                                                                              Feb 03 2015, 10:07 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
David W. Stone IV                                         Jane G. Cotton
Stone Law Office & Legal Research                         Anderson, Indiana
Anderson, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

R.B.,                                                     February 3, 2015

Appellant-Petitioner,                                     Court of Appeals Cause No.
                                                          48A05-1406-DR-275
        v.                                                Appeal from the Madison Circuit
                                                          Court.
                                                          The Honorable G. George Pancol,
K.S.,                                                     Judge.
Appellee-Respondent                                       Cause No. 48C02-0506-DR-478




Baker, Judge.




Court of Appeals of Indiana | Opinion 48A05-1406-DR-275 | February 3, 2015               Page 1 of 10
[1]   R.B. (Father) appeals the order of the trial court granting him legal custody of

      his children and ordering that parenting time be equally shared with K.S.

      (Mother). The order further specified that Father is to pay to Mother child

      support in the amount of $876 per week. Father argues that this award is

      clearly erroneous. Finding that the amount of child support was determined in

      accordance with the Indiana Child Support Guidelines and finding no other

      error, we affirm.


                                                      Facts
[2]   Father and Mother have two children who were born in 2001 and 2003. The

      couple divorced in 2006 and agreed to share legal and physical custody of the

      children. This agreement was accepted by the trial court in a dissolution decree

      issued on February 14, 2006. The arrangement worked until 2013, when

      Mother became concerned that so much of the children’s time was being taken

      up by activities that Father had them participating in. The children were so

      busy with baseball and basketball that Mother did not feel she had adequate

      time to spend with them. Mother wrote to Father asking him to limit the

      children’s activities. Father did not negotiate with Mother and, on June 26,

      2013, he filed a petition to modify, asking the trial court to grant him full legal

      and physical custody of the children. On July 8, 2013, Mother filed a counter

      petition, asking the trial court to grant her full legal and physical custody of the

      children.




      Court of Appeals of Indiana | Opinion 48A05-1406-DR-275 | February 3, 2015   Page 2 of 10
[3]   On March 31, 2014, following a hearing on the matter, the trial court issued an

      order stating: “The Court finds that the Father will have custody of the parties’

      minor children with the physical custody to be shared by the parties as has

      previously been done through the end of the school year.” Appellant’s App. p.

      12. The trial court also ordered that Father pay Mother child support in the

      amount of $876 per week. This support order was to be retroactive to the date

      Mother filed her petition. Father now appeals. The trial court has stayed the

      enforcement of the child support award pending the outcome of this appeal.


                                    Discussion and Decision
                                  I. The Trial Court’s Order
[4]   Initially, Father disputes the meaning of the trial court’s statement that “Father

      will have custody of the parties’ minor children with the physical custody to be

      shared by the parties as has previously been done . . . .” Id. Father argues that

      the trial court intended to grant him “full custody,” both legal and physical.

      Appellant’s Br. p. 11.


[5]   Father attempts to support this claim by pointing to a statement made by the

      trial court at hearing that he believes differed from the final order. However,

      the statement that Father points to is nearly identical to the language of the

      order. At hearing, the trial court stated: “. . . I am going to say today that full

      custody of the children be placed with the Father but at this point I am not going to

      change the physical custody arrangement . . . .” Appellant’s Br. p. 11 (emphasis



      Court of Appeals of Indiana | Opinion 48A05-1406-DR-275 | February 3, 2015   Page 3 of 10
      added). The parents’ prior physical custody arrangement gave each parent an

      approximately equal share of parenting time. Appellant’s App. p. 18.


[6]   Father argues that the trial court’s use of the phrase “full custody” in the first

      clause of the sentence “entail[s] both legal and physical custody.” Appellant’s

      Br. p. 12. However, if Father means to assert that the trial court intended to

      alter the prior parenting time arrangement, he is simply ignoring the second

      clause of the sentence.


[7]   The relevant statutes as well as the Indiana Child Support Guidelines anticipate

      that the trial court is to determine the legal custody of the children and then

      make an allocation of parenting time. This is precisely what the trial court did.

      Its order, as well as its statements at hearing, make clear that Father is to have

      legal custody and both parents are to have an equal share of parenting time.

      The order needs no clarification.


                  II. Child Support Award and Grant v. Hager
[8]   Father next takes issue with the trial court’s award of child support. Reversal of

      a trial court’s child support order is merited only where the award is clearly

      erroneous, meaning that the determination is clearly against the logic and effect

      of the facts and circumstances before the court. In re Paternity of Jo.J., 992

      N.E.2d 760, 766 (Ind. Ct. App. 2013).




      Court of Appeals of Indiana | Opinion 48A05-1406-DR-275 | February 3, 2015   Page 4 of 10
[9]    The trial court used a child support worksheet submitted by Mother to calculate

       child support.1 The worksheet showed a great disparity between the parents’

       weekly incomes. Mother’s share amounted to only 2.6% of the parents’ total

       weekly income. This percentage was applied to the parents’ total child support

       obligation to determine Mother’s share of child support, which came to $43.94

       per week. Mother would ordinarily have paid this amount to Father. But

       because she was to have the children for 181 to 183 days out of the year, she

       received a parenting time credit of $1,019.48 per week. The parenting time

       credit thus exceeded Mother’s weekly child support obligation by $975.54,

       meaning that Father would now pay weekly child support to Mother. The trial

       court reduced the award to $876 per week in recognition of the fact that Father

       was “ordered to pay all extracurricular activities for the children, school

       expenses, and all medical, dental, and optical expenses that are not covered by

       insurance.” Appellant’s App. p. 12.


[10]   Father observes that this is a situation in which child support is flowing from a

       custodial parent to a non-custodial parent. In 2007, our Supreme Court

       interpreted a previous version of the Indiana Child Support Guidelines and

       concluded that the Guidelines did not allow for child support to flow from a

       custodial to a non-custodial parent unless the trial court found that it would be

       unjust to do otherwise and made a written finding to that effect in its order.




       1
        Father did not submit a worksheet, nor does he dispute the accuracy of the figures or calculations that
       appear on Mother’s worksheet.

       Court of Appeals of Indiana | Opinion 48A05-1406-DR-275 | February 3, 2015                        Page 5 of 10
       Grant v. Hager, 868 N.E.2d 801, 803-04 (Ind. 2007). Thus, if the trial court

       ordered a custodial parent to pay child support to a non-custodial parent, this

       was considered a deviation from the Guidelines requiring explanation pursuant

       to Indiana Child Support Rule 3.2 Here, because the child support flows from

       the custodial to the non-custodial parent, Father argues that the trial court was

       required to make a written finding that it would be unjust to order otherwise.


[11]   However, in 2010, following its decision in Grant, our Supreme Court adopted

       amended Guidelines. The 2010 amendments to the Guidelines make clear that

       trial courts no longer need to offer an explanation before ordering custodial

       parents to pay child support to non-custodial parents. The 2010 amendments

       added the following sentence to Guideline 1: “Absent grounds for deviation,

       the custodial parent should be required to make monetary payments of child

       support, if application of the parenting time credit would so require.” A

       sentence added to Guideline 3F is even more straightforward:

               When there is near equal parenting time, and the custodial parent has
               significantly higher income than the non-custodial parent, application
               of the parenting time credit should result in an order for the child
               support to be paid from a custodial parent to a non-custodial parent,
               absent grounds for a deviation.


[12]   Therefore, an order of child support from a custodial to a non-custodial parent

       is no longer considered a deviation requiring explanation and Grant’s




       2
         “When the court deviates from the Guideline amount, the order or decree should also include the reason or
       reasons for deviation.” Child Supp. R. 3.

       Court of Appeals of Indiana | Opinion 48A05-1406-DR-275 | February 3, 2015                     Page 6 of 10
       requirement that the trial court make a written finding explaining such a result

       no longer holds.


                         III. Amount of Child Support Award
[13]   Father next argues that the amount of child support awarded by the trial court

       is excessive. The trial court determined the amount of child support through

       application of the Guidelines and, therefore, there is a rebuttable presumption

       that this is the correct amount. Child Supp. Rule 2. Father does not argue that

       the trial court erred in its application of the Guidelines, only that the resulting

       award is “unjust and clearly erroneous.” Appellant’s Br. p. 6.


[14]   The Guidelines are designed to help trial courts fashion child support awards

       that provide children, as closely as possible, with the same standard of living

       they would have enjoyed had the marriage not been dissolved. Payton v. Payton,

       847 N.E.2d 251, 253 (Ind. Ct. App. 2006). Here, the children were accustomed

       to a very high standard of living. The child support worksheet utilized by the

       trial court listed Father’s weekly income as $15,000. Appellant’s App. p. 13.

       Father does not dispute the accuracy of this amount.


[15]   Instead, Father asserts that Mother could not possibly need the amount of

       money that she has been awarded. In support of his argument, Father cites

       Bussert v. Bussert, in which this Court held that an award of child support which

       leveraged a mother’s standard of living at the expense of a father’s standard of

       living was contrary to public policy. 677 N.E.2d 68, 71 (Ind. Ct. App. 1997).

       However, in Bussert, the Court was careful to note that the amount of support

       Court of Appeals of Indiana | Opinion 48A05-1406-DR-275 | February 3, 2015   Page 7 of 10
       awarded was higher than the guideline amount. Id. In this case, the amount of

       support awarded is lower than the guideline amount. Furthermore, Father does

       not argue that his standard of living will decline as a result of the award.

       Appellant’s Br. p. 8.


[16]   Father also attempts to show that the award is excessive by making reference to

       various categories of expenses that the Guidelines consider in order to help

       explain the development of the parenting time credit formula. Father focuses

       on two types of expenses—transferred expenses (food and transportation) and

       duplicated fixed expenses (housing)—which the guidelines expect a parent in

       Mother’s situation to incur. Father claims that Mother could not need as much

       money as she has been awarded to cover these expenses.


[17]   First, we note that the Guidelines explicitly state that these categories are not

       relevant to litigation. Ind. Child Support Guideline 6. They are intended only

       to explain the general types of expenses the parenting time credit formula seeks

       to account for. Id. Second, Father supports his argument with figures regarding

       the value of Mother’s residence that were not made part of the record before the

       trial court. Appellant’s Br. p. 8. We reiterate that, on appeal, we consider

       whether the trial court’s determination is clearly against the logic and effect of

       the facts and circumstances that were before the court. In re Paternity of Jo.J.,




       Court of Appeals of Indiana | Opinion 48A05-1406-DR-275 | February 3, 2015   Page 8 of 10
       992 N.E.2d at 766. We decline to base our judgment on figures that Father

       failed to bring to the trial court’s attention.3


[18]   Not only was the award calculated pursuant to the Guidelines, but it is, in fact,

       lower than the amount called for by the Guidelines. The amount is by no

       means unheard of. In Eppler v. Eppler, this Court affirmed a child support award

       of $900 per week even though this award was $275 higher than the amount

       called for by the Guidelines. 837 N.E.2d 167, 175 (Ind. Ct. App. 2005). The

       Court found that the award amounted to approximately seventeen percent of

       Eppler’s annual income. Id. The award at issue in this case amounts to less

       than six percent of Father’s weekly income.4 Under these circumstances, the

       trial court was well within its discretion to award $876 per week in child

       support to Mother.5




       3
         It is also unclear how Father arrived at some of the figures he presents in his brief. For example, speaking
       of Mother’s current residence, Father states: “The property is assessed at $146,200. Although it is a nice
       residence the fixed expenses for it could not be over $88,000 a year which is what they would have to be to
       avoid the child support being a windfall.” Appellant’s Br. p. 8. Father fails to explain how he arrived at this
       $88,000 figure or how he defines “windfall.” As such, even if our standard of review permitted us to consider
       this information, we can’t make heads or tails of it.


       4
        This was calculated by dividing Father’s child support obligation of $876 per week by his income of $15,000
       per week.


       5
         Father also argues that the trial court erred in making the award retroactive to July 8, 2013, as Mother had
       only had the children roughly 38% of the time from January 1, 2013, to September 30, 2013 and the award
       gives Mother a parenting time credit for a full half of the year. However, as the record does not indicate the
       breakdown of days for the period between July 8, 2013, and September 30, 2013, nor does it include data for
       the remainder of 2013, we cannot determine whether the trial court’s decision to award retroactive support
       for that period was clearly erroneous.

       Court of Appeals of Indiana | Opinion 48A05-1406-DR-275 | February 3, 2015                        Page 9 of 10
                                           IV. Attorney Fees
[19]   Finally, Mother requests appellate attorney fees pursuant to Indiana Appellate

       Rule 66(E), which provides: “The Court may assess damages if an appeal,

       petition, or motion, or response, is frivolous or in bad faith. Damages shall be

       in the Court’s discretion and may include attorney’s fees.” While we have

       decided against Father, we do not believe that this appeal was frivolous or in

       bad faith. In particular, this Court had yet to address the relevance of Grant v.

       Hager subsequent to the 2010 amendments to the Guidelines. Consequently, we

       decline to order Father to pay Mother’s appellate attorney fees.


[20]   The judgment of the trial court is affirmed and the parties are directed to

       proceed pursuant to the trial court’s order.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 48A05-1406-DR-275 | February 3, 2015   Page 10 of 10
