebutted.
137. Father did not ask this Court to find Mother in contempt
for this arrearage. Father only asks for a credit of $1,953.
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138. The Court credits Father $1,953. Father’s child support
obligation will be abated until this credit is reduced to
zero.
It is Therefore Ordered That:
***
9. The Court orders ¶ 3.04 of the Decree is modified . . . . The
Court received bountiful evidence that the child has been
placed in way more activities than were ever contemplated
at the time of the Decree. Moving forward for all activities
for which the child is enrolled after the effective date of
this order, Father shall only be responsible for those
activities with which he consents in writing prior to
enrollment. . . . Mother may choose to enroll the child in
activities for which Father doesn’t consent but she shall be
solely responsible for the costs of that activity without
contribution from Father.
Appealed Order p. 1-38 (emphases original, some internal citations omitted).
Mother now appeals.
Discussion and Decision
[10] Mother argues that the trial court erred in multiple ways with respect to its
calculation of child support and its rulings related to Child’s extracurricular
activities and uninsured medical expenses.
[11] Our Supreme Court has articulated the well-established standard of review for
family law matters as follows:
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When reviewing judgments with findings of fact and conclusions
of law, Indiana’s appellate courts “shall not set aside the findings
or judgment unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility
of the witnesses.” Ind. Trial Rule 52(A). Appellate judges are not
to reweigh the evidence nor reassess witness credibility, and the
evidence should be viewed most favorably to the
judgment. Findings are clearly erroneous only when the record
contains no facts to support them either directly or by
inference. Appellate deference to the determinations of our trial
court judges, especially in domestic relations matters, is
warranted because of their unique, direct interactions with the
parties face-to-face, often over an extended period of time. Thus
enabled to assess credibility and character through both factual
testimony and intuitive discernment, our trial judges are in a
superior position to ascertain information and apply common
sense, particularly in the determination of the best interests of the
involved children.
Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (some internal citations and
internal quotation marks omitted). As always, we apply a de novo standard of
review to issues of law. Redd v. Redd, 901 N.E.2d 545, 549 (Ind. Ct. App.
2009).
I. Child Support
[12] On the issue of child support, Mother argues that the trial court erred in
calculating her income and the credits due to her, calculating Father’s income
and the credits due to him, and finding that Father does not have, and Mother
does have, a child support arrearage.
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A. Mother’s Income and Credits
1. Retroactivity
[13] There is no dispute that Mother has been disabled and unable to work since
October 2016. The only income she receives is her Social Security Disability
benefits, which totaled $18,038 (or $346 per week) in 2018.3 The trial court
attributed to Mother a weekly income of $346, with which she does not quarrel.
[14] What Mother does find fault with, however, is the trial court’s refusal to apply
this income retroactively to October 31, 2016, the date of her disability. The
trial court observed that Mother did not file her petition to modify child support
until July 31, 2017. As such, the very earliest that the income calculation could
apply retroactively is July 31, 2017. See Becker v. Becker, 902 N.E.2d 818, 820
(Ind. 2009) (holding that “[t]he modification of a support obligation may only
relate back to the date the petition to modify was filed, and not an earlier
date”).
[15] Becker holds that modification retroactive to a date prior to filing of the petition
to modify is permitted in two instances: (1) when the parties have agreed to and
carried out an alternative method of payment which substantially complies with
the spirit of the decree; or (2) the obligated parent takes the child into the
obligated parent's home and assumes custody, provides necessities, and
3
Father argued below that the income of Mother’s husband should be imputed to her. The trial court,
however, declined to do so, see Appealed Order p. 32-33, and Father did not appeal that portion of the order.
Therefore, we will not consider that issue.
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exercises parental control for a period of time that a permanent change of
custody is exercised. Id. Mother relies on neither of those instances in arguing
for an exception to our well-settled rule prohibiting retroactive modification of
child support. The trial court did not err.
2. Subsequent Born Child Credit
[16] Next, Mother argues that the trial court erred by refusing to give her a credit for
a subsequent born or adopted child. According to Mother, S.B. is her
husband’s cousin’s daughter. S.B. was in the custody of the Department of
Child Services in Kentucky and was part of a child in need of services case. She
was placed in relative care with Mother and her husband in January 2016, and
in June 2016, the Kentucky family court entered an order awarding permanent
custody of S.B. to Mother and her husband. Tr. Ex. Vol. IV p. 45-47. The
order was not an adoption order—Mother and her husband are S.B.’s
permanent custodians, not her adoptive parents.
[17] Indiana Child Support Guideline 3C(1) provides that a parent’s weekly income
shall be adjusted for “parents who have a legal duty or court order to support
children [] born or legally adopted subsequent to the birthdates(s) [sic] of the
child(ren) subject of the child support order . . . .” Mother argues that her
weekly income should be adjusted based on S.B.’s placement in her permanent
custody.
[18] We cannot agree. The plain language of this guideline refers only to
“Subsequent-born or Legally Adopted Child(ren),” and makes no mention of
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any other custody arrangements that would qualify for the adjustment. Child
Supp. G. 3C(1). Had our Supreme Court intended to encompass situations
beyond subsequently born or legally adopted children, it could have done so.
Given that it did not, the trial court did not err by denying Mother’s request for
a credit based on the permanent custody order.
3. Credit for Mother’s and Child’s Uninsured Medical
Expenses
[19] Next, Mother argues that the trial court erred by denying her request to adjust
her weekly income based on her own and Child’s substantial uninsured medical
expenses. She directs our attention to Child Support Guideline 3D(3), which
indeed permits a parent’s income to be adjusted for extraordinary health care
expenses.
[20] With respect to Child’s uninsured medical expenses, Mother does not shoulder
that burden alone. Father pays a share of those expenses that is proportionate
to the parties’ incomes and, as we find below, there is no evidence that he has
been anything other than current with respect to paying his portion.
[21] With respect to Mother’s own expenses, she testified that her uninsured medical
expenses average approximately $1,840 per year. The trial court “considered
Mother’s request to reduce her gross weekly income for her own uninsured
medical expense[s] and rejected it due to the income of her household.”
Appealed Order p. 35. As noted above, while the evidence in the record is not
wholly clear on the precise income made by Mother’s husband, it is clear that
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he earns enough money to keep Mother and Child comfortable and to maintain
the standard of living to which Child was accustomed prior to the divorce. And
as always, decisions that require weighing the evidence are solidly within the
trial court’s discretion. See Best, 941 N.E.2d at 502. We find that the trial court
did not err by deciding not to credit Mother for her own or Child’s uninsured
medical expenses.
B. Father’s Income and Credits
1. Income
[22] Mother argues that the trial court erroneously calculated Father’s income.
Father is self-employed as a partner at a law firm. Father offered into evidence
his Schedule K-1 for calendar year 2018, which showed that he earned $139,826
in 2018. The trial court found, based on the K-1, that Father’s weekly income
totals $2,689 ($139,826 divided by 52 weeks in a year).
[23] Mother argues that the trial court should have recalculated Father’s income
based on evidence she offered showing net deposits in Father’s bank account in
2018 totaled $178,000. Therefore, she maintains that Father’s annual income
should be $178,000 rather than $139,826.4
[24] Father explained that the following transactions are included in those deposits:
4
Mother also argued that money given to Father by his parents in 2017 for a down payment on a house
should be factored in. But the trial court noted that because it was not applying its calculation retroactively,
it would focus only on the parties’ 2018 income. We find no error in this regard.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020 Page 23 of 35
• Reimbursement from the law firm for business expenses, such as
deposition costs.
• A 2018 loan from his parents to cover Father’s tax debt.
The trial court agreed that business expense reimbursements may not be
included in a child support calculation. And the court specifically found
credible Father’s testimony that the money he received from his parents was a
loan because: (1) at least two checks show he repaid some money to his parents;
and (2) Father is a licensed attorney who would risk professional ramifications
if he lied in court. We cannot and will not second-guess the trial court’s
assessment of Father’s credibility. Aside from the bank account statements, the
only evidence regarding Father’s income was the Schedule K-1, and the trial
court did not err by relying on the income reflected in that document in
calculating Father’s income for child support purposes.
2. Credit for Overnights
[25] Next, Mother argues that the trial court erroneously calculated the number of
annual overnights that Father has with Child. See Ind. Child Support Guideline
6 (providing that a “credit should be awarded for the number of overnights each
year that the child(ren) spend with the noncustodial parent”). The
Commentary to Child Support Guideline 6 notes that an overnight should
include “the costs of feeding and transporting the child, attending to school
work and the like. Merely providing a child with a place to sleep in order to
obtain a credit is prohibited.”
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[26] Mother does not seem to dispute that Child actually spends the night with
Father for approximately 156 nights per year. Instead, she argues that the
number should be downgraded because of the following assistance provided by
Child’s paternal grandparents:
• Child occasionally spends the night with his paternal grandparents
during Father’s parenting time. This occurs approximately once a month
or once every other month.
• Father and Child have weekly brunch with paternal grandparents, who
sometimes pay for some or all the food for those meals.
• Paternal grandmother drives Child to Mother’s house in the morning
after Father’s parenting time and picks Child up from his occupational
therapy appointments.
• Paternal grandmother occasionally buys Child clothing.
Mother argues that Father’s parenting time should be reduced by eighteen
overnights for the time Child spends at paternal grandparents’ house and by
another fifty overnights for the brunches, transportation, and clothing.
[27] This evidence certainly shows that paternal grandparents and Child have a
strong bond, that they love him and their son, and that they are there as a
support for the family unit. This evidence does not show that Father is “merely
providing the child with a place to sleep” during his parenting time. Child
Supp. G. 6 Cmt. Moreover, even if the evidence more compellingly showed
that paternal grandparents were providing a substantial financial help to
Father’s support of Child, there is no evidence in the record showing how much
the overnights, weekly brunches, transportation help, and clothing purchases
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020 Page 25 of 35
actually reduce Father’s costs of caring for Child. 5 Therefore, we find no error
with respect to the trial court’s denial of Mother’s request to decrease the
number of overnights Father is credited for spending with Child.
3. Credit for Tuition
[28] Next, Mother argues that the trial court erred by giving Father credit for the
tuition he pays for Child to attend a private school. The trial court noted that
Father assumed “the entire [$5610] 2018 tuition cost for the child’s education
and entire school uniform cost for the child.” Appealed Order p. 34. As a
result of that credit, the trial court deviated downward from what the Child
Support Worksheet showed Father’s weekly support obligation would be—
$235—to a total of $200 per week.
[29] Mother objects to Child’s enrollment at the private school. Mother lives in
Carmel, which she believes has a public school system that can provide a
comparable education at little to no cost. Therefore, she insists that Father
should not be credited for this substantial expense, which she believes is
unnecessary.
[30] Indiana Child Support Guideline 8 provides that extraordinary educational
expenses for elementary or secondary education may be factored into the
5
The trial court also notes that Father has assumed the sole responsibility of paying for Child’s private school
tuition and uniforms, which totals over $5610 per year. This evidence shows that Father is far from shirking
his financial obligation to care for Child—if anything, he is going above and beyond what is required.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020 Page 26 of 35
parents’ respective child support obligations. The Commentary states that “[i]f
the expenses are related to elementary or secondary education, the court may
want to consider whether the expense is the result of a personal preference of
one parent or whether both parents concur . . . and whether or not education of
the same or higher quality is available at less cost.” See also Sims v. Sims, 770
N.E.2d 860, 864 (Ind. Ct. App. 2002) (remanding child support order to trial
court where trial court awarded extraordinary educational expenses but did not
enter written findings in support of the order).
[31] While Guideline 8 does not explicitly require the trial court to consider the
above factors, we believe it is the best practice to do so, especially in a case like
this one where: (1) Father apparently concedes that the quality of education
offered by the Carmel public school system is equivalent to that offered by
Child’s private school; and (2) the trial court’s order resulted in a deviation
downward from the amount reflected in the Child Support Worksheet.
Therefore, we are remanding with instructions for the trial court to make
explicit findings on (1) the personal preferences of Mother and Father as to
Child’s education; (2) the respective quality of education provided by the
Carmel public school system and the private school that Child attends; (3) the
best interests of Child as related to education; and (4) if the trial court still
provides Father with a weekly credit of $35, a rationale for that decision, given
Mother’s objections.
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C. Mother’s Arrearage
[32] Before Mother became disabled, she was employed and required to pay child
support. It is undisputed that she is in arrears in the amount of $1,953. As
noted above, the trial court may not apply a retroactive change in child support
relating back to a date prior to the filing of the motion to modify. Furthermore,
it is well established that “after support obligations have accrued, a court may
not retroactively reduce or eliminate such obligations.” Becker, 902 N.E.2d at
820.
[33] Mother argues that after she lost her employment in 2016, her weekly child
support payments exceeded 50% of her disposable income, which violates a
federal statute. Had she filed a motion to modify at that time and made that
argument, her argument may well have succeeded. But because she did not do
so, she accrued an arrearage that may not now be abated. Id. Therefore, the
trial court did not err by awarding a credit to Father in the amount of Mother’s
arrearage.
D. Father’s Alleged Arrearage
[34] While these matters were pending, the trial court entered an order requiring
Father to pay temporary child support in the amount of $200 per week. Mother
alleges that Father was in arrears on those payments. The trial court found that
as of the time of the hearing, Father was current on child support with no
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020 Page 28 of 35
arrearage. There is no evidence in the record that Father had an arrearage at
the time of the hearing; therefore, the trial court did not err on this basis.6
II. Extracurricular Activities
A. Contempt for Alleged Failure to Pay
[35] Next, Mother argues that the trial court erred by declining to hold Father in
contempt for his alleged failure to pay his share of Child’s extracurricular
activities. The parents’ income ratio determines their share of the
extracurricular activities. Between November 30, 2015 (when the trial court
entered an order changing the ratio), and August 18, 2017, when Mother filed
her motion to modify the ratio, Father was to pay 52% of the cost and Mother
was to pay 48%.
[36] At the hearing, the parties stipulated that during that timeframe, the total
amount of Child’s extracurricular activities was $5,231.10, and that Father had
paid $2,564.17. The difference between what Father actually owed ($2,720.17)
and what he paid was $156. The trial court reviewed and weighed the evidence
and found no indication that Father had willfully and wantonly disregarded the
order requiring him to pay 52% of Child’s extracurricular expenses. Nothing in
the record causes us to question this assessment. Therefore, we decline to
6
Mother seems to argue that while Father was not in arrears, his payments were frequently late. She
apparently believed that his payments were due on Wednesdays, while Father believed his payments were
due on Fridays. Regardless of that discrepancy, it is undisputed that Father was fully up to date in his
obligation at the time of the hearing.
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reverse the trial court’s denial of Mother’s request to hold Father in contempt
with respect to extracurricular expenses.7
B. Retroactivity of New Ratio
[37] Next, Mother argues that the new ratio of their respective incomes should be
applied retroactively to the date of her disability (nearly one year before she
filed the motion to modify the payment of extracurricular activities). For the
reasons expressed above regarding retroactivity of Mother’s income with
respect to her child support obligation, the trial court did not err by declining to
do so.
C. Modification of Decree
[38] Mother next argues that the trial court erred by sua sponte modifying their decree
of dissolution with respect to Child’s extracurricular activities. Leading up to
the modification, the trial court found as follows:
18. . . . the child is now participating in way more numerous
extracurricular activities than listed in the Mediated
Agreement, including Goldfish, gymnastics, Spanish
language (in addition to Lithuanian as set out in the
Mediated Agreement), horseback riding, Grand Champion
Equipment, village music, Shortee’s golf, Chess,
basketball, fishing frenzy camp, Minecraft Coding Camp,
and fencing.
7
Ultimately, the trial court deducted $156 from the amount of Mother’s child support arrearage; therefore,
the trial court ensured that Father’s obligation was satisfied in full.
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19. Father testified that Mother had the child in
extracurricular activities as many as 6 days a week at one
point. . . .
20. Father testified that he did not consent to some of the
activities in which his child participated. The child was
enrolled in the protested activity anyway. Father still paid
for some of the activities despite his protest.
***
29. There was significant evidence that Mother overuses the
extracurricular activity provision in the parties[’] Mediated
Agreement despite the significant reduction in her income
due to being adjudicated disabled.
Appealed Order p. 6, 8 (emphases original). Based on these findings, the trial
court ordered as follows:
9. The Court orders ¶ 3.04 of the Decree is modified based on
overreliance of Mother on the ‘some other equivalent
activity of the same or lesser cost’ language in this
provision. The Court received bountiful evidence that the
child has been placed in way more activities than were
ever contemplated at the time of the Decree. Moving
forward for all activities for which the child is enrolled
after the effective date of this order, Father shall only be
responsible for those activities with which he consents in
writing prior to enrollment. Any interpretation of the
parties or language in ¶ 3.04 of the Decree which requires
Father to agree to a minimum of three activities at any one
time is vacated. Mother may choose to enroll the child in
activities for which Father doesn’t consent but she shall be
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020 Page 31 of 35
solely responsible for the costs of that activity without
contribution from Father.
Id. at 38 (emphases original).8
[39] The decree of dissolution incorporated the parents’ mediated settlement
agreement. Generally, a trial court may modify a mediated settlement
agreement in a family law case if it finds that the modification is in the child’s
best interests. See Moell v. Moell, 84 N.E.2d 741, 744 (Ind. Ct. App. 2017)
(holding that settlement agreement involving child-related matters may be
modified and that “the court’s paramount concern” is “the best interests of the
children”).
[40] Here, while the trial court found that Mother was enrolling Child in more
extracurricular activities than originally contemplated by the parties, the court
sua sponte modified the parties’ settlement agreement without making findings
as to what is in Child’s best interests. Therefore, we remand with instructions
that the trial court consider what is in Child’s best interests with respect to
extracurricular activities and issue related findings and conclusions thereon.
8
This issue would have been a much closer call had the trial court used the decree as a starting point by
ordering that for every extracurricular activity above and beyond the three agreed-upon activities, Father has to
consent in writing, but that he must still agree to (and help pay for) the first three. That, however, is not what
the trial court’s order says. In fact, it goes so far as to say that “[a]ny interpretation” of the original decree
“which requires Father to agree to a minimum of three activities at any one time is vacated.” Appealed
Order p. 38.
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III. Child’s Uninsured Medical Expenses
A. Contempt for Alleged Failure to Pay
[41] Mother contends that the trial court erred by denying her request to hold Father
in contempt for his alleged failure to pay his share of Child’s uninsured medical
expenses. Mother is responsible for the first $907.92 of the uninsured medical
expenses each year; after that, she pays 43% and Father pays 57%.
[42] A determination of whether a party is in contempt is within the trial court’s
sound discretion, and we will reverse only where there has been an abuse of
that discretion. Bessolo v. Rosario, 966 N.E.2d 725, 730 (Ind. Ct. App. 2012).
An abuse of discretion occurs where the trial court’s ruling is against the logic
and effect of the facts and circumstances before the court. Id.[43] Mother proffered certain documents purporting to show the amount of Child’s
uninsured medical expenses from 2016 to 2018 as well as emails she claimed to
have sent to Father seeking reimbursement. None of this evidence was
admitted at trial and therefore does not support Mother’s contention that the
Father should be held in contempt.
[44] Mother notes that she is a pro se litigant, but pro se parties are held to the same
standards as attorneys. E.g., Goossens v. Goossens, 829 N.E.2d 36, 43 (Ind. Ct.
App. 2005). The simple fact of the matter is that the trial court had no
admissible evidence to consider that supported Mother’s claims. Therefore, the
trial court did not err by denying Mother’s request to hold Father in contempt
on this basis.
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B. Contempt for Alleged Failure to Maintain
[45] Finally, Mother argues that the trial court should have held Father in contempt
for his failure to maintain health insurance for Child during a time when he was
court ordered to do so. In December 2015, the trial court ordered both parents
to continue to carry health insurance for the Child because they each claimed
that their policy was superior to the other’s. When Father joined the law firm
in 2015, he obtained health insurance as required. His policy was through the
marketplace and he learned at some point that all of Child’s healthcare
providers were out of network on his plan. Because the policy was very
expensive and did not provide useful coverage, he cancelled it. There is no
evidence in the record as to when he cancelled it. In March 2018, Father
purchased a new policy that covers emergencies, accidents, and dental and
orthodontic work. It does not cover occupational, speech, or physical therapy.
[46] As for the gap in coverage, there is no evidence in the record as to how long of
a gap it was. And nothing in the record causes us to second-guess the trial
court’s assessment that the reason Father cancelled his policy was related to
changing marketplace plans and a change of employer. Given this record, we
find no error with respect to the trial court’s conclusion that Father did not
willfully or wantonly disregard the December 2015 order. See Bessolo, 966
N.E.2d at 730.
[47] As for the quality of Father’s current plan, we agree with the trial court that
nothing in the December 2015 order required a specific type of coverage. As
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such, there is no basis to hold Father in contempt for having a plan that does
not cover occupational, speech, or physical therapy.
[48] We also note, as did the trial court, that Mother always had a health insurance
policy in place that provided coverage to Child, meaning that there was no gap
in coverage for Child. And Mother offered no admissible evidence tending to
show that she paid more without Father’s secondary coverage during the period
when his coverage lapsed. The same holds true for her claim that Father failed
to provide her with a health insurance card. For all these reasons, the trial
court did not err by denying Mother’s request to hold Father in contempt for
failing to maintain health insurance coverage for Child.
Conclusion
[49] The judgment of the trial court is affirmed and remanded with instructions to:
(1) reconsider whether Father should be given an income credit for Child’s
tuition costs and make findings on the issue as directed herein; and
(2) reconsider its modification of the extracurricular activities provision of the
parties’ mediated settlement agreement and make findings regarding Child’s
best interests as related to extracurricular activities.
Bailey, J., and Vaidik, J., concur.
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