      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, 8:06 am

      court except for the purpose of establishing                             CLERK
                                                                           Indiana Supreme Court
      the defense of res judicata, collateral                                 Court of Appeals
                                                                                and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Justin T. Bowen                                           Jeffrey A. Flores
      Kathleen M. Meek                                          Madison, Indiana
      Romy N. Elswerky
      Bowen & Associates, LLC
      Carmel, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Stephanie L. Jones,                                       September 12, 2019
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                19A-JP-91
              v.                                                Appeal from the Switzerland
                                                                Circuit Court
      Jed D. McAlister,                                         The Honorable Jeffrey L. Sharp,
      Appellee-Respondent.                                      Special Judge
                                                                Trial Court Cause No.
                                                                78C01-1201-JP-2



      Mathias, Judge.


[1]   Stephanie L. Jones (“Mother”) appeals the Switzerland Circuit Court’s order

      modifying custody and child support for her minor child, C.M. Mother argues


      Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019             Page 1 of 14
      that the trial court abused its discretion when it ordered the parties to share

      parenting time equally and erred when it calculated the parties’ respective child

      support obligations.


[2]   We affirm in part, reverse in part, and remand with instructions to recalculate

      the parties’ respective child support obligations.


                                  Facts and Procedural History
[3]   Mother and Jed McAlister (“Father”) are the parents of seven-year-old C.M. In

      these paternity proceedings, the parties initially agreed that Mother would have

      physical custody of C.M., and Mother has been C.M.’s primary caretaker. Both

      parties each have one other child, and Father’s five-year-old child attends the

      same daycare as C.M.


[4]   On motion of the parties, parenting time and child support have been modified

      periodically in the past seven years. In 2014, in response to Father’s motion, the

      trial court issued a new parenting time order awarding Father parenting time

      with three-year-old C.M. every Tuesday from 4:00 p.m. to 8:00 p.m. and Friday

      from 4:00 p.m. to Saturday at 6:00 p.m. Every other week, Father’s parenting

      time was Friday from 4:00 p.m. to Sunday at 6:00 p.m. As a result of the order,

      Mother never had a full weekend of parenting time with C.M.


[5]   Mother is employed in the medical field, and her work schedule has fluctuated

      significantly since 2014. When his schedule permits, Father has opted to care

      for C.M. in lieu of sending her to a childcare facility during Mother’s working



      Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019   Page 2 of 14
      hours. As a result, he has enjoyed significantly more parenting time than the

      time awarded in the 2014 order.

[6]   Mother typically took C.M. to school or daycare in the mornings, and after

      school, C.M. went to daycare. In January 2018, Mother’s work schedule

      changed. As a result, Father, or his wife, generally picked up C.M. from

      daycare. Mother then picked up C.M. from Father’s house at approximately

      6:00 p.m. Father also exercised additional overnight parenting time at Mother’s

      request due to her work schedule or at Father’s request due to a special activity.

[7]   On September 4, 2018, Father filed a petition to modify parenting time due to

      substantial changes in the parties’ work schedules and his desire to have more

      parenting time with C.M. He effectively requested shared physical custody

      because he asked for seven overnights every two weeks. A hearing was held on

      Father’s petition on November 8, 2018. At the hearing, Mother also expressed

      her desire to have the parenting time order modified because the 2014 order

      does not allow her to have any full weekends of parenting time with C.M.

[8]   On December 14, 2018, the trial court issued its order modifying parenting time

      and child support. The court observed that the parties have never followed the

      custody order. Further, the court found:


              10. . . . While Father does exercise his parenting time every
              weekend, he has had a significant amount of additional time
              because of Mother’s work schedule as a nurse. It has widely
              fluctuated over the years, based on the shift she is assigned.



      Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019   Page 3 of 14
        11. Since 2014, Mother’s work schedule has fluctuated
        significantly. From March 2016 until February of 2018, Mother
        was dropping [C.M.] off at [Father’s] at 5:15 A.M., and picking
        her up at 9:00 P.M. [Father] willingly accommodated Mother’s
        schedule, as he appreciated the extra time. Sometimes [C.M.]
        would stay the night, because she could get more rest.


        12. Mother has at least an hour commute to work. At the time of
        the hearing, she was about to begin a new job, still in Edgewood,
        KY. She will be working five days per week, from 8 A.M. to 5
        P.M. To allow for the commute, she would need to leave Vevay
        no later than 7:00 A.M. and would return by 6 PM. If [Father]
        were not allowed to continue picking up [C.M.], this would leave
        her in daycare an additional 2.5 to 3hrs five nights per week.


        13. Father works about ten minutes from home. His schedule is 7
        AM to 3:30 P.M.


                                                 ***


        17. When Father picks up [R.M.] from day care, he picks up
        [C.M.] too. Father says it’s what he wants to do, and can’t
        imagine leaving [C.M.] there because she would feel excluded.
        Upon arriving home, he does homework with [C.M.], makes
        dinner and enjoys family time.


        18. When it’s not [Father] himself picking up [C.M.] from
        daycare, it[’]s either his wife, or his mother Darla . . . . When
        Darla picks them up, [Father] will usually let [C.M.] stay at her
        Grandma Darla’s for an hour or so, because she get[s] quality
        time with her, as well as her cousin. Mother will typically pick
        [C.M. up] from [Father’s] around 6:30.




Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019   Page 4 of 14
               19. The Court [f]inds that it is in the best interests of the child
               that the parties share physical custody.


               20. [Father], or Grandma Darla should be allowed to continue
               picking up [C.M.] from daycare. However if the pick-up occurs
               on Mother’s night[,] [Father] or Grandma must notify Mother in
               advance[.] [I]f unable to provide adequate notification then the
               child shall remain at daycare and Mother will pick her up.


       Appellant’s App. pp. 14-15.


[9]    The court then ordered the parties to agree on how to evenly split the time by

       alternating weeks or splitting the week. In the event the parties could not agree,

       the court ordered them to split the week. Each party was also awarded one full

       week during the summer for family vacation. The parties agreed to maintain

       shared legal custody. As a result of the new custody arrangement, Father’s child

       support obligation was modified to $31 per week. The court also ordered Father

       to pay “the controlled expenses” and daycare costs. Id. at 15. Mother now

       appeals.


                                          Standard of Review
[10]   In this case, neither party requested findings pursuant to Indiana Trial Rule

       52(A). In its custody modification order, the trial court issued findings and

       conclusions of law sua sponte. The trial court’s specific findings control only

       with respect to the issues they cover, and a general judgment standard applies to

       issues outside the trial court’s findings. Collyear-Bell v. Bell, 105 N.E.3d 176,

       183–84 (Ind. Ct. App. 2018). The trial court’s findings or judgment will be set


       Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019   Page 5 of 14
       aside only if they are clearly erroneous. Id. at 184. A finding of fact is clearly

       erroneous when there are no facts or inferences drawn therefrom to support it.

       Id. On appeal, we neither reweigh the evidence nor reassess witness credibility,

       and the evidence should be viewed most favorably to the judgment. Id.


                                      Discussion and Decision

                                                I. Unpleaded Issues

[11]   First, we address Mother’s argument that the trial court erred when it modified

       custody and child support because the issues were not raised in Father’s petition

       to modify parenting time. Indiana Trial Rule 15(B) provides that “[w]hen issues

       not raised by the pleadings are tried by express or implied consent of the parties,

       they shall be treated in all respects as if they had been raised in the pleadings.”

       In discussing how unpleaded issues impact litigation, we have previously

       stated:


                 The function of the issues, whether formed by the pleadings, pre-
                 trial orders, or contentions of the parties, is to provide a guide for
                 the parties and the court as they proceed through trial. Either
                 party may demand strict adherence to the issues raised before
                 trial. If the trial court allows introduction of an issue not raised
                 before trial, an objecting party may seek a reasonable
                 continuance in order to prepare to litigate the new issue.
                 However, where the trial ends without objection to the new issue,
                 the evidence actually presented at trial controls. Consequently,
                 neither pleadings, pre-trial orders, nor theories proposed by the
                 parties should frustrate the trier of fact from finding the facts that
                 a preponderance of the evidence permits.




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019   Page 6 of 14
               Because fairness compels certain restraints, however, there are
               limits upon the principle of amending pleadings through implied
               consent. For example, a party is entitled to some form of notice
               that an issue that was not pleaded is before the court. Notice can
               be overt, as where the unpleaded issue is expressly raised prior to
               or sometime during the trial but before the close of the evidence,
               or implied, as where the evidence presented at trial is such that a
               reasonably competent attorney would have recognized that the
               unpleaded issue was being litigated.


       In re V.C., 867 N.E.2d 167, 178 (Ind. Ct. App. 2007) (citations omitted).


[12]   Father’s petition for modification of parenting time effectively requested shared

       physical custody because he asked for seven overnights in each two-week

       period. Appellant’s App. pp. 41–42. At the modification hearing, the trial court

       characterized the proceeding as a modification of “parenting time and/or

       custody.” Tr. p. 3. Mother did not object to that characterization. And

       throughout his closing argument, Father referred to the proceeding as a custody

       modification. Tr. pp. 69–73. Again, Mother did not object to Father’s

       characterization of the proceedings as a request for custody modification during

       her closing argument or in her proposed order.


[13]   Concerning child support, the parties and the trial court discussed how changes

       in parenting time, Mother’s income, insurance and childcare costs would affect

       the support obligation. The parties agreed to submit income verification to the

       trial court. Tr. pp. 77–78. Also, Mother and Father submitted child support

       calculation worksheets with their proposed orders.




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019   Page 7 of 14
[14]   For all of these reasons, we conclude that modification of child custody and

       support were tried with Mother’s express, or at the very least implied, consent.


                                          II. Modification of Custody

[15]   “A child custody determination is very fact-sensitive.” Steele-Giri v. Steele, 51

       N.E.3d 119, 125 (Ind. 2016). Importantly, as an appellate court, we must give

       deference to the trial court, especially in matters regarding child custody.

       Indeed, we “are in a poor position to look at a cold transcript of the record, and

       conclude that the trial judge, who saw the witnesses, observed their demeanor,

       and scrutinized their testimony as it came from the witness stand, did not

       properly understand the significance of the evidence.” Jarrell v. Jarrell, 5 N.E.3d

       1186, 1190 (Ind. Ct. App. 2014) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307

       (Ind. 2002)), trans. denied.


[16]   In a paternity proceeding, the trial court “may not modify a child custody order

       unless: (1) modification is in the best interests of the child; and (2) there is a

       substantial change in one or more of the factors that the court may consider

       under” Indiana Code section 31-14-13-2. See Ind. Code § 31-14-13-6. These

       factors are:

               (1) The age and sex of the child.

               (2) The wishes of the child’s parents.

               (3) The wishes of the child, with more consideration given to the
               child’s wishes if the child is at least fourteen (14) years of age.

               (4) The interaction and interrelationship of the child with:


       Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019   Page 8 of 14
                         (A) the child’s parents;

                         (B) the child’s siblings; and

                         (C) any other person who may significantly affect the
                         child’s best interest.

                (5) The child’s adjustment to home, school, and community.

                (6) The mental and physical health of all individuals involved.

                (7) Evidence of a pattern of domestic or family violence by either
                parent.

                (8) Evidence that the child has been cared for by a de facto
                custodian, and if the evidence is sufficient, the court shall
                consider the factors described in section 2.5(b) of this chapter.


       I.C. § 31-14-13-2. Because Father filed the motion to modify, he had the burden

       of demonstrating a substantial change in circumstances. See Heagy v. Kean, 864

       N.E.2d 383, 388 (Ind. Ct. App. 2007), trans. denied.


[17]   First, Mother argues that Father did not prove a substantial change in any of

       the section 31-14-13-2 factors. And Mother notes that the trial court did not

       make a finding that there was a substantial change in any of the factors.1

       Mother also argues that allowing Father to exercise additional parenting time




       1
         However, absent a request by a party, the trial court is not required to make special findings regarding the
       substantial changes in the parties’ circumstances when ordering a custody modification. See In re Paternity of
       J.T., 988 N.E.2d 398, 400 (Ind. Ct. App. 2013).



       Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019                   Page 9 of 14
       because of her work schedule cannot be the sole basis for modification of

       custody. Appellant’s Br. at 17–18.

[18]   Commendably, Mother typically allowed Father to have additional parenting

       time with C.M. due to her work schedule or to accommodate Father’s family

       activities.2 But after Father informed Mother that he wanted to modify the

       existing parenting time order to increase his parenting time with C.M., Mother

       no longer allowed Father to have additional time with C.M. Father expressed

       concern that C.M. was confused by the parenting time schedule and believed a

       more predictable schedule would benefit C.M.


[19]   C.M. was three years old when the 2014 parenting time order was issued. C.M.

       was seven when Father’s petition to modify was filed. Since the 2014 order was

       entered, C.M. has started school, is involved in tumbling, and has a significant

       relationship with her now five-year-old half-brother. The parties live less than

       two miles from each other in the same school district, and spending significant

       time with both her Mother and Father is beneficial to C.M. Importantly, the

       trial court’s order modifying parenting time and custody takes into

       consideration the increased parenting time that Father has enjoyed with C.M.




       2
         Mother also argues that the trial court erred when it concluded that “[a]s to custody and parenting time, the
       parties have never followed the custody order.” Appellant’s App. p. 14. Mother points out that, absent special
       circumstances, Father generally enjoyed additional parenting time with C.M. because of her work schedule.
       While the record supports Mother’s argument, C.M. and Father have become accustomed to and benefited
       from the additional parenting time. Mother allowed Father additional parenting time out of necessity, but the
       additional parenting time was consistent on a weekly basis and substantially more than that awarded in the
       2014 order. Therefore, the trial court’s finding that the parties did not follow the custody order is supported
       by the evidence.

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019                 Page 10 of 14
       since the previous order was entered in 2014. See Rea v. Shroyer, 797 N.E.2d

       1178, 1182–83 (Ind. Ct. App. 2003).

[20]   After considering the evidence presented, we conclude that Father established a

       substantial change in circumstances in his wishes, C.M.’s age, and C.M.’s

       interaction and interrelationship with her Father and his family. Father also

       proved that shared physical custody was in C.M.’s best interests. The trial

       court’s order promotes more stability for the parties and C.M., ensures she will

       maintain her close relationship with both Mother and Father, and minimizes

       the time she will spend in daycare. For all of these reasons, we affirm the trial

       court’s order modifying its 2014 parenting time order and awarding the parties

       shared physical custody.3


                                      III. Modification of Child Support

[21]   Mother also argues that the trial court abused its discretion when it modified

       Father’s child support obligation. “Decisions regarding child support rest within

       the sound discretion of the trial court. Thus, we reverse child support

       determinations only if the trial court abused its discretion or made a




       3
         The trial court allowed the parties to submit proposed orders. In her brief, Mother also argues that the trial
       court erred when it adopted Father’s proposed order. The practice of accepting verbatim a party's proposed
       findings of fact “weakens our confidence as an appellate court that the findings are the result of considered
       judgment by the trial court.” Cook v. Whitsell-Sherman, 796 N.E.2d 271, 273 n.1 (Ind. 2003) (citing Prowell v.
       State, 741 N.E.2d 704, 708–09 (Ind. 2001)). However, the practice of adopting a party's proposed findings is
       not prohibited. Nickels v. Nickels, 834 N.E.2d 1091, 1096 (Ind. Ct. App. 2005). “Thus, although we by no
       means encourage the wholesale adoption of a party’s proposed findings and conclusions, the critical inquiry
       is whether such findings, as adopted by the court, are clearly erroneous.” Id. In this case, the trial court
       accepted many of Father’s proposed findings, but it did not adopt Father’s proposed findings verbatim, which
       demonstrates the court’s deliberative process and scrutiny of the parties’ proposed orders.

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019                  Page 11 of 14
       determination that is contrary to law.” Taylor v. Taylor, 42 N.E.3d 981, 986

       (Ind. Ct. App. 2015) (quotation omitted), trans. denied.


[22]   First, we address Mother’s argument that the trial court abused its discretion

       when it ordered Father to pay C.M.’s controlled expenses and gave Mother the

       parenting time credit. Mother observes that, as the custodial parent, she has

       historically paid C.M.’s controlled expenses and has taken C.M. to her medical

       appointments.


[23]   Indiana’s Child Support Guidelines (“Guidelines”) “are based on the

       assumption the child(ren) live in one household with primary physical custody

       in one parent who undertakes all of the spending on behalf of the child(ren).”

       Guideline 6, Analysis of Support Guidelines cmt. The Commentary to Indiana

       Child Support Guideline 6 defines “controlled expenses” as follows:


               This type of expense for the child(ren) is typically paid by the
               custodial parent and is not transferred or duplicated. Controlled
               expenses are items like clothing, education, school books and
               supplies, ordinary uninsured health care and personal care....
               “Education” expenses include ordinary costs assessed to all
               students, such as textbook rental, laboratory fees, and lunches,
               which should be paid by the custodial parent....

               The controlled expenses account for 15% of the cost of raising
               the child. The parenting time credit is based on the more time the
               parents share, the more expenses are duplicated and transferred.
               The controlled expenses are not shared and remain with the
               parent that does not get the parenting time credit. Controlled
               expenses are generally not a consideration unless there is equal
               parenting time. These categories of expenses are not pertinent for


       Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019   Page 12 of 14
               litigation. They are presented only to explain the factors used in
               developing the parenting time credit formula.


[24]   Mother historically paid the controlled expenses because she was the custodial

       parent. The parties are now sharing equal parenting time, and therefore, the

       trial court was required to designate one party as the parent responsible for the

       controlled expenses. Mother has not presented any evidence or argument that

       compels us to conclude that the court abused its discretion when it ordered

       Father to pay the controlled expenses.

[25]   Mother also argues, and Father agrees, that the trial court abused its discretion

       when it calculated the parties’ respective child support obligations and failed to

       give her credit for her previously born child who resides in her home. See Ind.

       Child Supp. Guideline 3(C). Therefore, we remand this case to the trial court to

       give Mother credit for her legal duty to support her previously born child and

       re-calculate Mother’s child support obligation accordingly.


                                                 Conclusion

[26]   The trial court acted within its discretion when it modified its previous

       parenting time order and awarded Mother and Father shared physical custody

       of C.M. However, the trial court erred when it failed to give Mother credit for

       her previously born child in its child support calculation. Therefore, we remand

       this case for the limited purpose of recalculating the parties’ child support

       obligations.




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019   Page 13 of 14
[27]   Affirmed in part, reversed in part, and remanded for proceedings consistent

       with this opinion.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-91 | September 12, 2019   Page 14 of 14
