David Delong v. Kim Delong

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose Apr 16 2013, 8:27 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
PATTI J. TAYLOR MICHAEL W. REED
Taylor Law Office, P.C. Reed & Earhart Attorneys at Law, P.C.
Warsaw, Indiana Warsaw, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID DELONG, )
)
Appellant, )
)
vs. ) No. 43A03-1206-DR-299
)
KIM DELONG, )
)
Appellee. )
APPEAL FROM THE KOSCIUSKO CIRCUIT COURT
The Honorable James R. Heuer, Special Judge
Cause No. 43C01-0810-DR-503
April 16, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
David DeLong (“Father”) appeals from the trial court’s custody determination and
child support calculation in the dissolution of his marriage to Kim DeLong (“Mother”), as
well as from the court’s order on his motion to correct errors. Father raises three issues,
which we revise and restate as:
I. Whether the court’s findings regarding the custody of Wh.D. and
We.D. were clearly erroneous;
II. Whether the court’s child support calculation was clearly erroneous;
and
III. Whether the court abused its discretion in appointing, as amended in
its order on Father’s motion to correct errors, a Parenting Time
Coordinator.
We affirm in part, reverse in part, and remand.
FACTS AND PROCEDURAL HISTORY
Father and Mother were married on April 25, 1998, and two children were born to
the marriage: daughter Wh.D. in January 2004 and son We.D. in November 2005. They
lived at a residence in Leesburg, Indiana, for the balance of their marriage, and Father
was employed with DePuy Orthopedics as a Business Relationship Manager.1 On
October 3, 2008, Mother filed a petition for dissolution of marriage, and on October 10,
2008, a provisional order was entered by agreement of the parties establishing temporary
custody with Mother, Father having parenting time pursuant to the Indiana Parenting
Time Guidelines (the “Guidelines”). The provisional order also assigned to Father
possession of the marital residence.
1
At the final hearing held on August 23, 2011, Father testified that he was earning approximately
$120,000 in annual base salary plus a performance-based bonus.
2
On October 16, 2008, Mother filed a Verified Motion to Modify Provisional
Orders to restrict Father’s parenting time due to his “recent conduct and actions,” also
noting that Father “lacks stability,” and specifically asking that Father’s parenting time
not include overnights or extended holiday parenting time. Appellant’s Appendix at 41.
In December 2008, Mother was hired as an assistant branch manager at a bank in which
she was paid $1,350.00 every two weeks, with the possibility of bonus pay. On February
10, 2009, Father filed a Motion to Modify Provisional Orders, and on March 4, 2009, the
court entered a modification order stating that, with the exception of Mother’s change in
employment status, there had not been a change in circumstances making the existing
provisional order unreasonable, and concluding that the provisional order would remain
in full force and effect. The order also stated that Father was to pay $458.31 per week in
child support, as well as 16% of any gross amount from bonus pay.
On May 11, 2009, Mother filed a motion to determine extended parenting time,
stating that Father has requested half of the summer for extended parenting time, that the
Guidelines provide for half of summer “vacation” for children five years or older, that
although Wh.D. is five years old she has not attended school and accordingly is not on
“vacation,” and that it is not in the children’s best interest to allow Father to have
extended parenting time at this time. Id. at 46. On May 28, 2009, the parties agreed to a
summer parenting time schedule which included thirty overnights for Father, and this
schedule was filed with the court the following day. On September 14, 2009, Father filed
a motion for custody evaluation or psychological/parenting evaluation, and on September
29, 2009, Mother filed an objection to Father’s motion.
3
On October 26, 2009, Mother filed a Motion to Restrict Parenting Time and stated
that Father took the children on a cruise during his extended parenting time and only
notified Mother of his plans via an email sent the day the trip commenced. On December
8, 2009, Father filed a Motion to Modify Provisional Order as to Custody and Parenting
Time which noted that Mother had filed her third formal request to reduce or restrict
Father’s parenting time, that Father fully complied with the Guidelines regarding the
cruise, that Mother has interpreted the Guidelines as a “maximum” and does not allow
Father additional parenting time for certain occasions, and that Mother has refused to
engage in discussions concerning decisions affecting the children. Id. at 54. He
requested that the court modify custody to joint legal custody, that he receive additional
parenting time during the week, and that the court grant his motion for custody evaluation
or psychological/parenting evaluation.
On December 22, 2009, Mother filed a request for the court to appoint a custody
evaluator, and on February 9, 2010, the court issued an order stating that the parties
stipulate and agree to a custody evaluation by Dr. Stephen Ross. On March 1, 2010,
Father filed his Verified Emergency Motion to Terminate Counseling and for
Independent Evaluation stating that Mother had been taking We.D. to meet with Donald
Munn of Crystal Valley Professional Consultants for counseling without consulting with
Father, that neither Mother nor Mr. Munn would allow Father access to the counseling
records, that Mr. Munn is not a child psychologist and is not qualified to evaluate or
counsel a four-year-old child, and that Mother “is attempting to perpetuate allegations of
sexual abuse . . . by [Father], the same which have been fully investigated by the police
4
and Department of Child Services and found to be unsubstantiated.” Id. at 58. On March
9, 2010, following a conference call, the court denied Father’s motion.
On December 9, 2010, following various filings by the parties, the court issued an
order in which it observed at the outset:
The Court has taken under advisement [Mother’s] Motion to Enforce
Court’s Order; Objection and Request for Sanctions as to Non-Party
Request for Production; Motion to Restrict Parenting Time as well as
[Father’s] Motion to Modify Provisional Order as to Custody and Parenting
Time; Motion for Credit to Child Support Obligation; Objection and
Request for Sanctions as to Non-Party Discovery; and Request for Further
Ruling on Motion to Modify Child Support.
Id. at 60. In the order, the court made twenty findings, including that custody issues
should be reserved until Dr. Ross’s custody evaluation had been completed, that Mother
has not demonstrated any potential harm such that Father’s parenting time should be
restricted, that Father may continue to exercise parenting time as provided in the
Guidelines, and that, further, Father’s “Wednesday evening parenting time may be
overnight . . . .” Id. at 61.
On December 21, 2010, Father filed a Verified Information in Contempt, with
proposed Rule to Show Cause and Citation for Rule to Show Cause.2 On December 29,
2010, Mother filed a motion to correct errors objecting to the court’s December 9, 2010
order allowing Father to exercise Wednesday overnight parenting time, arguing that it
would be detrimental to the best interests of the children because they “have expressed
their extreme fear and reluctance to spend any additional overnights” with Father. Id. at
63. Then, on January 4, 2011, Mother filed an Emergency Motion for Modification of
2
A copy of this motion is not contained in the record.
5
Midweek Visitation Order stating that the court’s order regarding Wednesday overnights
was in error and noting that Father’s midweek parenting time during the past two years
had been on Tuesday evenings and that the children have been “enrolled in SPLASH – a
program on Wednesday evenings through the North Webster Church of God, and have
been for over two (2) years,” and that Father has stated he will not take the children to the
SPLASH program. Id. at 64.
On January 7, 2011, Father filed his Response to Motion to Correct Errors;
Response to Emergency Motion for Modification of Midweek Visitation Order; and
Motion to Correct Errors. First, Father stated that Mother’s arguments in her motion to
correct errors were the same as at the recent hearing and that her allegations that “the
children have made statements concerning their Father” are not supported by evidence
and specifically noted that the “records of Donald Munn reflect positive statements by
[We.D.] concerning time spent with [F]ather.” Id. at 68. In response to Mother’s
emergency motion for modification, Father argued that he has never said that he would
not take the children to SPLASH, that he never refused to exercise overnight parenting
time on Tuesdays, and that his intent was to comply with the court’s orders. Father
detailed an exchange with Mother as follows:
9. [Father] consistently communicated to [Mother] that if he was
going to exercise overnights on Tuesday nights, there would need to be a
written stipulation, and requested she have her attorney contact his attorney.
[Mother] agreed this would be done, however, no written proposal was
received. A series of emails between the parties marked as “Exhibit A,”
demonstrates [his] attempt to communicate the need to comply with the
Court’s Order until an alternate agreement was put in writing. [Mother]
informed [Father] that his overnight parenting time would be on Tuesdays
and stated that “Its Tuesday night or nothing” in her text message. [Father]
6
was further informed that if he wanted to have any midweek parenting
time, he had better pick up the kids on Tuesday.
10. After [Father] picked up the children on Tuesday, January 4,
2011, at the insistence of [Mother] and her attorney, [Mother’s] attorney
sent a letter to the undersigned stating now that [Father] has picked up the
children, if he wanted to exercise his overnight parenting time we were to
advise accordingly and, if not [Father] was to return the children to
[Mother] not later than 9:00 PM. Attorney Lennox’s letter further stated
[Father] would NOT be permitted to have parenting time on Wednesday,
January 5, 2011. . . .
*****
12. [Mother] did not pick up the minor children from [Father] on
Tuesday evening, January 4, 2011 as is required under the Guidelines for
sharing the transportation burden, and she proceeded to send numerous text
messages to [Father] that by not bringing the children to her home, he was
choosing to exercise his overnight on Tuesday nights. [Mother] also sent
[Father] a text earlier stating her intent to deny [Father] his parenting time
on Wednesday, January 5, 2011, for [Wh.D.’s] birthday. . . .
13. On Wednesday evening, January 5, 2011 at 7:40 PM, while
[Father] was exercising parenting time for [Wh.D.’s] birthday, [Mother]
contacted the Kosciusko County Sheriff’s Department. At 8:15 PM,
[Mother] and her brother . . . came to the door of [Father’s] residence, along
with a Sheriff’s Deputy, and demanded to have the minor children. After
the Deputy reviewed the Court’s Order and advised [Mother] he could not
make [Father] give her the children, [Mother] demanded to see the children.
[Father] kept the children occupied in the lower level of the former marital
residence to prevent their exposure to this situation.
Id. at 69-70. Father’s motion to correct errors also challenged the court’s calculation of
child support and specifically noted bonus income earned by Mother which had not been
taken into account. On January 11, 2011, Mother filed an Information in Contempt
stating that Father was in “indirect contempt of the plain meaning and intent of the
Court’s Orders” when he kept the children overnight on both Tuesday and Wednesday.
Id. at 67. On January 31, 2011, the court entered an agreed order modifying the regular
7
midweek parenting time to Tuesdays instead of Wednesdays and noting that “[t]he parties
will continue to be flexible with [Father’s] midweek parenting time with respect to work
obligations and the childrens’ [sic] activities.” Id. at 78.
On April 20, 2011, the court held a pretrial conference and indicated in its
chronological case summary (“CCS”) that Dr. Ross’s custody evaluation was admitted
into evidence by stipulation of the parties. On August 23, 2011, the court held a final
hearing on the petition for dissolution and, at the outset, admitted the deposition and
counseling notes of Claudia Davis, who was hired by Father in June of 2009 to provide
counseling to Wh.D. because she “was becoming increasingly aggressive,” and at which
Mother, Father, and Wh.D. were present. Id. at 380. Mother testified on cross-
examination that her statements in Dr. Ross’s report that she thought Father should be
limited to supervised visitation were “a little harsh” and she agreed that Father should
participate in the lives of the children and have parenting time. Transcript at 148.
Mother testified that Father has worked from home on multiple occasions when school
was either closed or the children were sick.
Dr. Ross testified that he is a Board Certified Clinical and Forensic Psychologist
and was hired to conduct a custody evaluation in the matter. He testified that, in that
capacity, he conducted interviews of Mother and Father, as well as the children, Mr.
Munn, and Ms. Davis, and he visited the homes and obtained other data. Dr. Ross
testified that he did not find any evidence that the children were afraid to spend time with
or did not want to see Father, and he specifically testified that “the kids have told [him]
that they want to spend more time with their father.” Id. at 317. Dr. Ross testified
8
regarding his custody evaluation, specifically detailing psychological testing he
performed on Mother and Father. He stated that he believed that Mother’s continued
beliefs regarding Father’s purported molestation of We.D. were unfounded and
erroneous, that Mother’s conduct could lead to “parental alienation” of Father, which he
defined as when one parent “may be, either consciously or unconsciously . . . influencing
a child’s view of the other parent in a negative manner and then that having a negative
affect [sic] on the child and then on the targeted parent,” and which could be seen as a
form of child abuse, and that “based upon the premise of who, which parent would be
more likely to foster positive relationships of the other parent,” he would be “more
inclined to nominate” Father as the legal custodian of the children. Id. at 302, 315-316.
Dr. Ross also recommended that Tara Porter be hired as a parenting coordinator with
Level 3 authority to assist the parents. He also recommended a shared physical custody
arrangement which rotated on a weekly basis.
On August 24, 2011, at the conclusion of the final hearing, the court took the
matters under advisement and ordered the parties to submit proposed findings and decree.
On January 20, 2012, the court entered its Decree of Dissolution (the “Dissolution
Decree”) containing thirty-one findings determining all of the pending matters and
awarding joint legal custody and primary physical custody to Mother, with Father
receiving parenting time pursuant to the Guidelines plus a weeknight overnight. The
court also issued a Child Support Obligation Worksheet (“CSOW”) which credited
Father with ninety-eight overnights and stated that Father’s weekly child support
payments were calculated to be $319.
9
On February 16, 2012, the parties filed a proposed Agreed Modification Order
which reduced Father’s child support obligation from $319.00 per week to $288.00 per
week because the court’s previous calculation erroneously included $40 per week in child
care expenses. The next day, Father filed a Motion to Correct Errors challenging certain
findings of the Dissolution Decree, namely, Findings 14, 17, 20, 21, 22, 24, 25, and 30.
The court entered the Agreed Modification Order on February 22, 2012. On March 5,
2012, Mother filed her Statement in Opposition to Motion to Correct Errors. On April
13, 2012, Father filed a Verified Information in Contempt and Motion to Modify Custody
stating that Mother signed We.D. up for soccer without consulting Father and did not list
Father as an emergency contact despite the fact that Father and Mother were awarded
joint legal custody. On May 3, 2012, the court held a hearing and issued an order stating
that Mother should have consulted Father about signing We.D. up for soccer, that “it does
appear that such a discussion would have been an exercise in futility,” that Mother should
also have advised Father about a recent doctor appointment for We.D., that Mother shall
list Father as an emergency contact on all registration information, and that Mother’s
conduct does not rise to the level of contempt. It also took Father’s motion to correct
errors under advisement.3
On June 1, 2012, the court issued its order on Father’s motion to correct errors (the
“June 1, 2012 Order”), which vacated Finding 17,4 clarified Finding 21 by including
3
The order also addressed Mother’s motion, dated April 20, 2012, regarding summer parenting
time and ordered that Father’s summer parenting time was to conclude on August 12, 2012.
4
Finding 17 stated: “The age, although not the gender, of the children support placement with
[Mother], as the children are still of a somewhat tender age, and [Mother] has acted as the primary
physical caregiver throughout the children’s young lives.” Appellant’s Appendix at 30.
10
Finding 21A, and amended Finding 22. Father subsequently appealed. Additional facts
will be provided as needed.
STANDARD OF REVIEW
The trial court apparently entered sua sponte findings of fact and conclusions
thereon. In general, sua sponte findings control only as to the issues they cover, and a
general judgment will control as to the issues upon which there are no findings. Yanoff
v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). When a trial court has made findings of
fact, we apply the following two-tier standard of review: whether the evidence supports
the findings of fact, and whether the findings of fact support the conclusions thereon. Id.Findings will be set aside if they are clearly erroneous. Id. “Findings are clearly
erroneous only when the record contains no facts to support them either directly or by
inference.” Id. A judgment is clearly erroneous if it applies the wrong legal standard to
properly found facts. Id. To determine that a finding or conclusion is clearly erroneous,
our review of the evidence must leave us with the firm conviction that a mistake has been
made. Id. “A general judgment entered with findings will be affirmed if it can be
sustained on any legal theory supported by the evidence.” Id. As we conduct our review,
we presume the trial court followed the law. Rea v. Shrover, 797 N.E.2d 1178, 1181
(Ind. Ct. App. 2003). It is not enough that the evidence might support some other
conclusion, but it must positively require the conclusion contended for by appellant
before there is a basis for reversal. Id.Also, we generally review rulings on motions to correct error for an abuse of
discretion. Ind. Bureau of Motor Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind. Ct. App.
11
2009); Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008),
reh’g denied. An abuse of discretion occurs if the trial court’s decision is against the
logic and effect of the facts and circumstances before it, or the reasonable inferences
drawn therefrom. Lighty v. Lighty, 879 N.E.2d 637, 640 (Ind. Ct. App. 2008), reh’g
denied.
ISSUES AND DISCUSSION
I.
The first issue is whether the court’s findings regarding the custody of Wh.D. and
We.D. were clearly erroneous. A trial court’s custody determination is afforded
considerable deference as it is the trial court that sees the parties, observes their conduct
and demeanor, and hears their testimony. Kondamuri v. Kondamuri, 852 N.E.2d 939,
945-946 (Ind. Ct. App. 2006). Thus, on review, we will not reweigh the evidence, judge
the credibility of witnesses or substitute our judgment for that of the trial court. Id. at
946. We will reverse the trial court’s custody determination only if it is clearly against
the logic and effect of the facts and circumstances or the reasonable inferences drawn
therefrom. Id.Initially, we recite the relevant findings which, as noted below, are challenged by
Father on appeal:
14. The parties have conducted themselves in a less than
reasonable manner as to the best interests of the children, engaging in
gamesmanship, character assassination, and immature tactics to harm the
other parent and diminish the children’s enjoyment of their childhood.
*****
12
19. The children have adjusted very well to their change in
residence from the former marital residence as reflected in their scholastic
achievement and participation in extracurricular activities, and therefore
such change in residence has not affected the children negatively as they
continue to thrive in [Mother’s] custody.
20. The mental health of both parents is questionable, however,
there is nothing in the record which would suggest that either parent is a
danger to the children or incapable of providing an appropriate upbringing.
21. Given the record herein, and the consideration of the
appropriate statutory factors, the Court finds that it is in the best interest of
the minor children that the parties be awarded joint legal custody, with
primary physical custody awarded to [Mother]. [Father] shall have regular
parenting time pursuant to the Parenting Time Guidelines. The midweek
parenting time shall be on Tuesday evening. At his election [Father’s]
midweek parenting time may be an overnight. Regardless of [Father’s]
exercise of midweek overnights, 98 overnights shall be utilized for support
computation purposes.
Appellant’s Appendix at 30-31. Also, as noted above, the court clarified Finding 21 in its
June 1, 2012 Order in Finding 21A as follows:
21A. Dr. Stephen Ross performed a custody evaluation in these
proceedings wherein he recommended that the parties share physical
custody on a 50/50 basis. The Court disagrees with this recommendation
for reason that there was significant evidence that [Father] has become
reclusive since the parties’ separation, limiting the children’s interactions
with other children when they are in his care. Thus, the Court has awarded
primary physical custody to [Mother].
Id. at 26.
Father begins by noting that the Dissolution Decree “essentially adopted the
proposed Decree of [Mother] with minor changes” which warrants “cautious appellate
scrutiny” by this court. Appellant’s Brief at 17 (quoting Carpenter v. Carpenter, 891
N.E.2d 587, 592 (Ind. Ct. App. 2008)). Father argues that one similarity between
Mother’s proposed decree and the court’s Dissolution Decree “is the absence of any
13
mention of the fifty-six page Custody Evaluation agreed upon and ordered by the Court,
or the testimony of the only expert witness at trial, the custody evaluator, Dr. Stephen
Ross,” and Father notes that following the motion to correct errors hearing, the court
added as Finding 21A an acknowledgement of Dr. Ross’s custody evaluation and
specifically its recommendation “that the parties share physical custody on a 50/50 basis”
but that the court disagreed because “there was significant evidence that [Father] has
become reclusive since the parties’ separation, limiting the children’s interactions with
other children when they are in his care.” Id. at 17-19.
Father argues that the only evidence of such reclusiveness in the record was the
testimony of Mother’s friend Pam Walker. Father argues that other friends of Mother
testified that they do not invite the children over to play when they are with Father, but
this “does not support the Trial Court’s conclusion that Father is ‘limiting the children’s
interactions with the other children’” and is “more indicative of how Mother speaks about
Father to her friends in such a way as to influence those friends . . . not [sic] to include
the [] children when they are with their Father . . . .” Id. at 30. Father also argues that he
“refuted these allegations . . . stating, ‘for every Pam Walker I’ve got 4 friends that do not
believe that’ and that any claim that [he] is isolating himself or covering his windows is
ridiculous.” Id. at 31.
Father argues that in addition to the finding regarding his purported reclusiveness,
there were three other findings “upon which the Trial Court appeared to rely in
determining custody” which were not supported by the evidence. Id. at 19. First, Father
points to Finding 14 which states that “[t]he parties have conducted themselves in a less
14
than reasonable manner as to the best interests of the children” and have engaged in
“gamesmanship, character assassination, and immature tactics to harm the other parent,”
and he argues that although the record is replete with evidence of Mother engaging in
such tactics, the use of such tactics which are attributable to Father is not so contained.
Id. Specifically, Father points to instances in the record as indicative of Mother’s
behavior including: (1) Father exercised parenting time on Wednesday in compliance
with the December 2010 order which was an apparent error as the overnight was
supposed to be on Tuesday, and Mother characterized Father’s behavior as “being a
‘game;’” (2) Mother complained that Father did not adequately notify her when he took
the children on a cruise, she filed the Motion to Restrict Parenting Time as a result, and
Mother told Father that “she would get even with him” and “within two days of Father’s
return . . . accused Father of molesting their son;” (3) Mother had law enforcement
personnel run the license plate of a vehicle parked at Father’s home; (4) Mother alleged
that Father molested We.D., took the children to the police station to be interviewed, to
the Department of Child Services, and she took We.D. to a counselor at her church “in an
attempt to substantiate her allegations,” called Father “a ‘frickin’ child molester’ in the
presence of the children,” and continues to harbor such beliefs despite a lack of evidence
of abuse; (6) Mother alleged to day care personnel that Father was drugging the children
with medication when they were not ill; (7) Mother has repeatedly alleged to Claudia
Davis that the children were in “extreme fear” of Father and did not want to visit him; (8)
Mother has denied Father, with two exceptions, his requests to exercise parenting time
beyond the minimum as ordered and has repeatedly stated her belief that his parenting
15
time should be limited and supervised. Id. at 20-23. Father argues that Dr. Ross in his
custody evaluation concluded that Mother’s behaviors “were so egregious, they rose to
the level of parental alienation causing harm to the children,” and Dr. Ross recommended
a 50/50 arrangement in order to preserve Father’s relationship with the children. Id. at
23.
Father next points to Finding 19 which states in part that “[t]he children have
adjusted very well to their change in residence . . . as reflected in their scholastic
achievement and participation in extracurricular activities,” and argues that although he
agrees that his children are intelligent and have performed well in school, “it is difficult
to understand the Trial Court’s conclusion of ‘scholastic achievement’ in preschool
through First Grade as proof that they have adjusted well” and notes that the “children
don’t even receive grades” at such early levels of schooling. Id. at 25. Father argues that
“[t]he record reflects the children were in counseling for most of the pendency of the
dissolution action” and specifically notes that Claudia Davis recommended that Wh.D.
continue in counseling to treat her “Adjustment Disorder with Mixed Disturbance of
Emotions and Conduct.” Id. Father also notes that Dr. Ross recommended that the
children remain in counseling until after the divorce was final.
Finally, Father turns to Finding 20 which states that “[t]he mental health of both
parents is questionable” and argues that although Mother’s mental state is in question,
“the record contains evidence contrary to the finding that Father’s mental health is
questionable.” Id. Specifically, Father notes that Dr. Ross performed psychological
testing on both parents and “on all but one of the tests administered to Mother,” the
16
results were invalid “due to the manner in which Mother answered.” Id. at 28. Father
argues that, “[b]y contrast, all of [his] psychological testing yielded valid results and
functioning within normal limits, with the exception of an elevated score on the Spousal
scale for the Parental Stress Index test reflecting difficulty interacting with Mother.” Id.
Mother argues that substantial evidence appears in the record to support the trial
court’s findings related to custody, listed in the Dissolution Decree and order on Father’s
motion to correct error as Findings 14-22.5 Mother notes that her home is appropriate for
children, and the court heard testimony by witnesses “including the childrens’ [sic] pre-
school teacher, [Wh.D.’s] first grade teacher, neighbors, friends, and family members” to
the effect that Mother and the children enjoy a “very positive and healthy relationship”
and that “the children are well-adjusted and thriving, and doing remarkably well
considering the issues between the parties.” Appellee’s Brief at 12. Mother asserts that
the evidence showed that the children have done well in school and appear happy,
healthy, and well behaved. Mother contends that her extended family and her significant
other have a good relationship and are positive influences on the children.
Mother maintains that evidence was presented “that it would be difficult to co-
parent with [Father] because he is a very controlling person.” Id. at 13. Mother notes,
however, that she “promised the court that she would attempt to consult with [Father]
better in the future” regarding extracurricular activity decisions, among other things and
noted the importance that “he remain active and important in their lives.” Id. at 14.
Mother argues that, to the extent Father alleges that she has not generally agreed to
5
As Mother correctly observes in her brief, the court vacated Finding 17 and it does not bear on
the issues on appeal.
17
parenting time above what is allowed under the guidelines, such complaints “can be seen
as further attempts on his part to impose his control over the custodial situation, to invoke
his will, and to effect a defacto [sic] change in custody.” Id. at 14-15.
Mother further argues that she is “concerned that [Father] is a homosexual and/or
has a deviate sexual lifestyle,” noting his arrest “for solicitation/public indecency,” and
that “although the charges were dismissed, it does not mean the incident did not take
place or that legitimate concerns do not surround and arise from the incident.” Id. at 15.
Mother maintains that We.D.’s “allegations of sexual molestation by [Father] are a
concern.” Id.
Mother notes that the children’s counselor, Claudia Davis, indicated in her
deposition that it was in their best interests that Mother be awarded custody. Mother
argues that to the extent Father asserts that the court disregarded Dr. Ross’s custody
evaluation and recommendations therein, “Indiana law is clear . . . that the fact-finder in a
dissolution action is not required to accept the opinions of experts regarding child
custody.” Id. at 15-16 (citing Clark v. Madden, 725 N.E.2d 100 (Ind. Ct. App. 2000)).
On that score, Mother asserts that Dr. Ross in his testimony also “informed the Court . . .
that he saw nothing in his evaluation to indicate that [Mother] could not be an adequate
parent, nor that she could not meet the physical needs of the children.” Id. at 16. Mother
contends that Father’s arguments regarding custody merely invite this court to reassess
witness credibility and reweigh evidence.
Father notes in his reply brief regarding Mother’s “panoply of accusations from
homosexuality, deviant sexual lifestyle, and child molestation,” that “[n]ot only were
18
misdemeanor charges against Father dismissed, they were expunged and the officer
involved was terminated from employment” and that “none of the mental health
professionals . . . found any evidence to support Mother’s multiple allegations . . . .”
Appellant’s Reply Brief at 4-5. Father argues that Mother’s statements “concerning
‘control issues’ are only Mother’s opinions and not supported by the evidence.” Id. at 5.
Father asserts that Mother’s statement that Claudia Davis in her deposition recommended
that the children remain with Mother was “untrue” and that she merely “rendered her,
self-described, ‘personal opinion’ [sic] about Dr. Ross’s recommendation for physical
custody” which was “general and not specific to this case” that “preschool and early
grade school children fair [sic] better [if] mother is the primary caregiver . . . .” Id. at 7.
After reviewing the arguments of the parties and the evidence presented, we
cannot say that the court’s custody determination was clearly erroneous. At the outset,
we note that Father does not challenge Findings 15 and 18, which relate to custody.
Specifically, Finding 18 states that “[t]he children have strong relationships with
[Mother’s] extended family, such that it is in the best interests of the children that those
relationships continue to be fostered and that can best be served by placement with
[Mother].” Appellant’s Appendix at 30. Also, Finding 15 states that both parents “are
capable caregivers to the children, are capable of providing the material necessities of the
children and do not intentionally seek to do harm to the children.” Id.
To the extent that Father challenges the court’s decision to deviate from Dr. Ross’s
recommendation in his custody evaluation and award Mother primary physical custody,
we note that as this court has observed, “the fact-finder is not required to accept the
19
opinions of experts regarding custody.” Clark, 725 N.E.2d at 109 (citing Periquet-Febres
v. Febres, 659 N.E.2d 602, 607 (Ind. Ct. App. 1995), trans. denied). The court found that
Father has become reclusive which limits the children’s ability to interact with others
when they are in his care, and we observe that our standard of review dictates that the
trial court was in the best position to judge the credibility of the witnesses called by the
parties. We are in a poor position on appeal to examine such testimony. At trial, the
court heard testimony from multiple members of the community including Pam Walker,
who testified that the children were uncomfortable interacting with her when they were
with Father, that she does not see him very much, and that the shades “always seem to be
drawn and if we’d come around the garage would pop down.” Transcript at 67. Further,
we note that Father’s attempt on appeal to refute this testimony was only his own
testimony at the hearing that “for every Pam Walker I’ve got 4 friends that do not believe
that,” and he did not produce neighbors or parents of the children’s friends to so testify.
Appellant’s Brief at 31 (quoting Transcript at 246).
We turn next to Finding 14, in which the court found that both parties have
engaged in “gamesmanship, character assassination, and immature tactics to harm the
other parent” and have conducted themselves in a manner which is not in the best
interests of the children. We note that, as detailed by Father in his arguments, although
the record was certainly rife with examples of such conduct attributable to Mother, Father
is not correct that the record is entirely devoid of examples of him engaging in similar
conduct. Indeed, we note that the court did not specifically find that the parties were
equally to blame in this regard. Regarding such conduct attributable to Father, we
20
observe that Mother indicated at trial that Father made a report to Child Protective
Services regarding Mother’s decision to allow the children to go tubing on Wawasee
Lake while wearing life jackets. Mother also testified that Father contacted the DNR
regarding an incident in which Mother allowed We.D. to use a child-sized snowmobile
under the supervision of her brother.
Further, we note that a specific incident during early January of 2011, in which
Father and Mother had a disagreement about how to handle Father’s overnight parenting
time in light of the court’s December 9, 2010 order which stated that Father was allowed
to exercise parenting time on Wednesday evenings and may keep the children overnight,
is emblematic of Finding 14. As detailed by Father’s January 7, 2011 filing, Father
picked up the children on Tuesday, January 4, 2011, based upon communications from
Mother and Mother’s counsel informing Father that he should exercise his parenting time
on Tuesday rather than Wednesday evening because the children attend SPLASH on
Wednesday evenings. Mother told Father via text message that his decision to keep the
children on Tuesday evening was being interpreted by her as an understanding that the
Tuesday night parenting time was being exercised in lieu of Wednesday evening, which
the parties seemed to agree was erroneously stated in the December 9, 2010 order.
However, on Wednesday Father ultimately relied on the court’s order when challenged
by Mother and the Sheriff’s deputy and kept the children for a second, consecutive night.
To be clear, we find it unfortunate that Mother resorted to bringing a Sheriff’s
Deputy to Father’s house on Wednesday evening with the intention of removing the
children from Father’s residence. This does not mean, however, that Father was
21
blameless for this series of events, and in any event we cannot say that the court’s
Finding 14 was clearly erroneous.
Next, to the extent that Father challenges Finding 19 that the children have
performed well in school and participate in extracurricular activities, and that this
demonstrates that they have adjusted to their change in residence, we observe that Father
does not argue that the evidence relied upon by the court was misstated. Rather, Father
argues that the children’s level of schooling is too early in order to properly bear on
whether they have adjusted to the residential change.
The record reveals that Donna Searer, who taught both children in preschool,
testified that both children performed well in their math and reading exercises. Searer
noted that Wh.D. was very shy when she first arrived in preschool but by the time she
finished had become very talkative. Jill Shock, who is Wh.D.’s first grade teacher,
testified that Wh.D. is “very bright” and academically “very sound,” noting that “she’s
above her peers and so she was reading books in 3rd, 4th, and 5th grade levels” and was
“able to complete her work quickly so she was able to . . . advance more quickly than the
other students.” Transcript at 10. Shock testified that “[s]ocially, [Wh.D.] is a friend to
everybody and well liked by everyone.” Id. Shock testified that she was “very proud” of
Wh.D. when she “tried out for the all school play” and “got a speaking part and [] did an
awesome job.” Id. Jody Boyer, whose husband is a Senior Pastor at the church Mother
attends with the children, testified that the children enjoy the church activities and
interact with the other children during such activities. Nancy Newcomer, who is
Mother’s mother, testified that Wh.D. has “transformed with relationships with other
22
children,” that she has “opened up,” and that the children are happy and healthy. Id. at
82-83.
To the extent that Father argues that Claudia Davis recommended that Wh.D.
remain in counseling and that this contradicts Finding 19, we observe that Davis testified
in her deposition that “[t]he situation with [Wh.D.] acting out . . . was remedied within a
few months. . . . Mother followed through on my recommendations . . . . And [Wh.D.]
loved that and responded very positively. And within . . . three, four months . . .
[Wh.D.’s] behavior problems were pretty much eliminated.” Appellant’s Appendix at
382. Davis also testified that, when Wh.D.’s treatment was ended by both parents,
Mother felt that treatment had finished and Father wanted therapy to stop because he
believed that continuing therapy might harm her and would subject her to scrutiny.
Evidence, including the testimony of Wh.D.’s first grade teacher and the preschool
teacher of both children, was presented to support the court’s finding that the children
have adjusted to the change in residence over the past couple of years. We cannot say
that the court’s finding in this regard is clearly erroneous.
Father also challenges Finding 20 of the Dissolution Decree which finds that both
parents’ mental health was in question but also that “there is nothing in the record which
would suggest that either parent is a danger to the children or incapable of providing an
appropriate upbringing.” Id. at 30. Thus, it is unclear to what extent the court relied
upon this finding in rendering its custody order. Moreover, even if we were to agree with
Father that the evidence does not support either directly or by inference that his mental
health is in question, we do not believe that this would require reversal in this instance
23
due to the court’s caveat that Mother’s mental health does not suggest that she is
incapable of providing an appropriate upbringing.
Based upon the evidence in the record and the court’s findings, we conclude that
the court’s custody determination that Mother be awarded primary physical custody, that
Father be awarded certain parenting time, and that the parents share legal custody, was
not clearly erroneous. See Owensby v. Lepper, 666 N.E.2d 1251, 1257 (Ind. Ct. App.
1996) (holding that the court’s findings were sufficient to support its custody decision),
reh’g denied.
II.
The next issue is whether the court’s child support calculation was clearly
erroneous. A trial court’s calculation of a child support obligation is presumptively valid
and will be reversed only if it is clearly erroneous or contrary to law. Young v. Young,
891 N.E.2d 1045, 1047 (Ind. 2008). Again, “[a] decision is clearly erroneous if it is
clearly against the logic and effect of the facts and circumstances before the trial court.”
Id. In conducting our review, we will not reweigh the evidence and will consider only
the evidence most favorable to the judgment. Saalfrank v. Saalfrank, 899 N.E.2d 671,
674 (Ind. Ct. App. 2008).
Father argues that the court abused its discretion when it: (A) calculated Father’s
parenting time credit at ninety-eight overnights; and (B) failed to account for Mother’s
bonus income in its final child support calculation. We address each of Father’s
arguments separately.6
6
We note that Mother argues in her brief that the issue of support is “moot” because the parties
24
A. Parenting Time Credit
As noted above, the court in its Dissolution Decree stated that Father was
responsible for $319 per week in child support, and this figure was modified to $288 per
week after an Agreed Modification Order because the CSOW erroneously included $40
per week for child care expenses. Both the original CSOW and the modified CSOW
gave Father credit for ninety-eight overnights, which equated to a weekly credit of
$58.89.
We may not reverse a parenting time credit determination unless the trial court
manifestly abuses its discretion. Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 727
(Ind. Ct. App. 2009). “No abuse of discretion occurs if there is a rational basis in the
entered into the Agreed Modification Order and agreed that Father’s support obligation should be $288
per week and adopted the CSOW which noted that ninety-eight overnights would be used to determine
Father’s parenting time credit. Appellee’s Brief at 20. Mother argues that this agreement is binding and
resolves any issues relating to support. Father responds in his reply brief that following the entry of the
Dissolution Decree, there were certain errors that the parties wanted to correct as soon as possible
including financial accounts awarded to Father and the court’s child support calculations related to
daycare expenses which were not being incurred. Father argues that “[r]ather than allow[ing] this error to
continue and accrue, counsel for the parties agreed to make those corrections by way of an Agreed Order”
and this “did not waive Father’s right to request a correction of or appeal other matters he believed to be
in error.” Appellant’s Reply Brief at 9.
Mother does not cite to authority for the proposition that where the parties to a decree of
dissolution file an agreed modification order to correct certain, limited aspects of the order, the parties
forego or waive any right to challenge other aspects of the decree on appeal. The Agreed Modification
Order did not address the issues Father raises on appeal, namely, that his parenting time credit was
incorrectly calculated and that the court should have included Mother’s bonus income in calculating what
percentage of Father’s bonus income he should pay in child support. We agree with Father that the
Agreed Modification Order did not deprive him of his right to appeal the court’s child support order in the
Dissolution Decree. Cf. Beaman v. Beaman, 844 N.E.2d 525, 533 (Ind. Ct. App. 2006) (noting that
wife’s argument that husband “invited any claimed error with respect to the settlement agreement by
signing it and submitting [it] to the court as part of the legal separation action” was erroneous because
“[a]cceptance of such an argument essentially would preclude any party to a contract from later claiming
it was invalid, vague, or ambiguous in any respect” and, additionally, that husband “never acquiesced in
the trial court adopting the settlement agreement wholesale as part of the final dissolution decree”).
25
record supporting the trial court’s determination.” Saalfrank, 899 N.E.2d at 681 (citation
and quotation marks omitted).
Father argues that since the Agreed Order on January 31, 2011, which resolved the
issue of his ability to have the children overnight on Tuesdays, he has consistently had
the children overnight and “has never missed any parenting time in three years,” and
Mother acknowledged that Father exercises his midweek overnight parenting time.
Appellant’s Brief at 32. Thus, Father contends, the evidence was undisputed that he
exercised all of his parenting time under the guidelines, or ninety-eight overnights, plus
an additional thirty-six overnights for the regular midweek parenting time (after adjusting
for summer break, spring break, thanksgiving, and winter break, or fourteen weeks), and
that his “actual overnight parenting time with the children each year amounts to
approximately 134 overnights.” Id. at 33. Father also notes that Mother submitted a
CSOW proposing that Father be credited for 118 overnights,7 and Father proposed a
parenting time credit of 182 overnights which is consistent with a 50/50 parenting time
split.
Mother argues that the commentary to Ind. Child Support Guideline 6 “provides
that if general parenting time is exercised the number of overnights should be 98.”
Appellee’s Brief at 19. Mother argues that the court indicated that Father’s “weekday
parenting time could be an overnight at his discretion” and that “98 overnights would be
used no matter whether [he] exercised overnight parenting time or not.” Id. at 19-20.
7
Father notes in his brief that it is unclear how Mother arrived at 118 overnights.
26
Mother argues that the court indicated as such “because of the permissive and speculative
nature of this provision . . . .” Id. at 20.
Father argues in his reply brief that “ALL parenting time is ‘permissive’ and
discretionary,” and “parenting time credit is based upon the parenting time actually
exercised or expected to be exercised.” Appellant’s Reply Brief at 9-10. Father argues
that there is no dispute that he exercises all of his parenting time that Mother allows.
Father argues that here “the Court did, in fact, deviate from the parenting time actually
exercised by and awarded to Father, and the Court did not state or provide a written
explanation for doing so as required” by the Child Support Guidelines. Id. at 10.
Ind. Child Support Guideline 6 provides that “[a] credit should be awarded for the
number of overnights each year that the child(ren) spend with the noncustodial parent.”
See also Sandlin v. Sandlin, 972 N.E.2d 371, 377 (Ind. Ct. App. 2012) (“Under Child
Support Guideline 6, a non-custodial parent is afforded ‘credit’ to his or her child support
obligation for hosting his or her children overnight. The credit is based upon the number
of overnights a child or children spends with the non-custodial parent.”) (citing Grant v.
Hager, 868 N.E.2d 801, 802 (Ind. 2007)). “If the court determines it is necessary to
deviate from the parenting time credit, it shall state its reasons in the order.” Sandlin, 972
N.E.2d at 377 (quoting Ind. Child Support Guideline 6, Commentary).
The Commentary to the Child Support Guideline 6 provides, “The computation of
the parenting time credit will require a determination of the annual number of overnights
of parenting time exercised by the parent who is to pay child support, the use of the
standard Child Support Obligation Worksheet, a Parenting Time Table, and a Parenting
27
Time Credit Worksheet.” The Commentary also states that “[a]s parenting time
increases, a proportionally larger increase in the credit will occur.” Ind. Child Support
Guideline 6, Commentary. Also, “[t]he computation of the parenting time credit will
require a determination of the annual number of overnights of parenting time exercised
by the parent who is to pay child support, the use of the standard Child Support
Obligation Worksheet, a Parenting Time Table, and a Parenting Time Credit Worksheet.”
Id. Importantly, the Commentary specifically instructs that “[i]f the parents are using the
Parenting Time Guidelines without extending the weeknight period into an overnight, the
noncustodial parent will be exercising approximately 98 overnights.” Id. (emphasis
added).
Here, the court awarded Father parenting time on Tuesday evenings, and it
extended this parenting time to include having the children overnight. As Father notes,
he is diligent about exercising his parenting time and having the children overnight, and
Mother does not dispute this fact. Parenting time credit is based upon the number of
nights the children spend with the non-custodial parent. In this instance, the court did not
award parenting time credit which accurately reflects the number of overnights the
children spend at Father’s residence as reflected by the record. Accordingly, we
conclude that the court’s parenting time credit award was clearly erroneous, and we
remand for further proceedings to amend the CSOW and support order to reflect the
number of annual overnights the children spend with Father.
28
B. Mother’s Bonus Income
Father argues that Mother indicated at trial that she receives annual bonus income,
and she proposed that “for purposes of calculating child support on bonus income, Father
pay 14% of his bonus income less 14% of her bonus income.” Appellant’s Brief at 34.
Father argues that the court at trial “appeared to acknowledge [that] Mother’s bonus
should be included,” but it failed to do so in the Dissolution Decree. Id. Father notes that
Mother’s proposed decree did not mention her bonus income, and he “can only assume it
was the Trial Court’s adoption of the majority of Mother’s proposed Decree that led to
the error . . . .” Id. at 35. Father also argues that the court erred in calculating the
percentage of his bonus pay which should be paid in child support, noting that the court
explained that in order to calculate the percentage, it divided Father’s child support
obligation of $319, found on Line 8, by his gross income of $2,319.77, listed on Line 1,
and Father notes that the correct percentage based upon that calculation is 13.7% rather
than 15% as listed by the court in its CSOW. Father also notes that the parties
subsequently filed and the court entered an Agreed Modification Order based upon the
fact that the court factored in daycare expenses which did not exist and which reduced his
weekly obligation to $288, that if the court’s formula were applied to the Child Support
Obligation Worksheet following the Agreed Order the percentage of his bonus pay would
be 12.4%, and that this would still be incorrect because it does not factor in Mother’s
bonus pay or the correct amount of parenting time credit of approximately 134
overnights.
29
Mother argues that the commentary to Ind. Child Support Guideline 3A states that
“[o]ne method of treating irregular income is to determine the ratio of the basic child
support obligation (line 4 of the worksheet) to the combined weekly adjusted income
(line 3 of the worksheet)” and that this calculation would yield a percentage of 15.2% of
Father’s gross irregular income rather than the 14% ordered by the court. Appellee’s
Brief at 20 (quoting Ind. Child Support Guideline 3A, Commentary). Mother argues that
the court did not commit error when it omitted her “de minimus $975.00 per year bonus
income from these calculations.” Id.
Ind. Child Support Guideline 3A addresses the definition of weekly gross income
for the purposes of Line 1 of a CSOW and notes that “[w]eekly gross income of each
parent includes income from any source, except as excluded below, and includes, but is
not limited to, income from salaries, wages, commissions, bonuses . . . .” (Emphasis
added). Each parent has an income amount entered on Line 1. The Commentary to
Guideline 3A provides further explanation as follows:
2. Determination of Weekly Gross Income. Weekly Gross Income
is the starting point in determining the child support obligation, and it must
be calculated for both parents. . . .
The Child Support Obligation Worksheet does not include space to
calculate Weekly Gross Income. It must be calculated separately and the
result entered on the worksheet.
In calculating Weekly Gross Income, it is helpful to begin with total
income from all sources. This figure may not be the same as gross income
for tax purposes. . . .
*****
b. Overtime, Commissions, Bonuses and Other Forms of
Irregular Income. There are numerous forms of income that are irregular
30
or nonguaranteed, which cause difficulty in accurately determining the
gross income of a party. Overtime, commissions, bonuses, periodic
partnership distributions, voluntary extra work and extra hours worked by a
professional are all illustrations, but far from an all-inclusive list, of such
items. Each is includable in the total income approach taken by the
Guidelines, but each is also very fact sensitive.
. . . . Care should be taken to set support based on dependable
income, while at the same time providing children with the support to
which they are entitled.
When the court determines that it is not appropriate to include
irregular income in the determination of the child support obligation, the
court should express its reasons. . . .
*****
Judges and practitioners should be innovative in finding ways to
include income that would have benefited the family had it remained intact,
but be receptive to deviations where reasons justify them. The foregoing
discussion should not be interpreted to exclude consideration of irregular
income of the custodial parent.
(Emphases added).8
8
The Commentary to Ind. Child Support Guideline 3A also provides the following instruction of
how irregular income may be included in a child support calculation:
. . . . When the court determines that it is appropriate to include irregular income,
an equitable method of treating such income may be to require the obligor to pay a fixed
percentage of overtime, bonuses, etc., in child support on a periodic but predetermined
basis (weekly, bi‑weekly, monthly, quarterly) rather than by the process of determining
the average of the irregular income by past history and including it in the obligor’s gross
income calculation.
One method of treating irregular income is to determine the ratio of the basic
child support obligation (line 4 of the worksheet) to the combined weekly adjusted
income (line 3 of the worksheet) and apply this ratio to the irregular income during a
fixed period. For example, if the basic obligation was $110.00 and the combined income
was $650.00, the ratio would be .169 ($110.00 / $650.00). The order of the court would
then require the obligor to make a lump sum payment of .169 of the obligor’s irregular
income received during the fixed period.
The use of this ratio will not result in an exact calculation of support paid on a
weekly basis. It will result in an overstatement of the additional support due, and
particularly so when average irregular income exceeds $250.00 per week or exceeds 75%
31
Here, it is undisputed that Mother received bonus income. Indeed, at trial Mother
indicated on direct examination that she was requesting that Father “be required to pay
[her] 15% of his annual bonus minus 15% of [her] extra income.” Transcript at 96.
Mother’s counsel then specifically asked, “[a]nd you acknowledge that your bonus
should be tacked in there as well, is that correct,” and Mother responded: “Absolutely,
that would only be fair.” Id. at 97. As Father highlights, the court appeared to accept that
Mother did receive bonus income, noting that “[w]ell I assume the award would be, how
to treat, if it’s an award it’s, if it’s compensation over and above her salary then it, it’s, it
would be, I guess bonus income, just like his . . . .” Id. at 275. The court did not explain
in its Dissolution Decree, however, why it did not account for Mother’s bonus income on
its CSOW to determine Father’s final child support obligation. Based upon the evidence
and the Commentary to the Ind. Child Support Guidelines, we conclude that the court
clearly erred in failing to address Mother’s bonus income, and we remand with
instructions that the court account for such income.9
III.
The final issue is whether the court abused its discretion in appointing, as amended
in its June 1, 2012 Order, a Parenting Time Coordinator. In Finding 22 of the Dissolution
Decree, the court found that “[t]he parties, and the children, would benefit from the
appointment of a Level IV parenting time coordinator. Tara Porter is appointed as the
of the regular adjusted Weekly Gross Income. In these latter cases the obligor may seek
to have the irregular income calculation redetermined by the court.
9
We need not address the parties’ arguments regarding percentages of bonus pay owed because
the trial court on remand will address such arguments after calculating Father’s correct parenting time
credit.
32
coordinator. [Mother] shall pay 23% and [Father] shall pay 77% of Ms. Porter’s fees.”
Appellant’s Appendix at 31. On February 17, 2012, in Father’s motion to correct errors,
Father stated that Finding 22 “is an error in that there is no such thing as a ‘parenting time
coordinator,’ rather there are Parenting Coordinators. Further, there is no such thing as
Level IV services for Parenting Coordinators. There are only levels I, II and III.” Id. at
117. In the June 1, 2012 order on Fathers’ motion to correct errors, the court amended
Finding 22 to read: “The parties and the children would benefit from the appointment of a
Parenting Time Coordinator. Tara Porter is appointed as the coordinator. [Mother] shall
pay 23% and [Father] shall pay 77% of the uninsured portion of the coordinator’s fees.”
Id. at 26.
On appeal, Father argues that “[t]he Trial Court’s Order on Motion to Correct
Errors eliminated the Level IV authority for the Parenting Coordinator, but did not
determine a proper level of authority or issue a separate order concerning the
appointment of the Parenting Coordinator to give effect to it’s [sic] order.” Appellant’s
Brief at 37. Father notes that, as a result, “the parties and the minor children have been
without the benefit of a Parenting Coordinator.” Id. Mother states in her brief that she
“agrees that the Trial Court should issue a separate order appointing a parenting time
coordinator and giving this coordinator Level III authority. [She] has indicated to
[Father] her willingness to enter into an agreed order in this regard and remains ready to
do so.” Appellee’s Brief at 21.
We observe that generally in Indiana the use of and level of authority acceded to a
parenting coordinator is determined based upon an agreement of the parties. See Gomez
33
v. Gomez, 887 N.E.2d 977, 979 (Ind. Ct. App. 2008) (noting that the mother and father
“agreed to submit to mediation and have a parenting time coordinator appointed to make
a parenting time recommendation due to their inability to work together cooperatively”);
Bacon v. Bacon, 877 N.E.2d 801, 802-803 (Ind. Ct. App. 2007) (noting that a parenting
coordinator was appointed as part of the decree of dissolution and the court subsequently
“requested that the parties submit a stipulation specifying the parenting coordinator’s
duties within thirty days”), reh’g denied, trans. denied.10 Recognizing that both parties
agree that a parenting coordinator would be in the best interests of Wh.D. and We.D., and
observing that Mother stipulates that she agrees to a parenting coordinator with Level III
authority, we remand for the court to issue a separate order appointing a parenting
coordinator which specifies the parenting coordinator’s level of authority.11
10
We note that this court has previously held that even in instances where neither party requested
or agreed to the appointment of a parenting coordinator, based upon the spirit and intent of the Indiana
Parenting Time Guidelines, trial courts may appoint a parenting coordinator in situations where the
parents experience ongoing communication difficulties in making decisions for the best interest of the
children. See In re Paternity of C.H., 936 N.E.2d 1270, 1274 (Ind. Ct. App. 2010) (holding that the trial
court did not err in appointing the parenting coordinator), reh’g denied, trans. denied.
We observe that the Indiana Courts website contains a draft version of the Indiana Parenting
Time Guidelines (“Draft Guidelines”), dated January 2012, which includes an amended Section IV, titled
“Parenting Coordination,” and which contains subsections A-I detailing proposed qualifications, terms of
service, and the role and authority of a parenting coordinator, as well as detailing circumstances in which
a court should appoint a parenting coordinator over the objection of the parties, among other things. See
Indiana Rules of Court, Draft Indiana Parenting Time Guidelines (Jan. 2012),
http://www.in.gov/judiciary/files/rules-prop-ptg-2012.pdf. Appendix A of the Draft Guidelines also
contains a model order for appointing a parenting coordinator. See Indiana Rules of Court, Draft Indiana
Parenting Time Guidelines, Appendix A (Jan. 2012), http://www.in.gov/judiciary/files/rules-prop-ptg-
2012-appendixa.pdf. On January 4, 2013, the Indiana Supreme Court issued an Amended Order
Amending Indiana Parenting Time Guidelines which did not include the draft section on parenting
coordination. See Amended Order Amending Indiana Parenting Time Guidelines, No. 94S00-1205-MS-
275 (Ind. Jan 4, 2013), http://www.in.gov/judiciary/files/order-rules-2013-0107-parenting.pdf.
11
Finally, to the extent that Father requests that the trial court designate a level of authority for
the parenting coordinator and that Mother stipulates that Level III authority would be appropriate, we
observe that the Families Moving Forward, Inc., “an interdisciplinary organization of attorneys, mental
health providers, accountants, and other professionals committed to improving the process of family
34
CONCLUSION
For the foregoing reasons, we affirm the court’s custody order, reverse the court’s
order on support and regarding a parenting coordinator, and remand for proceedings
consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
BAILEY, J., and VAIDIK, J., concur.
transition in Indiana,” by their Parenting Coordination Committee, has prepared a report titled “Indiana
Parenting Coordination Guide” which states the following:
Roles of the Parenting Coordinator:
There are three primary roles the Court may order for the parenting coordinator. For ease
of reference, these roles will be designated Level 1, Level 2, and Level 3.
Level 1: In Level 1, the parenting coordinator is not empowered to resolve impasses
between the parents by means of a “binding” recommendation. . . .
*****
Level 2: At this level, the PC’s role includes everything in Level 1, plus a certain
measure of decision-making authority to resolve impasses by means of a “binding”
recommendation. . . .
*****
Level 3: Here the PC’s role and authority includes everything in Level 2, plus the PC
may, as specified by the Court order, select and manage a treatment team to attend to the
needs of the parents and the children. This involves the selection of medical and/or
mental health professionals to provide necessary treatment services. . . .
Families Moving Forward, Inc., Indiana Parenting Coordination Guide, at 3-5 (2005),
http://indianapsychology.org/pdf/parent_coordination_guide_2005.pdf (internal citation omitted).
35