MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Sep 12 2019, 10:03 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cassandra Hine                                           Brian M. Smith
San Pierre, Indiana                                      Merrillville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dennis Challoner,                                        September 12, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-DR-1241
        v.                                               Appeal from the Porter Superior
                                                         Court
Wendy Challoner,                                         The Honorable Roger Bradford,
Appellee-Petitioner.                                     Judge
                                                         The Honorable Mary DeBoer,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         64D01-1601-DR-694



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019             Page 1 of 26
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, Dennis Challoner (Father), appeals the trial court’s

      Decree of Dissolution of Marriage (Decree) dissolving his marriage to Appellee-

      Petitioner, Wendy Challoner (Mother).


[2]   We affirm.


                                                   ISSUES
[3]   Father presents three issue on appeal, which we restate as:


          (1) Whether the trial court abused its discretion by imputing income to

              Father;


          (2) Whether the trial court abused its discretion by not holding Mother in

              contempt for violating a parenting time order; and


          (3) Whether the trial court abused its discretion in distributing the marital

              estate.


                      FACTS AND PROCEDURAL HISTORY
[4]   Father and Mother married on February 23, 2013. One child, J.C. (the Child),

      was born during the marriage. At the time, the parties were residents of Porter

      County, Indiana. On January 27, 2016, Mother filed a verified petition for

      dissolution of marriage and requested a hearing on provisional orders. An

      agreed provisional order (Provisional Order) was entered on March 28, 2016

      wherein, among other things, Mother was granted temporary sole legal and

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 2 of 26
      physical custody of the Child; Father was to exercise parenting time every other

      weekend from Friday 4:30 p.m. to Sunday 6:00 p.m.; and Father was ordered

      to pay child support of $130 per week.


[5]   Father has historically had income tax liabilities with the Internal Revenue

      Service (IRS) and Indiana Department of Revenue (IDR). Between 2013 and

      2014, Father had accrued an outstanding tax liability of $10,000.63. On the

      other hand, Mother has no outstanding tax liabilities, and she timely files her

      federal and state income tax returns. In 2013, 2014, and 2015, Mother timely

      filed her federal and state tax returns. In all those filings, Mother designated

      her status as married filing separately, and she received tax refunds from those

      filings, which she used to pay off marital obligations.


[6]   In the Spring of 2016, without Mother’s knowledge, Father filed amended tax

      returns for 2013 and 2014. In that amendment, Father indicated that he was

      filing as married filing jointly. As a result of that amendment, for the 2013 tax

      year, the IRS issued a tax refund of $6,637, and IDR issued a refund of $555.48.

      The “State of Indiana intercepted the tax refund and applied it to Father’s

      outstanding child support” for his two children from his previous marriage, and

      to Father’s other “outstanding tax obligations owed to the State of Indiana.”

      (Appellant’s App. Vol. II, p. 26). After paying those obligations, the parties

      were provided with the “remaining $1,124.37 of the refund.” (Appellant’s App.

      Vol. II, p. 35). When Mother became aware of Father’s tax filing, she

      contacted the IRS and IDR and complained that she had not consented to the

      amended tax return filed by Father.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 3 of 26
[7]   On May 26, 2016, Mother filed a Motion to Set Hearing on Tax Refunds.

      Following a hearing on June 8, 2016, the trial court issued an order on July 18,

      2016, reserving its ruling on issues pertaining to the parties’ tax returns until the

      final hearing, however, the trial court ordered the balance of the tax refund, the

      sum of $1,124.37, to be deposited into Mother’s counsel’s trust account. The

      trial court also ordered among other things, that Father should not have any

      contact with Mother during the pendency of the dissolution proceedings, and

      all parenting time exchanges should occur at the Porter County Sherriff’s

      Department. Shortly after the hearing, and before the entry of the no-contact

      order, Father hacked into Mother’s email account, and posing as Mother,

      attempted to “fire” Mother’s divorce attorney. (Appellant’s App. Vol. II, p.

      42). Father then sent a series of harassing text messages to Mother between

      July 1 and July 6, 2016. On August 22, 2016, Mother filed a motion for

      temporary and permanent restraining order (TRO), alleging that Father had

      violated the no-contact order since Father had on numerous occasions harassed

      her through text messages.


[8]   On October 25, 2016, the trial court appointed Scott Wagenblast to serve as the

      Guardian Ad Litem (GAL Wagenblast) and to investigate and file

      recommendations with the court regarding custody and parenting time. On

      October 31, 2016, pursuant to another order, the parties stipulated that GAL

      Wagenblast would have the authority to act in the following manner: (1)

      recommend that one or both parties undergo co-parenting classes (2)

      recommend that one or both parties perform anger management counseling and


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 4 of 26
       (3) recommend either party undergo a psychological evaluation to determine

       fitness for parenting. The parties also agreed to comply with any of GAL

       Wagenblast’s recommendations. Further, exchanges for purposes of parenting

       time were moved to Family House in Valparaiso, Indiana.


[9]    On the same day, and by a separate order, the trial court entered an Order of

       Permanent Injunction in which Father was enjoined from threatening or

       harassing Mother, entering the marital home or Mother’s place of work,

       contacting Mother’s family, slandering Mother, or hacking into Mother’s email

       account. On December 2, 2016, GAL Wagenblast filed his interim report with

       the trial court and recommended, among other things, that the parties undergo

       psychological evaluations.


[10]   On May 10, 2017, the parties agreed to participate in mediation, but during a

       four-hour mediation session that occurred in July 2017, Father “stormed out.”

       (Tr. Vol. III, p. 81). In that same month, Father was evicted from his home.

       Father’s mother either bought or gave Father some money to buy a large

       camper which he was able to place in the backyard of a friend’s home. Father

       failed to disclose his new location to Mother, and that prompted Mother to file

       a Verified Petition to Modify Parenting Time, where Mother requested Father’s

       parenting time to be supervised since Father had refused to disclose his new

       address. Around this time, the Department of Child Services (DCS) opened a

       case against Father alleging that there were bedbugs in Father’s home. In late

       June 2017, DCS closed its case after determining that the allegations were

       unsubstantiated. Mother’s attorney sent interrogatories to Father’s attorney to

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 5 of 26
       flesh out the details of the DCS’s investigation and facts pertaining to Father’s

       eviction from his apartment. Those interrogatories went unanswered. During

       this time, Mother denied Father parenting time on several occasions.


[11]   Sometime in June or July 2017, while awaiting a hearing on her motion to

       modify parenting time, Mother contacted GAL Wagenblast and requested that

       he investigate Father’s living conditions. After conducting a visit, GAL

       Wagenblast determined that Father’s camper was habitable, and he notified the

       parties’ attorneys of his findings and he further stated that Father’s parenting

       time should resume.


[12]   On August 21, 2017, Father filed a Verified Motion for Rule to Show Cause,

       alleging that Mother had denied him parenting time in the summer of 2017. On

       September 19, 2017, GAL Wagenblast filed a detailed report comprised of

       multiple recommendations and observations. GAL Wagenblast stated that

       Mother should have sole legal and physical custody of the Child, Father should

       have parenting time according to the Indiana Parenting Time Guidelines with

       parenting time exchanges to occur at Family House, and Father to regularly

       pay his child support. On September 29, 2017, the trial court conducted a

       hearing regarding parenting time issues. Following that hearing, the trial court

       issued an order adopting GAL Wagenblast’s recommendations regarding

       parenting time.


[13]   A final dissolution hearing was held on March 7, 2018, March 22, 2018, and

       April 6, 2018, where all pending matters were addressed. The parties


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 6 of 26
       subsequently submitted their proposed findings of facts and conclusions

       thereon. On April 23, 2018, the trial court entered its findings of fact and

       conclusions of law dissolving the parties’ marriage.


[14]   Father now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                            I. Standard of Review

[15]   Here, the trial court made findings of fact and conclusions of law thereon

       pursuant to Indiana Trial Rule 52(A) in its dissolution decree and its

       amendment thereof. Our standard of review is therefore two-tiered. “We first

       determine whether the evidence supports the findings and then whether those

       findings support the judgment.” Bertholet v. Bertholet, 725 N.E.2d 487, 495 (Ind.

       Ct. App. 2000). On review, we do not set aside the trial court’s findings or

       judgment unless clearly erroneous. T.R. 52(A). A finding is clearly erroneous

       when there is no evidence or inferences reasonably drawn therefrom to support

       it. Bertholet, 725 N.E.2d at 495. The judgment is clearly erroneous when it is

       unsupported by the findings of fact and conclusions entered on the findings. Id.

       We may affirm the judgment on any legal theory supported by the findings if

       that theory is consistent with “all of the trial court’s findings of fact and the

       inferences reasonably drawn from the findings[,]” and if we deem such a

       decision prudent in light of the evidence presented at trial and the arguments

       briefed on appeal. Id. In addition to the standard of review set forth in Indiana

       Trial Rule 52, there is a longstanding preference in family law matters that the


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 7 of 26
       trial court’s determinations are entitled considerable deference. Swadner v.

       Swadner, 897 N.E.2d 966, 971 (Ind. Ct. App. 2008). By virtue of their “unique,

       direct interactions with the parties fact-to-face, over an extended period of

       time[,]” trial courts are in a better position than appellate courts “to assess

       credibility and character through both factual testimony and intuitive

       discernment.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).


                                        II. Father’s Imputed Income

[16]   The Indiana Child Support Guidelines (the Guidelines) provide,


               If a court finds a parent is voluntarily unemployed or
               underemployed without just cause, child support shall be
               calculated based on a determination of potential income. A
               determination of potential income shall be made by determining
               employment potential and probable earnings level based on the
               obligor’s work history, occupational qualifications, prevailing job
               opportunities, and earnings levels in the community.


       Ind. Child Support Guideline 3(A)(3). “Potential income may be determined if

       a parent has no income, or only means-tested income, and is capable of earning

       income or capable of earning more.” Id. cmt 2c. “But the Guidelines do not

       require or encourage parents to make career decisions based strictly upon the

       size of potential paychecks, nor do the Guidelines require that parents work to

       their full economic potential.” Sandlin v. Sandlin, 972 N.E.2d 371, 375 (Ind. Ct.

       App. 2012). “Obviously, a great deal of discretion will have to be used in this

       determination.” Ind. Child Support Guideline 3(A)(3), cmt 2c. Indeed, we will

       reverse a trial court’s decision regarding a parent’s unemployment or


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 8 of 26
       underemployment and imputation of potential income only for an abuse of

       discretion. In re Paternity of Pickett, 44 N.E.3d 756, 762 (Ind. Ct. App. 2015). In

       determining whether the trial court abused its discretion, we do not reweigh the

       evidence or judge the credibility of witnesses, and we consider only the

       evidence and reasonable inferences favorable to the judgment. Id.


[17]   In the Decree, the trial court entered the following pertinent findings regarding

       Father’s work history and income:


               42. Father worked at Budd Mechanical Services from January 1,
               2017 through April 20, 2017 (when Father was fired from his job
               prompting him to file the petition to modify child support) and
               during these 37 weeks, 1 Father earned $10,818.75 or $676.19 per
               week. Father asks this [c]ourt to show him having a gross weekly
               income of $208.00 by distributing his $10,818.75 over the course
               of the entire year. The [c]ourt is not inclined to do so.


               43. Father filed for unemployment, but he was denied because
               Budd Mechanical Services disputed it. Father failed to appeal
               the denial because he claimed he was too stressed out from the
               divorce proceedings.


               44. Father blamed Mother for his loss of employment and
               accused her of sending letters to his employer containing Father’s
               criminal history and a copy of the Order for Protection Mother
               obtained against Father. However, these two letters were
               received by Budd Mechanical Services in December of 2016 and
               late January or early February of 2017. Father was fired in late



       1
        We note a scrivener’s error. Father was employed by Budd from January 1, 2017, through April 20, 2017.
       This was about sixteen weeks and not thirty-seven weeks.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019          Page 9 of 26
        April of 2017 for failing to answer his telephone when his
        employer tried to call him. Father claimed that he was not “on
        call” when his employer tried to reach him, yet still they fired
        him.


        45. Mother testified that since she has known Father, he has
        always earned substantially more than $10,000.00 per year. It is
        Mother’s belief that Father was intentionally underemployed.
        The [c]ourt agrees.


        46. Father is a qualified HVAC systems mechanic who is trained
        to repair, modify and install HVAC systems. Father also
        possesses OSHA certifications which would only enhance
        Father’s employability. Father is a handy tradesman who has
        performed odd jobs for his attorney, landlord, and others during
        the pendency of this dissolution.


        47. Although Father made some efforts to get a job, the [c]ourt
        finds these efforts fell far short of what he could have done to
        secure any kind of paying job from May of 2017 through April of
        2018. Father testified that he was afraid potential employers
        would not want to deal with his record or with Mother mailing
        incriminating documents or calling his employer to report him
        for various behaviors. Father also testified that he was
        “depressed” and “did very little” to find employment despite
        having no issues finding employment before April of 2017.


        48. On December 17, 2017, Father filed [sic] to register his new
        HVAC business, Arctic Fire Heating & Air, LLC, with the
        Indiana Secretary of State. However, Father could not indicate
        how many hours a week he put toward his business nor could he
        describe what kind of plan he had in place to grow his business.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 10 of 26
               49. The [c]ourt finds that Father’s lack of efforts to obtain
               employment, in the context of this particular case with this
               particular Father, constitute voluntary underemployment.


       (Appellant’s App. Vol. II, pp. 28-29).


[18]   Father contends that the trial court erred when it determined that he was

       voluntarily underemployed and imputed income to him based on his earnings

       from previous years.


[19]   In support of his claim that he was not voluntarily unemployed, Father blames

       Mother for his unemployment in 2016 and 2017. Specifically, Father states that

       it was Mother who sent the anonymous letters to Parkway and Budd which

       resulted in him being terminated from his employment. First, we note that

       while the letters sent to Budd and Parkway containing Father’s criminal history

       were printouts, the address on the envelope was handwritten. According to

       Father, the handwriting on both envelopes was Mother’s. Other than his

       testimony, Father did not offer any corroborating evidence to support his claim,

       and Mother denied sending those letters at the final hearing. Further, we note

       that when Parkway terminated Father in September 2016, other than being

       notified of Father’s past criminal history, Parkway ended Father’s employment

       due to the fact that Mother had notified Parkway by phone call, that Father had

       stalked her using Parkway’s truck. In addition, we find that while Budd

       received the same anonymous letter containing Father’s criminal history in

       January or February 2017, Budd terminated Father after he failed to answer its

       call in April 2017.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 11 of 26
[20]   Father additionally claims that he was not voluntarily underemployed since he

       “actively sought employment even to the point of starting his own company,”

       after being terminated by Budd in April 2017. (Appellant’s Br. p. 20). The

       record shows that Father applied for unemployment benefits but was denied

       because Budd disputed the claim. When asked why he did not appeal the

       denial, Father’s excuse was that he “was just stressed out” from the divorce

       proceeding to pursue an appeal. (Tr. Vol. II, p. 189). Father admitted that he

       stopped his job search because he was fearful that another anonymous letter

       regarding his criminal background would be sent to his potential future

       employer once he secured employment. At the final hearing, he admitted that

       he was “depressed” and “did very little” to find employment despite having no

       issues finding employment before April 2017. (Tr. Vol. IV, p. 4).


[21]   Moreover, the trial court heard evidence indicating that Father was qualified to

       repair, modify, and install HVAC systems. Also, evidence was presented that

       Father possessed “OSHA certifications which would only enhance Father’s

       employability.” (Appellant’s App. Vol. II, p. 28). Notably, although Father

       had been unable to find employment between April 2017 and December 2017,

       Father traded his services and performed “odd jobs for his attorney, landlord,

       and others during the pendency of this dissolution.” (Appellant’s App. Vol. II,

       p. 28). Father has not established that the trial court abused its discretion in

       finding him to be voluntarily underemployed.


[22]   In addition to finding that Father was voluntarily unemployed, the trial court

       imputed a weekly gross income of $791 per week. Because Father was self-

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 12 of 26
       employed at the time of the dissolution hearing, the trial court arrived at

       Father’s imputed weekly gross income by averaging Father’s annual gross

       income from 2015 through 2017 based on his tax return filings. Father

       contends that the trial court’s use of income averaging to calculate his child

       support obligation was clearly erroneous. We disagree.


[23]   In Trabucco v. Trabucco, 944 N.E.2d 544, 547 (Ind. Ct. App. 2011), trans. denied,

       the husband, a urologist, was arrested for maintaining a marijuana growing

       operation and convicted of marijuana possession. Husband’s income fluctuated

       after the conviction because his medical license was briefly suspended, he had

       difficulty obtaining medical malpractice insurance, he lost patients, and he

       experienced other problems. Id. at 547-48. The trial court calculated husband’s

       gross weekly income by taking the income reported on husband’s tax returns

       over a five-year period, disregarding the highest and lowest annual incomes,

       and averaging the incomes for the remaining three years. Id. at 548. We

       affirmed the trial court’s income calculation. Id. at 553. Courts often use

       income averaging to determine the gross weekly income of self-employed child

       support obligors. Id. at 552. We noted that “all forms of self-employment

       create some level of unpredictability in income, and such factual determinations

       are best left to the trial court.” Id. Contrary to Father’s contention, the

       Trabucco holding allows courts to use the income averaging method to

       determine the gross weekly income of self-employed child support obligors.


[24]   In the Decree, the trial court entered the following pertinent findings:



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 13 of 26
           40. Neither party presented evidence as to what Father earned
           for the entire year in 2015. However, Father worked at least part
           of the year at Hamstra Builders, Inc. as evidenced by a
           September 18, 2015 paystub which showed Father’s gross year-
           to-date income was $32,763.39 or $885.50 per week
           ($32,763.39÷37 weeks).


           41. The [c]ourt finds that Father’s gross income in 2016 was
           $42,234.00 or $812.19 per week.


           42. Father worked at Budd Mechanical Services from January 1,
           2017 through April 20, 2017 (when Father was fired from his job
           prompting him to file the petition to modify child support) and
           during these 37 weeks, 2 Father earned $10,818.75 or $676.19 per
           week. Father asks this [c]ourt to show him having a gross weekly
           income of $208.00 by distributing his $10,818.75 over the course
           of the entire year. The [c]ourt is not inclined to do so.


           ****


           50. The [c]ourt therefore finds it appropriate to average Father’s
           weekly gross income for the past three years in determining and
           imputing an equitable income to put in Father’s column for
           calculating child support.


           51. Using . . . Father’s weekly gross income for 2015 ($886),
           2016 ($812) and 2017 ($676) comes to $791.00 per week.


(Appellant’s App. Vol. II, pp. 28-29).




2
    As noted, this is a scrivener’s error and it should be sixteen weeks instead of thirty-seven weeks.


Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019                   Page 14 of 26
[25]   Upon finding that Father was voluntarily unemployed, and in applying the

       income-averaging methodology in calculating Father’s potential weekly gross

       income, the trial court used Father’s income tax returns from 2015 through

       2017, which showed a weekly gross income of $886, $812, and $676

       respectively. The average gross income earned during those three years

       amounted to $791.00. per week. Here, the trial court considered all the relevant

       evidence relating to Father’s income for child support purposes, thus, we affirm

       the trial court’s calculation.


                                                 III. Contempt

[26]   Father argues that the trial court erred when it failed to hold Mother in

       contempt for denying him parenting time in the summer of 2017. Contempt of

       court “involves disobedience of a court which undermines the court’s authority,

       justice and dignity.” Henderson v. Henderson, 919 N.E.2d 1207, 1210 (Ind. Ct.

       App. 2010) (citing Srivastava v. Indianapolis Hebrew Congregation, Inc. 779 N.E.2d

       52, 60 (Ind. Ct. App. 2002), trans. denied). There are two types of contempt:

       direct and indirect. Id. Direct contempt involves actions occurring near the

       court that interfere with the business of the court and of which the judge has

       personal knowledge. Id. Contempt is indirect if it involves actions outside the

       trial court’s personal knowledge. Id. “Willful disobedience of any lawfully

       entered court order of which the offender had notice is indirect contempt.” Id.

       (citing Francies v. Francies, 759 N.E.2d 1106, 1118 (Ind. Ct. App. 2001), reh’g

       denied, trans. denied). The determination of whether a party is in contempt of

       court is a matter within the trial court’s discretion, and the trial court’s decision

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 15 of 26
       will only be reversed for an abuse of discretion. Piercey v. Piercey, 727 N.E.2d

       26, 31 (Ind. Ct. App. 2000).


[27]   The Provisional Order entered on March 28, 2016, granted Mother temporary

       sole legal and physical custody of the Child, and Father was to exercise

       parenting time every other weekend from Friday 4:30 p.m. to Sunday 6:00 p.m.

       In May 2017, Father was evicted from his apartment, and Father refused to

       divulge his address to Mother. Father’s actions prompted Mother to file a

       Verified Motion to Modify Parenting Time, where she sought Father’s

       parenting time to be supervised at Family House since Father had failed to

       disclose his address. Sometime in June 2017, DCS initiated an investigation

       against Father based on a claim that his camper was infested with bed bugs. In

       the wake of that investigation, and concerned for the Child’s safety and

       wellbeing, Mother enlisted the help of GAL Wagenblast, who, in turn,

       inspected Father’s new residence and confirmed that it was habitable. During

       this time, Mother denied Father parenting time on several occasions. On

       August 21, 2017, Father filed a Verified Motion for Rule to Show Cause,

       alleging that Mother had denied him parenting time in the summer of 2017.


[28]   Other than her concern about the Child’s safety, Mother’s other defense to

       Father’s contempt action was that she partly relied on GAL Wagenblast’s

       advice to deny Father parenting time in the summer of 2017. During the

       dissolution hearing, when questioned about Mother’s claim, GAL Wagenblast

       testified as follows



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 16 of 26
        I don’t remember exactly what I said. It is possible that at one
        point I told her . . . that if she chose not to allow parenting time
        while the [DCS] investigation was going on, I would understand
        that.


(Tr. Vol. II, p. 31). In the Decree, the trial court found that:


        135. During the summer of 2017, Father had been evicted from
        his apartment but did not notify Mother that he was no longer
        going to live there, he was investigated by the Indiana
        Department of Child Services for having bedbugs in his home
        (which was later unsubstantiated), he purchased and moved into
        a camper on a friend’s property but at least initially he did not
        inform Mother of his address or location, and Father was
        involved in litigation in another court in which Father’s
        parenting time was restricted with his two prior born children.


        136. Mother’s concern related to the goings-on in that unrelated
        case caused her to withhold parenting time from Father until
        things were sorted out further.


        137. The [c]ourt agrees that Mother withheld parenting time
        from Father for a portion of the summer of 2017. However, the
        [c]ourt finds that she did not do so to punish Father. Rather,
        between May and August of 2017, there were numerous things
        going on in Father’s life that were suspect and needed fleshing
        out before Mother would allow [the Child] to have parenting
        time with Father as previously ordered. Therefore, the [c]ourt
        does not find Mother in contempt.


(Appellant’s App. Vol. II, p. 45). Father does not directly challenge these

findings, and we hold that they are supported by the evidence and not clearly

erroneous. While we do not condone Mother’s actions of denying Father


Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 17 of 26
       parenting time in the summer of 2017, we cannot say that Mother’s actions

       amounted to willful disobedience considering her valid concerns between May

       and August of 2017 when numerous things were going on in Father’s life.

       Here, we find that Mother met her burden of showing that her conduct did not

       amount to willful disobedience of the parenting time order; therefore, we affirm

       the trial court’s decision.


                                     IV. Division of the Marital Estate

[29]   Father contends that the division of the marital estate was clearly erroneous for

       three reasons: (1) the trial court ignored the parties agreement regarding the

       division of the marital estate; (2) the trial court erroneously assigned to him the

       debt on the Verizon bill rather than dividing it equally between the parties; and

       (3) the trial court erred when it included a construction bill which had been

       incurred by Mother after the dissolution petition had been filed. We shall

       address each issue in turn.


                                              A. Parties’ Agreement

[30]   The division of marital assets lies within the sound discretion of the trial court,

       and we will reverse only for an abuse of that discretion. J.M. v. N.M., 844

       N.E.2d 590, 602 (Ind. Ct. App. 2006), trans. denied. An abuse of discretion

       occurs when the trial court’s decision is clearly against the logic and effect of

       the facts and circumstances presented. Id. When we review a challenge to the

       trial court’s division of marital property, we may not reweigh the evidence or




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 18 of 26
       assess the credibility of witnesses, and we will consider only the evidence most

       favorable to the trial court’s disposition of marital property. Id.


[31]   Pursuant to Indiana Code section 31-15-7-5, a trial court shall presume that an

       equal division of the marital property between the parties is just and reasonable.

       The court may deviate from the statutory presumption of equal distribution if a

       party presents relevant evidence to show that an equal division would not be

       just and reasonable. Such evidence may include evidence of: (1) each spouse’s

       contribution to the acquisition of property; (2) acquisition of property through

       gift or inheritance prior to the marriage; (3) the economic circumstances of each

       spouse at the time of disposition; (4) each spouse’s dissipation or disposition of

       property during the marriage; and (5) each spouse’s earning ability. I.C. § 31-

       15-7-5; Chase v. Chase, 690 N.E.2d 753, 756 (Ind. Ct. App. 1998).


[32]   In 2010, prior to her marriage to Father, Mother purchased the marital

       residence (House) which was covered by a Chase mortgage (First Mortgage).

       There was also another mortgage by 1st Merchant’s Bank (Second Mortgage)

       which was taken out during the parties’ marriage. Prior to the dissolution

       hearing, Mother’s counsel prepared a spreadsheet listing all the parties’ assets

       and debts. While every asset and liability were assigned to either Father or

       Mother, the House, the First and Second Mortgage were not assigned to either

       party. Without factoring these three items, and pursuant to the parties’

       spreadsheet, the total marital assets and liabilities subject to equitable division

       was $93,391.62 and $122,447.28, respectively. Father was required to pay

       Mother and equalization payment of $7,288.71. At the dissolution hearing, the

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 19 of 26
       parties stipulated to that spreadsheet, agreeing to the division of the marital

       estate in accordance with that spreadsheet.


[33]   Father’s sole contention on appeal is that the spreadsheet ostensibly divided all the

       parties’ assets and debts, and that the trial court abused its discretion in dividing

       the marital estate in light of the parties’ agreement. In support, Father cites

       Nornes v. Nornes, 884 N.E.2d 886 (Ind. Ct. App. 2008) where this court held that


               in the absence of an agreement of the parties to the contrary, where the
               parties divide between themselves a part of the marital estate and
               leave the division of the balance to the discretion of the trial
               court, the trial court should assume that the property that the
               parties have already divided was divided justly and reasonably
               and shall divide the remainder of the assets and liabilities of the
               parties as if they were the entirety of the marital estate.


       Id. at 889 (emphasis in original). Father continues to argue


               like the court espoused in [Nornes], the trial court should have
               refrained from interfering with the parties’ right to enter into
               agreements nor should it have second guessed the wisdom of the
               parties in entering into agreements on how to divide marital
               property. Accordingly, the trial court was required to assume
               that [Father] and [Mother] had already equitably divided the
               marital estate, including the marital residence, the first mortgage,
               and any money needed to equalize the estates.


       (Appellant’s Br. p. 29). Mother counters Father’s argument by claiming that

       while she stipulated to the spreadsheet, that spreadsheet was “never intended to

       be a full agreement as to the division of all assets and debts in the marital

       estate.” (Appellee’s Br. p. 30). We agree.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 20 of 26
[34]   A close examination of the spreadsheet shows that several items were excluded

       from the parties’ spreadsheet. In particular, the House, First and Second

       Mortgage were listed on the spreadsheet; however, those items were not

       assigned to either party. This evidence counters Father’s claim that the

       spreadsheet proposed a complete division of the parties’ marital estate. In

       dividing the parties’ marital estate, the only task that the trial court had at the

       parties’ dissolution hearing was to divide the items not stipulated in the

       spreadsheet.


[35]   Like the Nornes’ holding, the trial court was within its discretion to divide other

       marital property not stipulated or allocated in the spreadsheet. See Nornes, 884

       N.E.2d at 889 (holding that the trial court has discretion to divide the balance of

       the marital estate not falling within the parties’ agreement). In sum, because

       the spreadsheet did not fully divide of all the parties’ marital property, and

       consistent with the Nornes’ holding, the trial court properly exercised its

       discretion in allocating, and dividing the items left out from parties’

       spreadsheet. Therefore, we find no abuse of discretion.


                                                  B. Verizon Bill

[36]   At the final hearing, the trial court was presented with a Verizon bill, in

       Father’s name, amounting to $1,222.38. Father requested the trial court to

       include that amount in the marital pot. Notwithstanding his request, the trial

       court did not include the bill in the marital estate and wholly allocated that

       expense to Father. Father claims that the trial court erred.


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 21 of 26
[37]   Marital property includes both assets and liabilities. McCord v. McCord, 852

       N.E.2d 35, 45 (Ind. Ct. App. 2006), trans denied. Again, in Indiana, all marital

       property goes into the marital pot for division, even if it was purchased with

       funds that one spouse brought into the marriage. See I.C. § 31-15-7-4(a). In

       determining how to divide a marital estate, the trial court “shall presume that

       an equal division of the marital property between the parties is just and

       reasonable.” I.C. § 31-15-7-5 (emphasis added). However, this is a rebuttable

       presumption, and a party may present relevant evidence to establish that an

       equal division would not be just and reasonable. I.C. § 31-15-7-5. If the trial

       court determines that a party opposing an equal division has met his or her

       burden under the statute, the court must state in its findings and judgment its

       reasons for deviating from the presumption of an equal division. Hartley v.

       Hartley, 862 N.E.2d 274, 285 (Ind. Ct. App. 2007). The trial court must

       consider all the statutory factors, rather than focusing on just one factor, but

       need not explicitly address all the factors in every case. Eye v. Eye, 849 N.E.2d

       698, 701-02 (Ind. Ct. App. 2006).


[38]   In the present case, there is no dispute that the Verizon bill is marital property

       since it was an expense incurred during the parties’ marriage and was subject to

       the presumption of an equal division. However, the trial court found that

       Mother had rebutted the presumption, and it allocated that liability to Father in

       its entirety. In support of its decision to deviate from the presumption of an

       equal division, the trial court made the following findings:




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 22 of 26
               77. Father contends that a Verizon bill in the amount of
               $1,222.38 was due at the time Mother filed the petition for
               dissolution, therefore, Mother should be responsible for one-half
               of that debt.


               78. The [c]ourt includes the Verizon bill of $1,222.38 in the
               marital estate.


               79. Mother testified that she and Father each had their own cell
               phones and separate cell phone accounts throughout the
               marriage and each paid for his or her own bills related to those
               accounts. Mother also testified that this particular Verizon
               account which Father wants included in the division of the
               marital estate provided Father and Father’s two prior born
               children with cell phones—not her.


               80. The [c]ourt finds this account belonged exclusively to Father
               and was treated as his own account throughout the marriage.
               Further it was only after the parties separated that Father felt
               Mother should be responsible for his delinquent bill. The [c]ourt
               removes the Verizon bill of $1,222.38 from the division of the
               marital estate and finds that Father is solely responsible for the
               payment of that bill and he shall hold Mother harmless
               therefrom.


       (Appellant’s App. Vol. II, p. 34).


[39]   Mother testified that each party was responsible for their own cellphone bills

       during their marriage, and that the parties continued with this same

       arrangement post-filing. In addition, the record shows that Father’s Verizon

       account also included a third user, Father’s mother. Based upon the record and

       given that the trial court indicated that it intended to divide the marital estate


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 23 of 26
       equally and did find that the presumption of equal division had been rebutted,

       with respect to the Verizon invoice. In short, the trial court’s determination

       that the Verizon bill should be set aside to Father has evidentiary support, and

       we hold that the trial court did not abuse its discretion in failing to include that

       bill in the marital pot


                                   C. Total Development Construction Bill

[40]   Father contends that the trial court erred by including a construction bill

       incurred by Mother after the filing date of the dissolution as a marital debt.

       Father claims that this construction bill was a post-filing expense.


[41]   When a party challenges the trial court’s division of marital property, he must

       overcome a strong presumption that the court considered and complied with

       the statute. Galloway v. Galloway, 855 N.E.2d 302, 304 (Ind. Ct. App. 2006).

       We may not reweigh the evidence or assess the credibility of witnesses, and we

       will consider only the evidence most favorable to the trial court’s judgment. Id.

       Although the facts and reasonable inferences might allow for a different

       conclusion, we will not substitute our judgment for that of the trial court. Id.

       In general, any debt incurred by one party after the filing date of the dissolution

       petition is not to be included in the marital pot. Sanjari v. Sanjari, 755 N.E.2d

       1186, 1192 (Ind. Ct. App. 2001).


[42]   On the construction expenses at issue, the trial court entered the following

       findings:




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 24 of 26
               102. At some point during the marriage, Mother obtained a
               second mortgage on the marital residence to be used to improve
               and repair the property. Before the parties separated, Father
               began doing some work inside and outside of the residence.
               Before he completed the work, the parties separated and Father
               left an unfinished garage, basement, siding and driveway.


               103. The condition of the marital residence was such that the
               City of Valparaiso Inspector threatened to issue citations to
               Mother for the work that was left unfinished.


               104. In order to avoid being cited by the City, Mother hired
               Total Development Construction, Inc. to complete enough work
               on the residence to bring it into compliance with the City. These
               repairs cost Mother $3,400.00.


               105. The [c]ourt finds the debt of $3,400 should be included in
               the division of the marital estate despite being incurred after the
               parties separated because these expenses were specifically
               incurred due to work that was in progress before the dissolution
               proceedings began and necessary to prevent the marital residence
               and the home of the parties’ minor child from being the subject of
               fines and/or litigation with the City of Valparaiso.


       (Appellant’s App. Vol. II, pp. 37-38).


[43]   Father claims that Mother did not present any evidence that the “structure

       violated any city codes when construction began.” (Appellant’s Br. p. 31).

       Father also argues that Mother did not object to any of the home repairs during

       the marriage. Father’s arguments on appeal essentially ask us to reweigh his

       evidence and judge his credibility, which we will not do. While the repair

       expenses were post-filing expenses, Mother testified that all the repairs related

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 25 of 26
       to unfinished projects commenced by Father during their marriage. Indeed, we

       presume the trial court followed the law and made all the proper considerations

       in making its decision. See Maxwell v. Maxwell, 850 N.E.2d 969, 973 (Ind. Ct.

       App. 2006), trans. denied. Therefore, we are satisfied that the trial court properly

       included the construction repair costs in the marital estate.


                                             CONCLUSION
[44]   Based on the foregoing, we conclude that the trial court properly found that

       Father was voluntarily underemployed, and we affirm the trial court’s

       calculation of Father’s imputed weekly gross income. Also, we conclude that

       the trial court did not abuse its discretion by finding Mother was not in

       contempt of the parenting time order. Lastly, we hold that the trial court did

       not abuse its discretion in dividing the marital estate.


[45]   Affirmed.


[46]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019   Page 26 of 26
