MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                   Feb 15 2016, 9:11 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Dan J. May                                               Briane M. House
Kokomo, Indiana                                          R. Daniel Faust
                                                         House Reynolds & Faust, LLP
                                                         Carmel, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jamie Lynn Vore,                                         February 15, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         34A02-1505-DR-264
        v.                                               Appeal from the Howard Superior
                                                         Court
Jeffrey Lee Vore,                                        The Honorable Brant J. Parry,
Appellee-Petitioner                                      Judge
                                                         Trial Court Cause No.
                                                         34D02-1201-DR-86



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1505-DR-264 | February 15, 2016   Page 1 of 16
                               Case Summary and Issues
[1]   Jamie Vore (“Mother”) and Jeffrey Vore (“Father”) were divorced in 2013.

      Mother received primary custody of the couple’s minor child (“Child”), and

      Father was ordered to pay child support. Thereafter, Mother filed a petition to

      modify child support, and Father filed a petition to modify support, custody,

      and parenting time. After a hearing, the trial court modified custody, awarding

      primary custody to Father. In addition, the trial court modified Father’s child

      support obligation effective as of the date of Mother’s petition, ordered the

      arrearage be paid into a trust for Child, and terminated Father’s child support

      obligation effective immediately. Mother appeals, raising several issues for our

      review, which we consolidate and restate as: 1) whether the trial court abused

      its discretion in modifying child custody; 2) whether the trial court abused its

      discretion when calculating Father’s income for child support purposes; 3)

      whether the trial court abused its discretion in terminating Father’s child

      support obligation; and 4) whether the trial court abused its discretion in

      ordering Father pay his arrearage into a trust for Child. As to the first three

      issues, we conclude the trial court did not err. However, we also conclude the

      trial court abused its discretion in ordering Father pay the arrearage into a trust

      for Child. We therefore affirm in part and reverse in part.



                            Facts and Procedural History
[2]   On June 11, 2013, the trial court issued a written decree dissolving Mother’s

      and Father’s marriage. As a part of the decree, the trial court awarded Mother

      Court of Appeals of Indiana | Memorandum Decision 34A02-1505-DR-264 | February 15, 2016   Page 2 of 16
      primary custody of Child, and Father was awarded parenting time with Child

      every weekend and for one-half of Child’s summer break from school. The trial

      court also ordered Father to pay $100 per week in child support. Nearly a

      month later, Father won $1,000,000 in the Hoosier Lottery. After paying taxes

      on his winnings, Father received around $540,000.


[3]   On July 8, 2013, less than a week after Father won the lottery, Mother filed a

      petition to modify child support. Mother later filed a Supplemental and Second

      Petition to Modify Support and Father filed a petition to modify child custody,

      support, and parenting time.


[4]   On March 9, 2015, the trial court heard argument on the parties’ petitions.

      Child submitted to an in camera interview where she indicated a desire to live

      with Father. Two weeks later, the trial court entered its findings of fact and

      conclusions—made at Mother’s request—awarding Father primary custody,

      modifying Father’s child support obligation to $259 a week retroactive to July

      8, 2013, terminating Father’s child support obligation to Mother, and ordering

      Father to pay the arrearage into a trust for Child. Mother now appeals.

      Additional facts will be added as necessary.



                                Discussion and Decision
                                     I. Standard of Review
[5]   “Modifications of child custody, parenting time, and child support are all

      reviewed for abuse of discretion. We grant latitude and deference to our trial

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      judges in family law matters.” Miller v. Carpenter, 965 N.E.2d 104, 108 (Ind. Ct.

      App. 2012) (citations omitted). On appeal, we neither reweigh evidence nor

      reassess witness credibility. Id. Rather, we consider only the evidence most

      favorable to the judgment and the inferences flowing therefrom. Id.


[6]   Where, as here, the trial court issues findings of fact and conclusions at the

      request of one of the parties, we apply a two-tiered standard of review. Maddux

      v Maddux, 40 N.E.3d 971, 974 (Ind. Ct. App. 2015). First, we determine

      whether the evidence supports the findings, and second, whether the findings

      support the judgment. Id. The trial court’s findings are controlling unless the

      record includes no facts to support them either directly or by inference. Id.

      Legal conclusions, however, are reviewed de novo. Id. at 975. We set aside a

      trial court’s judgment only if it is clearly erroneous. Id. at 974. “Clear error

      occurs when our review of the evidence most favorable to the judgment leaves

      us firmly convinced that a mistake has been made.” Id. at 974-75.


                                         II. Child Custody
[7]   Mother argues the trial court’s decision to modify custody was clearly

      erroneous. Specifically, Mother contends the trial court erred in failing to take

      into account Father drinks alcohol and Child only wanted to live with Father

      because Father was less strict. Father argues Mother’s position invites us to

      reweigh the evidence, and in any event, the findings supports the trial court’s

      determination. We agree with Father.




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[8]   A court may not modify a child custody order unless the modification is in the

      best interests of the child, Ind. Code § 31-17-2-21(a)(1), and there is a

      substantial change in at least one of the following factors:


              (1) The age and sex of the child.
              (2) The wishes of the child’s parent or 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:
                     (A) the child’s parent or parents;
                     (B) the child’s sibling; and
                     (C) any other person who may significantly affect the
              child’s best interests.
              (5) The child’s adjustment to the child’s:
                     (A) home;
                     (B) school; and
                     (C) 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 . . . .


      Ind. Code § 31-17-2-21(a)(2); Ind. Code § 31-17-2-8. The court shall also

      consider these factors in determining whether the modification is in the best

      interests of the child. Ind. Code § 31-17-2-21(b).


[9]   Here, the trial court heard evidence of Mother’s and Father’s wishes, and the

      trial court conducted an in camera interview with Child. In its order, the trial

      court made the following relevant findings of fact:




      Court of Appeals of Indiana | Memorandum Decision 34A02-1505-DR-264 | February 15, 2016   Page 5 of 16
        1. Jeffrey Vore and Jamie Vore are the parents of one (1) minor
        child, . . . age 15.
        ***
        7. [Father] lives in a three bedroom home by himself. The child
        has her own bedroom in the home.
        ***
        9. [Mother] lives in [a] three bedroom home with 5 other
        individuals. [Mother’s two] children . . . reside in the home.
        [Mother’s] boyfriend, Bob Reed, resides in the home. Tasha
        Allen . . . resides in the home. “Kim”, age 21 and not related to
        [Mother], also lives in the home.
        10. “Kim” lives with [Mother] because she is homeless. “Kim”
        is bi-polar and [Mother] helps her with her medication.
        ***
        13. [Child] attends Kokomo High School. Until this school
        year, [Child] had done very well academically. However, on her
        last grading period, [Child] received two very poor marks.
        14. [Child’s] teachers have told [Mother] that [Child’s] failure to
        complete her homework is her main problem at school. [Mother]
        has indicated that she is unable to assist [Child] with her
        homework due to the difficulty of the subject matter. Similarly,
        [Father] is also unable to assist [Child] with her homework.
        ***
        17. [Mother] has not been employed since 2009. In 2009, she
        was involved in an automobile accident and was injured. She
        applied for disability, but was denied. She has not applied for
        employment within the last six months.
        18. [Mother] receives food stamps.
        19. [Mother] and her boyfriend both smoke cigarettes in the
        home and around [Child]. She has caught [Child] smoking
        cigarettes in the recent past.
        20. When [Child] misbehaves, [Mother] punishes [Child] by
        taking away her cell phone, sending her to her room, or
        removing the door to her room.
        21. [Child] has a boyfriend. [Mother] does not allow the
        boyfriend in her home. [Mother] will not allow this because she
        suspects sexual activity, and is trying to stop it. [Child]

Court of Appeals of Indiana | Memorandum Decision 34A02-1505-DR-264 | February 15, 2016   Page 6 of 16
        continually attempts to see her boyfriend against [Mother’s]
        wishes.
        22. [Father] allows [Child] to see her boyfriend in his home.
        [Father] does not allow the children to be alone. He provides
        constant supervision. [Father’s] rules concerning the boyfriend
        conflict with [Mother’s] rules as to the boyfriend.
        ***
        25. [Father] drinks alcohol, specifically beer, on a daily basis.
        Throughout a week, [Father] may consume between 2-4 cases of
        beer. He drinks around and in front of [Child]. There is no
        evidence that [Child] has ever consumed alcohol and [Child]
        indicates that she is a non-drinker.
        26. When [Child] misbehaves, [Father] disciplines her by
        sending her to her room or sitting her down and talking to her.
        ***
        32. [Child] has a loving relationship with [Father]. [Child] feels
        comfortable talking with her father about issues in her life. They
        enjoy cooking and going on motorcycle rides together.
        ***
        34. [Child] has a loving relationship with [Mother]. However,
        [Child] does not feel comfortable talking with her mother about
        life issues.
        ***
        36. [Child] does not have a good relationship with [Mother’s]
        boyfriend, Bob Reed.
        37. [Child] does not have a good relationship with “Kim”.
        [Child] moves to a different room in the home or to her bedroom
        to avoid being the room [sic] with “Kim”.
        38. [Child] does have a good relationship with Tasha Allen.
        39. [Child] has a good relationship with her sister . . . .
        However, [Child] does not feel comfortable talking to [her] about
        issues in her life or obtaining advice from her.
        ***
        41. [Child] indicates that she wishes to live with [Father].
        ***
        45. Since the previous custody order was entered, there have
        been several substantial changes in circumstance:

Court of Appeals of Indiana | Memorandum Decision 34A02-1505-DR-264 | February 15, 2016   Page 7 of 16
                       a. [Child] is older;
                       b. [Father] now wishes to have [Child] live with him;
                       c. [Child] now wishes to live with [Father];
                       d. [Mother] has additional individuals that live in her
                       residence;
                       e. [Mother] is now dating Bob Reed;
                       f. [Child’s] grades have declined during the last school
                       year;
                       g. [Father] won the lottery.


       Appellant’s Appendix 13-17. In modifying the child custody order, the trial

       court concluded,


               71. The Court believes that both parties love their children a
               great deal.
               72. The child is older at the time of this hearing than she was at
               the time of the dissolution.
               73. [Father] now wishes to have the child in his custody.
               74. [Mother] has at least 2 other people living in her residence
               than she did when the dissolution was granted.
               75. The child’s grades have dropped during the last grading
               period.
               76. The child now wishes to reside with [Father].
               77. The court finds and concludes based on all evidence
               submitted, the record, and findings above, that [Father] has met
               his burden to show a change in circumstances so decisive as to
               make a change in custody necessary and in the [Child’s] best
               interest.


       Id. at 20.


[10]   As noted above, the trial court made specific findings as to how much alcohol

       Father drinks and how strict each parent is regarding Child’s boyfriend.

       Mother’s arguments invite us to reweigh the evidence, which we will not do.
       Court of Appeals of Indiana | Memorandum Decision 34A02-1505-DR-264 | February 15, 2016   Page 8 of 16
       See Miller, 965 N.E.2d at 108. In addition, we conclude the evidence supports

       the trial court’s findings and the findings support placing Child in Father’s

       custody. Although the trial court made numerous findings supporting its

       conclusion in this regard, we note the trial court found fifteen-year-old Child

       desired to live with Father, see Ind. Code § 31-17-2-8(3); Child did not feel

       comfortable communicating with Mother, but felt comfortable communicating

       with Father, see § 31-17-2-8(4)(A); and Child did not get along with multiple

       individuals living with Mother, some of whom moved in after the dissolution

       decree, see § 31-17-2-8(4)(C). Accordingly, the trial court did not abuse its

       discretion in granting Father’s petition to modify custody of Child.


                                          II. Child Support
                        A. Income for Child Support Calculation
[11]   Mother argues the trial court erred when it calculated Father’s modified child

       support obligation. Specifically, Mother contends the trial court erred in

       calculating the net portion of Father’s lottery winnings instead of his total

       winnings. “Weekly Gross Income is the starting point in determining the child

       support obligation, and it must be calculated for both parents.” Ind. Child

       Support Guideline 3(A) Commentary 2.


               For the purposes of determining the parents’ income in the child
               support guideline calculation, the definition of ‘weekly gross
               income’ is broadly defined to include not only actual income
               from employment, but also potential income and imputed
               income from ‘in-kind’ benefits. However, the Commentary to
               the Indiana Child Support Guidelines cautions that determining

       Court of Appeals of Indiana | Memorandum Decision 34A02-1505-DR-264 | February 15, 2016   Page 9 of 16
               income is more difficult when commissions and other forms or
               irregular income are involved. While irregular income is
               includable in the total income approach taken by the Guidelines,
               the determination is very fact sensitive.


       Harris v. Harris, 800 N.E.2d 930, 939 (Ind. Ct. App. 2003) (internal quotation

       marks and citations omitted), trans. denied.


[12]   In Harris, a noncustodial father obtained a custody modification, and the

       mother appealed, arguing the trial court erred when it included only the net

       portion of the father’s wrongful termination settlement. The father received a

       final gross settlement check of $800,000, but after deductions for taxes,

       attorney’s fees, and investments, the only money available to the father was

       $189,570.33. Instead of using the $800,000 figure to calculate the father’s

       weekly gross income, the trial court used the $189,570.33 figure. We affirmed

       the trial court’s decision, reasoning,


               The nature of a settlement award is a one-time payment of
               money. As such, it has a single impact on an individual’s
               financial circumstances and net worth. It is reasonable to state
               that the award would have ultimately benefited the children if the
               family had remained intact. Even then, the settlement award
               would have only been beneficial after the appropriate taxes were
               deducted.


               Therefore, we agree with the trial court that the gross amount of
               the settlement award was an irregular and non-guaranteed form
               of income, which the trial court, in its discretion, could exclude
               from its determination of gross income. Here, the trial court
               considered the settlement award and concluded that it was
               reasonable to include the net portion, as only that amount would

       Court of Appeals of Indiana | Memorandum Decision 34A02-1505-DR-264 | February 15, 2016   Page 10 of 16
               have been available to the family. This decision ensured that the
               children are given the support they need.


       Id. at 940 (internal citations and footnote omitted).


[13]   Here, the trial court concluded,

               65. The lottery winnings were irregular and non-guaranteed
               income. [Father] was required to pay state and federal taxes on
               the entire $1,000,000.00 award. The net amount, $540,000.00, is
               the amount that would have actually been available to the family.
               ***
               67. Through his employment at Omni Source, [Father] earns
               gross income of $34,000 per year. For the last four years,
               [Father] has earned $136,000.00 in gross income from Omni
               Source. During that time, [Father] received $540,000.00 in net
               lottery winnings. The total amount of income over the four year
               period equaled $676,000.00. That amount of income breaks
               down to $169,000.00 per year and $3,250.00 per week.
               68. Pursuant to the attached Child Support Obligation
               Worksheet, [Father’s] support obligation is modified to $259.00
               per week retroactive to July 8, 2013.


       Appellant’s App. at 19. Similar to Harris, Father received a one-time payment

       of a large sum of money, the net income was the only amount of money made

       available to Father, and the money had a single impact on Father’s net worth.

       In addition, had the family remained intact, Father’s net income from the

       lottery winnings would have ultimately benefited Child. See Harris, 900 N.E.2d

       at 940. Using its discretion, the trial court concluded the gross portion of the

       lottery winnings constituted an irregular and non-guaranteed form of income

       that should be excluded from the child support calculation. Accordingly, we

       Court of Appeals of Indiana | Memorandum Decision 34A02-1505-DR-264 | February 15, 2016   Page 11 of 16
       are not persuaded the trial court erred in calculating child support based on the

       net portion of Father’s lottery winnings.


                     B. Father’s Future Child Support Obligation
[14]   Mother argues the trial court erred in terminating Father’s child support

       obligation. Pursuant to Indiana Child Support Guideline 3(F)(1),

               The total child support obligation is divided between the parents
               in proportion to their weekly adjusted income. A monetary
               obligation is computed for each parent. The custodial parent’s
               share is presumed to be spent directly on the child. When there is
               near equal parenting time, and the custodial parent has significantly
               higher income than the noncustodial 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 noncustodial
               parent, absent grounds for a deviation.


       (Emphasis added). In other words, before a custodial parent can be ordered to

       pay child support to a noncustodial parent, two facts must be present: 1) the

       parents share near equal parenting time, and 2) there is a large disparity in the

       parent’s incomes. Here, the trial court awarded Father primary custody of

       Child and concluded Mother “shall have the right to parenting time with the

       child pursuant to the Indiana Parenting Time Guidelines.” Appellant’s App. at

       29. Indiana Parenting Time Guidelines Section II(E) sets forth the standard for

       a noncustodial parent’s regular parenting time, which Mother concedes equates

       to around “98 overnights.” Reply Brief of the Appellant at 29. If Mother’s

       parenting time is estimated to be ninety-eight overnights, then Father’s

       parenting time is estimated to be around 267 overnights. Because Mother and

       Court of Appeals of Indiana | Memorandum Decision 34A02-1505-DR-264 | February 15, 2016   Page 12 of 16
       Father do not share near equal parenting time, we conclude the trial court did

       not err in ordering no child support be paid by Father to Mother.


                                               C. Arrearage
[15]   Mother argues the trial court erred in ordering Father’s arrearage be paid into a

       trust for Child’s benefit in the future. One of the purposes of child support is to

       provide a child with regular and uninterrupted support. Hicks v. Smith, 919

       N.E.2d 1169, 1171 (Ind. Ct. App. 2010), trans. denied. It is well-established the

       right to child support lies exclusively with the child. A custodial parent is

       therefore required to hold the support payments in trust for the child’s benefit;

       in essence, the custodial parent becomes “the trustee of the non-custodial

       parent’s obligation to pay . . . .” Id. Generally, the non-custodial parent

       maintains an ongoing obligation to pay child support, and the custodial parent

       maintains an ongoing obligation to care for the child. Id. at 1172. However,

       when a non-custodial parent does not maintain the ongoing obligation to pay,

       the “custodial parent who has advanced his or her own funds to provide food,

       clothing, and shelter to the child has discharged the trusteeship and ‘is entitled

       to collect the arrears from the non-custodian.’” Id. (quoting Lizak v. Schultz, 496

       N.E.2d 40, 42 (Ind. 1986)). This rule creates a presumption “that the custodial

       parent has made up any shortfall that resulted from the noncustodial parent’s

       failure to fulfill his or her child-support obligations.” Sickels v. State, 982 N.E.2d

       1010, 1014 (Ind. 2013).




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[16]   Here, the 2013 dissolution decree ordered Father pay $100 a week in child

       support. On July 8, 2013, Mother—after discovering Father won the lottery—

       filed a petition to modify child support. Father subsequently continued to pay

       Mother child support in the amount of $100 per week. In modifying the child

       support order retroactively, the trial court concluded,


               68. Pursuant to the attached Child Support Obligation
               Worksheet, [Father’s] support obligation is modified to $259.00
               per week retroactive to July 8, 2013.
               69. Based on this retroactive order, [Father] should have paid
               $23,051.00 in child support between July 8, 2013 – March 23,
               2015 (89 weeks). [Father] has paid $8,900. Therefore, [Father] is
               $14,151.00 in arrears as to child support.
               70. Child support is designed to ensure that the child maintains
               the standard of the living [sic] the child would have enjoyed had
               the marriage not been dissolved. Support is not designed to
               provide the custodial parent with a windfall. There has been no
               evidence that [Mother] expended any additional funds for the
               child since [Father] won the lottery. [Mother] and the child
               continued to live the same life style they had been living prior to
               [Father] winning the lottery. Therefore, the Court determines
               that this arrearage amount shall be placed in trust for the benefit
               of the child. [Father] shall place $14,151.00 in trust for the
               benefit of [Child] within the next 30 days. The trust funds may
               be used to finance the child’s college education as needed. Once
               the child graduates college, the remaining funds, if any, shall be
               released to the child. If the child does not attend college, the
               funds shall be released to the child on her 22nd birthday.


       Appellant’s App. at 20 (emphasis in original). In other words, the trial court—

       in ordering the arrearage be placed into a trust for Child—solely relied on its

       findings that Mother did not present any evidence she expended any additional


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       funds to make up for the shortfall, and Mother and Child continued to live the

       same “life style.” Id. This was error. The trial court’s findings make no

       mention of Mother providing Child with food, shelter, clothing, and other basic

       necessities during the retroactive period, nor the general rule that a custodial

       parent is entitled to a presumption he or she made up any shortfall. See Sickels,

       982 N.E.2d at 1014. It is neither Mother’s burden to prove she made up any

       shortfall, nor Mother’s burden to prove Child’s life style changed.


[17]   Despite its conclusion to the contrary, we note the trial court’s findings support

       awarding the arrearage to Mother. Following the divorce, Mother was on food

       stamps, and Bob Reed, Tasha Allen, and “Kim” all moved into Mother’s

       apartment. Child did not get along with Bob and “Kim” and Child’s grades

       began to suffer. We find it likely none of this would have occurred had the

       family remained intact.


[18]   Finally, our decision becomes clearer when viewed in light of the case’s history.

       Father did not file his petition to modify custody, support, and parenting time

       until February 10, 2015, nearly nineteen months after Mother originally filed

       her petition to modify support; the trial court did not hear the matter until

       March 2015. Taking into consideration how long it took for the trial court to

       hear this matter, combined with the trial court being forced to hear Father’s and

       Mother’s competing petitions at the same time, we are convinced the trial court

       likely would have would have increased Father’s child support obligation had

       the matter been heard closer to the time of Mother’s filing and when Child was

       still in Mother’s custody. Therefore, it is likely Mother would have had use of

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       the increase for the care of Child during that time, and any arrearages that

       accrued would have been awarded to Mother based on the law discussed above.

       Accordingly, we conclude the trial court abused its discretion by not ordering

       Father pay the arrearage to Mother.


                                                Conclusion
[19]   The trial court did not abuse its discretion in awarding Father primary custody,

       calculating the modified child support obligation, and terminating Father’s

       child support payments to Mother. We affirm the trial court’s decision in those

       respects. However, the trial court abused its discretion in ordering Father pay

       the arrearage into a trust for Child; Mother is entitled to the arrearage and we

       therefore reverse that provision of the order and remand for the trial court to

       issue an amended order.


[20]   Reversed and remanded.


       Barnes, J., and Altice, J., concur.




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