MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Apr 03 2018, 5:53 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE-
Trenna S. Parker                                         STATE OF INDIANA
Trenna S. Parker Law Office, P.C.                        Curtis T. Hill, Jr.
Noblesville, Indiana                                     Attorney General of Indiana
                                                         Andrea E. Rahman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Marriage of:                                   April 3, 2018

William Lynch,                                           Court of Appeals Case No.
                                                         29A02-1710-DR-2484
Appellant-Petitioner,
                                                         Appeal from the Hamilton
        v.                                               Superior Court
                                                         The Honorable Jonathan M.
Lisa Lynch,                                              Brown, Judge
Appellee-Respondent,                                     The Honorable Katherine M.
and                                                      Varie, Master Commissioner

State of Indiana,                                        Trial Court Cause No.
                                                         29D02-1103-DR-2830
Appellee-Intervenor.



Najam, Judge.


Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018            Page 1 of 16
                                            Statement of the Case
[1]   William Lynch (“Father”) appeals the trial court’s order modifying his child

      support obligation.1 Father raises two issues for our review, which we restate as

      follows:


                1.        Whether the trial court erred when it calculated Father’s
                          current child support obligation.

                2.        Whether the trial court erred when it interpreted the
                          parties’ Agreed Entry and found that the modification of
                          the child support order was retroactive to the date of
                          Father’s motion to modify.


[2]   We affirm.


                                     Facts and Procedural History
[3]   Father and Lisa Lynch (“Mother”) were married on November 28, 1992.

      During their marriage, Father and Mother had three children: A.L., born

      August 27, 1994; M.L., born February 12, 1997; and J.L., born October 1,

      2003. On March 29, 2011, Father filed a petition for dissolution of the

      marriage. The parties entered into a mediated settlement agreement, which the

      trial court incorporated into its dissolution decree issued on February 17, 2012.


[4]   The settlement agreement provided that Father and Mother would have joint

      legal custody of the children but that Mother would have physical custody,




      1
          Mother does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018   Page 2 of 16
      subject to Father’s parenting time with M.L. and J.L. Father also agreed to pay

      $322 per week in child support, which he would pay directly to Mother, and to

      maintain health insurance for the children. Subsequently, Mother assigned the

      enforcement of her support rights to the State. On March 14, 2013, the State

      intervened and filed a petition to redirect payments and determine arrears.


[5]   On August 29, Father filed a petition for emancipation of A.L. Thereafter,

      Father and Mother entered into a Mediated Agreed Entry (“Agreed Entry”),

      which the trial court approved. The Agreed Entry modified certain provisions

      of the original settlement agreement and detailed the new amount of child

      support that Father was required to pay for M.L. and J.L.


[6]   In relevant part, the Agreed Entry provided as follows:


              1. The parties’ daughter, [A.L.], is emancipated for child support
              purposes as of August 27, 2013[,] and Father’s weekly child
              support obligation is modified to $225.00 . . . . Father will pay
              child support monthly in the amount of $975.00 beginning June
              1, 2014[,] and on the first of each month thereafter until future
              modification.


                                                     * * *


              3. The parties’ daughter, [M.L.], will be 19 years of age on
              February 12, 2016[,] and emancipated for child support purposes
              by operation of law, unless statutory reasons exist prior to that
              date which would prevent her emancipation for child support
              purposes.


      Appellant’s App. Vol. III at 18.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018   Page 3 of 16
[7]   On May 24, 2017, Father filed a petition for emancipation of M.L. and a

      motion to modify his child support obligation. In that motion, Father requested

      that the order modifying his child support payments be applied retroactively to

      February 12, 2016, M.L.’s nineteenth birthday. On June 15, 2017, Father,

      Mother, and the State entered into an agreement to temporarily modify Father’s

      child support obligation. The parties agreed that, by operation of law, M.L.

      was emancipated for child support purposes; that Father shall pay $166 per

      week in child support to Mother; and that Father shall receive credit for zero

      annual overnight visits with J.L. The parties also agreed that that modification

      was temporary and that the retroactivity of the final order was to be determined

      at a final modification hearing.


[8]   The trial court held the final modification hearing on August 30, 2017.

      Following the hearing, the court entered its order modifying child support. In

      that order, the court found as follows:


              a.     Father is employed at SKJODT-Barrett Contract
              Packaging, LLC where he earns a gross weekly income of
              $1,226.00. Additionally, Father receives regular income from
              military benefits in the amount of $102.00 per week. The court
              finds that Father’s gross weekly income for child support
              purposes is $1,328.00.


              b.     Mother was employed for approximately three years at
              Frost Todd Brown [sic] earning $1,095 per week. In July 2015,
              she voluntarily left that employment to work part-time and to
              care for her children and step-children. From August 2015 to
              early June 2017, Mother was employed part-time with GO
              Company where she earned $18.00 per hour. According to

      Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018   Page 4 of 16
        Mother’s 2016 federal tax return, her gross 2016 wages from GO
        Company were $24,501.00 or $471.00 per week. From April
        2017 until June 2017, Mother worked part-time, 15 hours per
        week, at TPPN where she earned $20.00 per hour. Mother
        transitioned into full-time employment with TPPN in July 2017.
        Mother earns $20.00 per hour and works 35-38 hours per week.
        The Court finds that Mother’s gross weekly income for child
        support purposes is $760.00 ($20/hour * 38 hours/week).


        c.     Father incurs a weekly health insurance premium for the
        child in the amount of $6.70 per week. The foregoing is based on
        the following:


                 i. Father maintains health, dental, and vision insurance for
                 the child.


                 ii. Father’s health, dental, and vision plans cover himself,
                 his spouse and four children (including [J.L.]).


                 iii. Health insurance premium:


                         1. Father’s health insurance premium is $142.90
                            biweekly for a family plan.


                         2. Father’s health insurance premium would be
                            $98.71 biweekly for him and his spouse.


                         3. Father’s weekly health insurance premium for
                            [J.L.] is $5.52 = (($142.90 - $98.71)) / 4 children
                            x 26 pay periods/52 weeks).


                 iv. Dental insurance premium:



Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018   Page 5 of 16
                         1. Father’s dental insurance premium is $12.66
                            biweekly for a family plan.


                         2. Father’s dental insurance premium would be
                            $6.98 biweekly for him and his spouse.


                         3. Father’s weekly dental insurance premium for
                            [J.L.] is $0.71 = (($12.66 - $6.98)) / 4 children x
                            26 pay periods/52 weeks).


                 v. Vision insurance premium:


                         1. Father’s vision insurance premium is $9.51
                            biweekly for a family plan.


                         2. Father’s [vision] insurance premium would be
                            $5.78 biweekly for him and his spouse.


                         3. Father’s weekly [vision] insurance premium for
                            [J.L.] is $0.47 = (($9.51 - $5.78)) / 4 children x
                            26 pay periods/52 weeks).


        d.     The Mediated Agreed Entry included 73 overnights for
        Father’s parenting time credit. In the past year, Father has not
        exercised parenting time with the minor child, has not requested
        parenting time since Christmas break in 2015 and has not filed a
        petition with the Court to secure parenting time. Consequently,
        Father is given credit for 0 annual overnights.


Id. at 28-29. Based on those findings, the court modified the amount Father

was required to pay in child support to $171 per week.




Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018   Page 6 of 16
[9]    The trial court also found that the “language of the Mediated Agreed Entry is

       unambiguous” and that “[t]o modify child support retroactively to [M.L’s]

       emancipation date pursuant to paragraph three of the Mediated Agreed Entry is

       to ignore the clear and unambiguous language of paragraph one requiring

       Father to pay his monthly child support obligation until further modification.” Id.

       at 28 (emphasis in original). As such, the trial court found “that the

       modification is retroactive to the date of the filing of the Motion to Modify,

       May 24, 2017[.]” Id. This appeal ensued.


                                      Discussion and Decision
                              Issue One: Order Modifying Child Support

                                              Standard of Review

[10]   Father first appeals the trial court’s order that modified the amount of his child

       support obligation. Where, as here, the order included specific findings of fact

       and conclusions of law our standard of review is well-settled.


               The conclusions of law are reviewed de novo. Johnson v. Johnson,
               920 N.E.2d 253, 256 (Ind. 2010). But pursuant to Trial Rule
               52(A), we “shall not set aside the findings or judgment unless
               clearly erroneous, and due regard shall be given to the
               opportunity of the trial court to judge the credibility of the
               witnesses.” Factual findings are only clearly erroneous where
               there is no support for them in the record, either directly or by
               inference; a judgment is only clearly erroneous when it applies an
               improper legal standard to proper facts. Johnson v. Wysocki, 990
               N.E.2d 456, 460 (Ind. 2013). “In either case, we must be left
               ‘with the firm conviction that a mistake has been made.’” Id.
               (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.1997)).


       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018   Page 7 of 16
       Johnson v. Johnson, 999 N.E.2d 56, 59 (Ind. 2013).


[11]   Father specifically contends that the trial court erred when it calculated his

       child support obligation because the trial court: failed to find that Mother was

       voluntarily underemployed, incorrectly calculated his credit for health

       insurance premiums, and failed to give him credit for parenting time. We

       address each argument in turn.


                                             Mother’s Employment

[12]   Father contends that the trial court erred when it calculated his child support

       obligation because it should have found that Mother was underemployed and

       imputed income to her. Specifically, Father asserts that the trial court’s finding

       that Mother left her full-time employment on the staff of an Indianapolis law

       firm to work part-time in order to care for her children and stepchildren is

       clearly erroneous because Mother “never testified that she needed to ‘care’ for

       her children.” Appellant’s Br. at 14. But Mother testified that she left her

       higher-paying job because she “needed to be closer to home and more available

       for my three children as well as my two stepchildren who were all living with us

       at the time.” Tr. Vol. II at 15. Thus, there is evidence in the record to support

       the trial court’s finding, and the trial court’s finding is not clearly erroneous.


[13]   Father also contends that, even if the trial court’s finding is supported by the

       record, the court still erred when it failed to find that Mother was voluntarily

       underemployed because Mother did not dispute that she is capable of earning a

       higher income and because Mother “failed to establish that she sought


       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018   Page 8 of 16
       employment and was unable to secure employment at the rate she was making

       before voluntarily being underemployed.” Appellant’s Br. at 14. But our

       Supreme Court has explained that, “While legitimate reasons may exist for a

       parent to leave one position and take a lower paying position other than to

       avoid child support obligations, this is a matter entrusted to the trial court and

       will be reversed only for an abuse of discretion.” Bojrab v. Bojrab, 810 N.E.2d

       1008, 1015 (Ind. 2004). Here, Mother testified that she left her full-time job at

       Frost Brown Todd in order to be closer to home and more available for her

       children and stepchildren. She further testified that, after she left that job in

       July 2015, she never asked the Court for a modification of her child support

       obligation. As such, Mother provided a legitimate reason to leave her higher-

       paying job, and the evidence supports the conclusion that she left that job for

       reasons other than to avoid her child support obligation. We cannot say that

       the trial court abused its discretion when it did not find that Mother was

       voluntarily underemployed.


[14]   Next, to the extent that Father contends on appeal that the trial court should

       have imputed income to Mother based on her fiancé’s income, we reject his

       contention. Indiana Child Support Guideline 3(A)(d) provides that


               regular and continuing payments made by a family member,
               subsequent spouse, roommate or live-in friend that reduce the
               parent’s costs for rent, utilities, or groceries, may be the basis for
               imputing income. If there were specific living expenses being
               paid by a parent which are now being regularly and continually
               paid by that parent’s current spouse or a third party, the assumed
               expenses may be considered imputed income to the parent

       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018   Page 9 of 16
               receiving the benefit. The marriage of a parent to a spouse with
               sufficient affluence to obviate the necessity for the parent to work
               may give rise to a situation where either potential income or
               imputed income or both should be considered in arriving at gross
               income.


[15]   While Father made some reference to imputing income to Mother based on her

       fiancé’s income, no cogent argument was made such that it was an abuse of the

       trial court’s discretion to hold otherwise. Therefore, the trial court did not err

       when it did not find that Mother is voluntarily underemployed and when it did

       not impute income to her.


                                         Health Insurance Premiums

[16]   Father also asserts that the trial court erred when it calculated his credit for

       paying J.L.’s health insurance premiums. Indiana Child Support Guideline

       3(E)(2) provides that “[t]he weekly cost of health insurance premiums for the

       child(ren) should be added to the basic obligation whenever either parent

       actually incurs the premium expense or a portion of the expense.” And the

       commentary to the guidelines further advises that,


               [i]n determining the amount to be added, only the amount of the
               insurance cost attributable to the child(ren) subject of the child
               support order shall be included, such as the difference between
               the cost of insuring a single party versus the cost of family
               coverage. In circumstances where coverage is applicable to
               persons other than the child(ren) subject of the child support
               order, such as other child(ren) and/or a subsequent spouse, the
               total cost of the insurance premium shall be prorated by the
               number of persons covered to determine a per person cost.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018   Page 10 of 16
       Ind. Child Support Guideline 3(E)(2) cmt.


[17]   Father specifically contends that the trial court erred when it deducted the cost

       of the employee plus spouse plan from the cost of the family plan. Instead,

       Father asserts that the trial court should have deducted the cost of the

       individual plan from the cost of the family plan because he would be “entitled

       to claim the full difference between a family plan and a single employee plan as

       a health insurance credit for J.L.” if he did not cover his wife, stepson, or

       emancipated children. Appellant’s Br. at 17. He also contends that “including

       the emancipated children of the marriage on the pro-rated amount was

       erroneous.” Id.


[18]   The Indiana Supreme Court has held that, when reviewing a trial court’s

       calculation of a credit for health insurance premiums, “our standard of review is

       flexible enough to permit the trial judge to fashion child support orders that are

       tailored to the circumstances of the particular case before them [sic] and

       consequently reflect their best judgment.” Johnson, 999 N.E.2d at 60. And

       even though there may be more than one way to calculate a credit for health

       insurance premiums that has merit, based on our flexible standard of review, we

       will uphold the trial court’s calculation if “the trial court fashioned a solution

       that it believed was equitable to the parties and we are not left with a firm

       conviction that a mistake was made in doing so.” Id.


[19]   Here, while Father’s calculation has some merit, so does the trial court’s

       calculation. The trial court calculated a child support order tailored to the


       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018   Page 11 of 16
       circumstances of this particular case, which includes the fact that Father does

       not pay a health insurance premium as a single person. And the trial court’s

       finding is supported by the record. Father acknowledged that he insures not

       only J.L, but also his wife, his two emancipated daughters, and his stepson.

       Thus, the trial court fashioned an equitable solution when it deducted the cost

       of the employee plus spouse plan from the cost of the family plan and when it

       included the emancipated children in the prorated costs. And we are not left

       with a firm conviction that a mistake was made. We therefore affirm the trial

       court’s order with respect to the credit Father received for his health insurance

       premium costs.


                                                 Parenting Time

[20]   Father next contends that the trial court erred when it failed to credit him with

       any parenting time for overnight visits. Indiana Child Support Guideline 6

       provides that “[a] credit should be awarded for the number of overnights each

       year that the child(ren) spend with the noncustodial parent.” The rationale

       behind the parenting time credit is that overnight visits with the noncustodial

       parent may alter some of the financial burden on the custodial and noncustodial

       parents in caring for the children. Young v. Young, 891 N.E.2d 1045, 1048 (Ind.

       2008).


[21]   We first note that Father does not dispute the trial court’s finding that he has

       not exercised parenting time with J.L. since Christmas of 2015. Instead, Father

       asserts that “the effect of the trial court’s ruling will be to deny him a parenting

       time credit” if he exercises his parenting time again. Appellant’s Br. at 18. But
       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018   Page 12 of 16
       we cannot agree. While a “petitioner seeking modification of a child support

       order must still meet either the ‘substantial and continuing’ change test or the

       twenty percent change test to be successful[,]” “the petitioner may apply the

       parenting time credit to attempt to fulfill either test.” Naville v. Naville, 818

       N.E.2d 552, 556 (Ind. Ct. App. 2004). We therefore agree with the State that, if

       Father exercises his parenting time with J.L. in the future, he can use the

       parenting time credit to attempt to prove a substantial and continuing change or

       a twenty percent change in his child support obligation. See id.


[22]   Further, Father testified that the last time he requested an overnight visit with

       J.L. was “during a Christmas break in 2015.” Tr. Vol. II at 14. Thus, the

       evidence supports the trial court’s finding that Father has not exercised

       parenting time, and the finding supports the judgment. The trial court did not

       err when it did not credit Father with any overnight visits.2


[23]   In sum, the trial court did not err when it did not find that Mother was

       underemployed, when it calculated Father’s credit for health insurance

       premiums, and when it did not credit Father with any overnight visits. As such,

       we affirm the trial court’s order with respect to the calculation of Father’s child

       support obligation.




       2
         Father also asserts that the trial court was without jurisdiction to modify his parenting time because
       “there was no pending modification of his parenting time with the parties’ youngest child[.]”
       Appellant’s Br. at 17. But, in its order, the trial court did not modify Father’s parenting time. It simply
       removed the credit Father would have received towards his child support obligation had he exercised
       his parenting time.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018          Page 13 of 16
                                          Issue Two: Agreed Entry

[24]   Father next asserts that the trial court erred when it interpreted the Agreed

       Entry, which modified the parties’ original settlement agreement. “[M]arital

       settlement agreements are contracts, and we review questions of contract

       interpretation de novo.” Schwartz v. Heeter, 994 N.E.2d 1102, 1105 (Ind. 2013)

       (internal citation omitted). Father specifically contends that the trial court erred

       when it found that the language of the Agreed Entry was unambiguous and that

       the modification of his child support obligation was retroactive to the date of his

       motion to modify child support instead of the date of M.L.’s nineteenth

       birthday, as provided in the Agreed Entry.


[25]   Father concedes that “generally, a trial court is without the ability to modify a

       child support obligation retroactive to a date prior to the filing of a petition for

       modification.” Appellant’s Br. at 22. But he asserts that paragraph three of the

       Agreed Entry, which stated that M.L. will be emancipated by operation of law

       on February 12, 2016, “relieved him of the obligation to file for a modification”

       because that paragraph “specifically provided for an automatic modification[.]”

       Appellant’s Br. at 20.


[26]   However, the commentary to the Indiana Child Support Guidelines provides:


               In child support orders issued under these Guidelines, support
               amounts for two or more children, are stated as an in gross or




       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018   Page 14 of 16
               total amount rather than on a per child basis.[3] Absent judicial
               modification of the order, the total obligation will not decrease when
               the oldest child reaches nineteen (19) years of age, or the child is
               emancipated after other events. Parents should seek to modify child
               support orders when the legal obligation to pay child support terminates
               for any child or any child is emancipated.


       Child Supp. G. 4 cmt. (emphasis added). Further, “when a court enters an

       order in gross, that obligation similarly continues until the order is modified

       and/or set aside, or all the children are emancipated, or all the children reach

       the age of twenty-one.” Whited v. Whited, 859 N.E.2d 657, 661 (Ind. 2007).


[27]   We agree with Father that the Agreed Entry provided that M.L. would be

       emancipated as a matter of law on February 12, 2016. But, absent judicial

       modification, Father’s total obligation did not decrease on that date. Father

       was still required to seek judicial modification of the child support order when

       his legal obligation to pay terminated upon M.L.’s emancipation. See Child

       Supp. G. 4 cmt.


[28]   Father also contends that the Agreed Entry was a “self-adjusting modification”

       that was modified on February 12, 2016. Appellant’s Br. at 23. But we cannot

       agree. Even though the Agreed Entry provided a date on which M.L. was to be

       emancipated, it did not provide any information regarding the new amount

       Father would be required to pay in order to support J.L. As such, we agree




       3
        The parties do not dispute that the amount Father was required to pay in child support pursuant to the
       Agreed Entry was an in gross amount for both M.L. and J.L.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018          Page 15 of 16
       with the trial court that the Agreed Entry required Father “to pay his monthly

       child support obligation until further modification.” Appellant’s App. Vol. III at

       28 (emphasis in original).


[29]   And Father did not seek judicial modification of the child support order until

       May 24, 2017. It is well-settled that “the trial court has the discretionary power

       to make a modification for child support relate back to the date the petition to

       modify was filed or any date thereafter chosen by the trial court.” Laux v. Ferry,

       34 N.E.3d 690, 695 (Ind. Ct. App. 2015) (quoting Hatmaker v. Hatmaker, 998

       N.E.2d 758, 763 (Ind. Ct. App. 2013)). And, here, the trial court made the

       modification of the child support order relate back to the date Father filed his

       motion to modify. As such, the trial court did not err when it interpreted the

       parties’ Agreed Entry and made the modification for child support retroactive

       only to the date of Father’s motion for modification.


[30]   In conclusion, the trial court did not err when it calculated Father’s current

       child support obligation or when it made the modification of child support

       retroactive to the date Father filed is motion for modification. We therefore

       affirm the trial court’s order.


[31]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-DR-2484 | April 3, 2018   Page 16 of 16
