MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                           Feb 18 2020, 8:48 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                                   ATTORNEY FOR APPELLEE
Dan J. May                                               Joshua E. Leicht
Kokomo, Indiana                                          Leicht Law Office
                                                         Kokomo, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

K.N.S.,                                                  February 18, 2020
Appellant,                                               Court of Appeals Case No.
                                                         19A-DC-2112
        v.                                               Appeal from the Howard Superior
                                                         Court
J.C.,                                                    The Honorable Hans S. Pate,
Appellee.                                                Judge
                                                         Trial Court Cause No.
                                                         34D04-1803-DC-175



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020           Page 1 of 16
                                          Case Summary
[1]   The marriage of K.N.S. (“Mother”) and J.C. (“Father”) was dissolved in the

      Howard Superior Court and the trial court entered an order dividing the marital

      property and awarding Mother custody of, and child support for, their three

      children. Mother’s motions to correct error were, apart from the correction of

      mathematical and scrivener error, denied. Mother now appeals the dissolution

      order with regard to property distribution and child support. We affirm in part,

      reverse in part, and remand with instructions to the trial court to distribute the

      marital property in accordance with Indiana Code Section 31-15-7-4, upon

      consideration of the factors of Indiana Code Section 31-15-7-5, and to revise the

      child support order consistent with this opinion.



                                                   Issues
[2]   Mother presents two issues for review:


              I.       Whether the property distribution order, allocating to
                       Father virtually all the marital property and leaving
                       Mother the entirety of the marital debt, is an abuse of
                       discretion; and


              II.      Whether the child support order, based upon potential
                       income attributed to each parent, absent consideration of
                       childcare expenses, giving Father credit for ninety-eight
                       overnight visits, and not made retroactive to the date of the
                       petition for child support, is an abuse of discretion.




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020   Page 2 of 16
                            Facts and Procedural History
[3]   Father, who was facing six criminal charges related to his alleged conduct

      toward Mother, did not appear at the final hearing or offer evidence; he was

      represented by counsel who presented argument. Accordingly, our recitation of

      the relevant facts and procedural history is derived from our review of the

      pleadings, the testimony of Mother (who was the sole witness at the final

      hearing), and a property tax document admitted into evidence, related to the

      principal marital asset.


[4]   In 2009, the parties began cohabitating and Mother gave birth to their eldest

      child. They were married on June 25, 2011, and had two more children, born

      in 2012 and 2016. They separated on November 29, 2017, after Father

      allegedly committed felony battery upon Mother. Father, who had operated a

      welding business next door to the marital residence, ceased to do so. Mother,

      who had been employed as a manager at Wendy’s working forty to fifty hours

      per week, left that position in December of 2017.


[5]   On March 9, 2018, Mother petitioned to dissolve the marriage; she sought

      custody of the children and an order for child support. In her pro se petition,

      Mother advised the trial court that there were at that time three related legal

      proceedings, with Father having been charged with one count of battery upon

      Mother and two counts of invasion of privacy for violating a protective order.


[6]   On May 9, 2018, the trial court conducted a provisional hearing. On May 14,

      2018, the trial court ordered that Mother have legal and physical custody of the

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020   Page 3 of 16
      children and that Father pay child support in the amount of $74.00, “beginning

      on Friday, May 18, 2018.” (App. Vol. II, pg. 27.) The child support

      calculation was based upon attributions of potential income:


              The father operates a welding business. He is capable of earning
              at least $500.00 per week.


              The mother had a job which she voluntarily left. When she was
              employed she earned $516.00 per week. The mother is not
              seeking employment. The court finds that the mother is
              voluntarily under employed and she is capable of earning
              $516.00 per week.


      Id. On the following day, Mother (by counsel) filed a motion to correct error.

      Mother requested that the child support order be made retroactive to the date of

      her motion for a provisional order. She also challenged the omission of any

      childcare costs in the imputation of income and advised that childcare costs for

      the youngest, then aged one, would exceed $100.00 per week. On July 24,

      2018, the trial court issued an order clarifying the location of the marital

      residence but denying the request for modification of the child support order.


[7]   On May 14, 2019, the trial court conducted a final hearing, at which Mother,

      her counsel, and Father’s counsel were present. At the outset, Father’s counsel

      advised the trial court that he had texted his client to remind him of the hearing

      date and Father had responded “thanks.” (Tr. Vol. II, pg. 3.) Counsel

      acquiesced to proceeding with the hearing without Father present.




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020   Page 4 of 16
[8]   Mother testified to the following as to Father’s criminal charges. By the time of

      the final hearing, Father had amassed three additional criminal charges related

      to his conduct against mother, for a total of six charges. Mother had also

      reported to police two incidents of property damage by Father. Mother had

      borrowed her grandmother’s vehicle, and Father “kicked the driver’s door”

      while she “was trying to get away” and “punched the windshield with his bare

      fist.” Id. at 18. This resulted in approximately $3,500.00 of damages. Mother

      had rented a Malibu from Enterprise Rent-a-Car, but Father “took a hammer to

      it, busted out the front windshield, the back windshield, the side mirrors,”

      dented the hood and “ripped off” the rearview mirror and windshield wiper and

      turn signal handles. Id. at 19. Enterprise Rent-a-Car was billing Mother for

      approximately $5,000.00 in damages. Mother was uncertain if new criminal

      charges had been filed against Father based upon her reports of these events.


[9]   As for Mother’s economic circumstances, she testified that she and the children

      were living with her grandmother and received food stamps. She had been

      unable to continue in her fast-food management position because she needed

      evening childcare and could no longer rely on Father. Mother had no vehicle

      and was fearful of Father’s conduct in her workplace. She had received no

      regular child support payment from Father but had been able to obtain proceeds

      from the release of a criminal bond, in the amount of $1,250.00. Mother did

      not know if or where Father was working. As to parenting time, Father had

      exercised parenting time with the children sporadically and had kept them

      overnight on a few recent occasions.


      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020   Page 5 of 16
[10]   Regarding the marital property and debts, Mother testified as follows.

       Electrical service at the marital residence had been shut off and could be

       restored only upon replacement of a meter and payment of $1,000.00. Father

       had caused approximately $8,500.00 in damages to two vehicles. He had also

       caused a debt to Aaron’s Furniture Rental in the approximate amount of

       $2,500.00 when he slit the living room furniture and lampshades with a knife

       and poured honey and syrup on them.


[11]   Father had possession of the sole marital property vehicle, which was possibly

       inoperable. Mother disclaimed an interest in the vehicle, and in welding

       equipment and tools that had disappeared from a pole barn.1 Mother proposed

       that she leave Father all household furniture that had belonged to his mother,

       and the stove, microwave, and refrigerator; she would take the washer and

       dryer. The primary marital asset was the marital residence, which Father’s

       uncle had deeded to Father on April 10, 2015, at no cost. At the time of the

       dissolution petition, the property had an assessed tax value of $108,000.00 and

       there was no mortgage lien against the property.


[12]   When Mother’s testimony concluded, the trial court heard argument of counsel

       and took the issues under advisement. On the following day, Mother filed a

       motion to correct error. Purportedly, Mother’s counsel had examined child




       1
         Mother’s attorney expressed his belief that Father had admitted, in prior proceedings, that he had broken
       into the pole barn and removed items. Mother testified to her belief that Father had given some of the
       welding equipment away.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020                Page 6 of 16
       support forms previously utilized by the trial court and discovered that the

       $72.00 child support award was based upon the amount for two children, as

       opposed to three children. Also, Father had been given credit for ninety-eight

       overnights with the children, as contemplated by the Indiana Parenting Time

       Guidelines and Indiana Child Support Guidelines. Mother asked the trial court

       to correct the mathematical error in the final decree, and also asked that Father

       not be given credit for irregular overnight visits.


[13]   On June 12, 2019, the trial court issued an order dissolving the marriage,

       granting Mother permanent legal and physical custody of the children, and

       ordering Father to pay $92.00 weekly in child support. Father was awarded the

       marital residence and its contents, except for the washer and dryer. The trial

       court refused to allocate marital debt, on grounds that Mother had provided no

       written documentation. Father was found to be in contempt of court for failure

       to pay child support and he was ordered to pay $4,000.00 of Mother’s

       attorney’s fees and $3,810.00 in child support arrearage.2


[14]   On July 12, 2019, Mother filed a motion to correct error, alleging: the property

       division was unconscionable; the trial court had relied upon stale testimony

       from the provisional hearing to attribute income to her; there had been a

       miscalculation in child support; and the trial court had ignored Father’s




       2
        The Appendix contains a page titled “Arrears Calculation” and indicates that the arrearage was calculated
       by multiplying $92.00 by fifty-five weeks and giving credit to Father for $1,250.00 (consistent with the
       amount recovered from the release of bond monies). (App. Vol. II, pg. 52.)

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020              Page 7 of 16
       dissipation of marital assets. The trial court denied Mother’s motion to correct

       error. She now appeals.



                                  Discussion and Decision
                                         Standard of Review
[15]   Mother appeals after the denial of a motion to correct error. Generally, a ruling

       on a motion to correct error is reviewed for an abuse of discretion. Poiry v. City

       of New Haven, 113 N.E.3d 1236, 1239 (Ind. Ct. App. 2018). An abuse of the

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

       effect of the facts and circumstances before the court or the court has

       misinterpreted the law. However, when issues raised in a motion to correct

       error present a question of law, our review is de novo. Id.


                                          Property Division
[16]   The parties owned real property worth $108,000.00 and some household

       furnishings. The unpaid debts incurred during the marriage consisted of

       $1,000.00 for electricity, $2,500.00 to Aaron’s Furniture Rental, $3,500.00 for

       costs of repairing a vehicle; and $5,000.00 to Enterprise Rent-a-Car. The trial

       court divided the marital estate by awarding Mother the washer and dryer; the

       real property and all other furnishings were awarded to Father. As for the debt,

       Father had no obligation imposed upon him. Mother contends this constitutes

       an abuse of discretion.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020   Page 8 of 16
[17]   A trial court has broad discretion in dividing the marital estate, and we will

       reverse a trial court’s decision only for an abuse of discretion. Goodman v.

       Goodman, 94 N.E.3d 733, 742 (Ind. Ct. App. 2018), trans. denied. We do not

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

       the evidence most favorable to the decision of the trial court. Harrison v.

       Harrison, 88 N.E.3d 232, 234 (Ind. Ct. App. 2017), trans. denied. The party

       challenging the trial court’s property division must overcome a strong

       presumption that the court complied with the relevant statutory guidelines. Id.


[18]   Indiana Code Section 31-15-7-4 requires the dissolution court to divide the

       property of the parties “in a just and reasonable manner.” The property to be

       divided includes property (1) owned by either spouse before the marriage, (2)

       acquired by either spouse in his or her own right after the marriage and before

       final separation, or (3) acquired by their joint efforts. Id. The division of

       marital property involves a two-step process; that is, first the trial court must

       ascertain what property is to be included in the marital estate and second, the

       trial court must fashion a just and reasonable division of the marital estate.

       Goodman, 94 N.E.3d at 742.


[19]   The marital pot to be divided includes both the assets and the liabilities of the

       parties. Crider v. Crider, 26 N.E.3d 1045, 1049 (Ind. Ct. App. 2015). “The

       systematic exclusion of any marital asset from the marital pot is erroneous.”

       Harrison, 88 N.E.3d at 235.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020   Page 9 of 16
[20]   There exists a presumption that the property in the marital pot is to be divided

       equally. Indiana Code Section 31-15-7-5 provides:


               The court shall presume that an equal division of the marital
               property between the parties is just and reasonable. However,
               this presumption may be rebutted by a party who presents
               relevant evidence, including evidence concerning the following
               factors, that an equal division would not be just and reasonable:


               (1) The contribution of each spouse to the acquisition of the
                   property, regardless of whether the contribution was income
                   producing.


               (2) The extent to which the property was acquired by each
                   spouse:


                   (A) before the marriage; or


                   (B) through inheritance or gift.


               (3) The economic circumstances of each spouse at the time the
                   disposition of the property is to become effective, including
                   the desirability of awarding the family residence or the right to
                   dwell in the family residence for such periods as the court
                   considers just to the spouse having custody of any children.


               (4) The conduct of the parties during the marriage as related to
                   the disposition or dissipation of their property.


               (5) The earnings or earning ability of the parties as related to:


                   (A) a final division of property; and


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020   Page 10 of 16
                   (B) A final determination of the property rights of the parties.


[21]   Fault is not relevant in dissolution proceedings, except fault related to the

       disposition or dissipation of marital assets. Goodman, 94 N.E.3d at 743. The

       trial court may consider such factors as (1) whether an expenditure benefited

       the marriage; (2) timing of the transaction; (3) whether an expenditure was

       excessive or de minimis; and (4) whether the alleged dissipating party intended

       to hide, deplete, or divert the marital asset. Id.


[22]   Here, the portion of the dissolution decree related to property division provided

       in its entirety:


               The wife testified as to damage to vehicles and property caused
               by the father; however, [she] provided no written proof or
               estimates as to damage amounts for the Court to consider.


               Father is awarded the property located at 2401 S. Dixon Road
               subject to the payment and maintenance of said property. The
               Court finds that the property was a gift from Father’s family.
               Mother is awarded the washer and dryer inside the residence and
               may have immediate possession of those items as well as her
               personal property.


       (App. Vol. II, pg. 11.)


[23]   Without articulating a finding that the evidence supported a deviation from the

       statutory presumptive 50/50 split, the trial court allocated to Father more than

       99% of the marital property and refused to assign him any marital debt. There

       is no indication that the trial court engaged in the two-step process of


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020   Page 11 of 16
       ascertaining what property was includable in the marital pot and then dividing

       the property in a just and reasonable manner. It appears that the trial court

       focused solely upon evidence that the marital residence had been a “gift.” At

       the hearing, Mother testified that Father’s uncle had deeded the property to

       Father and counsel argued as to whether Father’s uncle had intended a gift

       solely to Father or a gift to Father and his family. Regardless, the uncle’s

       intention at the time he made a gift is not dispositive. The real property was

       acquired “after the marriage and before final separation” and thus is a marital

       asset pursuant to Indiana Code Section 31-15-7-4. Its origin as a “gift” was but

       one of the statutory factors for consideration by the trial court.


[24]   In addition, there is no oral or written language from the trial court suggesting

       consideration of such factors as respective economic circumstances or

       dissipation of assets. This is so despite the uncontroverted testimony that

       Father left his children and Mother in dire circumstances after he: battered

       Mother, systematically destroyed property, disposed of property, ceased

       operating his welding business, refused to pay child support, deprived Mother

       of a means of transportation, and repeatedly ignored protective orders.

       Moreover, the trial court refused to allocate any marital debt to Father, wholly

       disregarding Mother’s uncontroverted testimony and demanding – without

       basis in law – documentary evidence. The cursory disposition of virtually all

       the marital assets to Father, coupled with a refusal to hold him accountable for

       any marital debt, constitutes an abuse of discretion.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020   Page 12 of 16
                                        Child Support Order
[25]   The trial court ordered Father to pay $92.00 per week for the support of his

       three children. In calculating this to be an appropriate amount of support under

       the Indiana Child Support Guidelines (“the Guidelines”), the trial court

       attributed roughly proportional potential incomes to Mother and Father

       ($516.00 and $500.00, respectively) and gave Father credit for ninety-eight

       overnights per year. Mother contends that the trial court abused its discretion

       because the evidence supported a lesser potential income on her part and a

       lesser or no credit to Father. Mother also contends that the award of child

       support should have been made retroactive to the date of her filing for child

       support. She argues that the trial court’s decision to use the date of its order as

       the beginning of Father’s support obligation, after he requested a continuance,

       granted Father a windfall and deprived the children of support due them.


[26]   The amount of child support, including retroactive support, is to be determined

       in light of the circumstances of each case. Matter of Paternity of A.J.R., 702

       N.E.2d 355, 361 (Ind. Ct. App. 1998). Decisions regarding child support rest

       within the sound discretion of the trial court and we reverse its determination

       only if the trial court abused its discretion or made a determination that is

       contrary to law. Taylor v. Taylor, 42 N.E.3d 981, 986 (Ind. Ct. App. 2015),

       trans. denied. We consider only the evidence and reasonable inferences

       favorable to the judgment, but “will not blindly adhere to the computation of

       support” when careful review is necessary to do justice. Payton v. Payton, 847

       N.E.2d 251, 253 (Ind. Ct. App. 2006).

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020   Page 13 of 16
[27]   Under the Guidelines, parental income available for child support is broadly

       defined to include potential income. For purposes of child support, “weekly

       gross income” is defined as actual weekly gross income of the parent if

       employed to full capacity, potential income if unemployed or underemployed,

       and imputed income based on ‘in-kind’ benefits.” Ind. Child Support Guideline

       3(A)(1). Child support awards under the Guidelines are designed to provide the

       children as closely as possible with the same standard of living they would have

       enjoyed had the marriage not been dissolved. Payton, 847 N.E.2d at 253. Here,

       the computation of income for child support was particularly challenging, with

       no evidence of actual earnings by either parent.


[28]   Father did not appear at the final hearing, and there was no testimony or

       documentation of his past earnings or his potential income as a welder in the

       surrounding community. Neither Mother nor Father’s counsel presented a

       challenge to the attribution of $500.00 per week to Father as potential income,

       that is, Mother did not suggest an increase and Father’s counsel did not suggest

       a decrease. Mother suggested that the federal minimum wage for full-time

       work, $290.00 per week, be attributed to her. Although Mother testified that

       she had once earned $516.00 per week, she maintained that she could not

       continue to do so in her current circumstances. Indeed, one could not

       reasonably infer from the evidence of record that Mother, a custodial parent of

       three young children, could maintain her peak earnings by working evening

       shifts without childcare or an operable vehicle.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020   Page 14 of 16
[29]   Parenting time credit is not mandatory; it may be awarded in recognition that

       overnight visits with the noncustodial parent who provides such things as meals

       and transportation may alter some of the financial burden of the parents.

       Bogner v. Bogner, 29 N.E.3d 733, 743 (Ind. 2015). It logically follows that credit

       should not be given when visits are occurring so infrequently that the alteration

       of the respective financial positions is de minimis. Mother testified that Father

       had sporadically exercised parenting time with the children; he had them

       overnight on a few occasions after the marital separation. Father did not testify

       or proffer another witness regarding his past conduct or future intentions; he

       was facing multiple criminal charges. Thus, there is a dearth of evidence

       suggesting that he was or would be willing and able to exercise overnight

       parenting time with the children on an ongoing basis. The credit for ninety-

       eight overnights was contrary to the facts and circumstances before the trial

       court.


[30]   Finally, we are persuaded that the trial court abused its discretion by refusing

       Mother’s request that the modest award of child support be retroactive to the

       date that she requested a provisional order of support. Father requested a

       continuance but provided no basis upon which the trial court could conclude

       that he should not be required to contribute anything to the support of his three

       children for a two-month period of time.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020   Page 15 of 16
                                               Conclusion
[31]   We reverse the property distribution order and remand with instructions to the

       trial court to divide the marital pot, inclusive of assets and liabilities, in

       accordance with statutory authority providing for a just and reasonable

       disposition and a presumptive 50/50 split. We direct the trial court to consider,

       and enter appropriate findings, as to whether credit should be given to Mother

       for Father’s dissipation of marital assets. We also instruct the trial court to

       recalculate Father’s child support obligation, retroactive to the date of the filing

       for child support, reducing the potential income attributed to Mother to reflect

       the evidence presented as to her circumstances, and eliminating the credit to

       Father for overnight visits.


[32]   Affirmed in part, reversed in part, and remanded.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2112 | February 18, 2020   Page 16 of 16
