Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                              FILED
                                                            Dec 04 2012, 8:56 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,                          CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
collateral estoppel, or the law of the case.                            tax court




ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

BRUCE A. KOTZAN                                     MICHAEL G. RUPPERT
Indianapolis, Indiana                               JAIMIE L. CAIRNES
                                                    Ruppert & Schaefer, P.C.
                                                    Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

RICHARD ERIC JOHNSON,                               )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )   No. 49A05-1202-DR-81
                                                    )
GILLIAN WHEELER JOHNSON,                            )
                                                    )
       Appellee-Respondent.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Patrick L. McCarty, Judge
                              Cause No. 49D03-9906-DR-898




                                         December 4, 2012



                 MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                  Case Summary and Issues

       Richard Johnson (“Father”) and Gillian Johnson (“Mother”), parents to two children,

were divorced in 1999. In 2011, Father filed a petition for modification of child support,

parenting time, and college expenses, and Mother filed a motion to determine Father’s

uninsured healthcare expense obligation dating back several years and the parties’

extracurricular expense obligation. Following a hearing, the trial court reduced Father’s

child support obligation, determined the amount of uninsured healthcare expenses Father

owed and set the future annual uninsured healthcare expense obligations of the parties, and

modified parenting time, but declined to modify an earlier agreement between the parties

regarding college expenses.

       Father now appeals, raising several issues for our review, which we consolidate and

restate as: 1) whether the trial court properly determined Father’s obligation for past

uninsured medical expenses; 2) whether the trial court abused its discretion in determining

Mother’s credit for payment of health insurance premiums for the children; 3) whether the

trial court abused its discretion in its orders regarding parenting time and other visitation

related issues; 4) whether the trial court abused its discretion in failing to modify the parties’

agreement regarding payment of college expenses; and 5) whether the trial court abused its

discretion in calculating child support because of its treatment of Social Security retirement

benefits the children receive.

       We conclude the trial court properly calculated Father’s prior uninsured health care

expense obligation based on the parties’ original agreement; appropriately considered and



                                                2
decided parenting time; and did not abuse its discretion in denying Father’s request to modify

the parties’ agreement regarding payment of college expenses for the children, and we affirm

the trial court’s order in those respects. We also conclude, however, that the trial court

abused its discretion in calculating Mother’s health insurance premium credit; in ordering

Father to pay all transportation costs for parenting time; and in failing to incorporate in its

order the parties’ agreement regarding payment of extracurricular expenses. Finally, we

conclude that although the trial court did not abuse its discretion in finding Father is entitled

to a credit for Social Security benefits the children receive, it did not correctly apply any such

credit to the child support calculation. We therefore reverse the trial court’s order with

respect to these issues and remand for the trial court to recalculate child support and amend

its order consistent with this opinion.

                                 Facts and Procedural History

       Father and Mother, parents to two daughters ages sixteen and thirteen at the time of

the trial court’s order, were divorced in 1999 pursuant to a Decree of Dissolution which

incorporated the parties’ settlement agreement. The parties shared joint legal custody of the

children, with Mother having physical custody and Father having “reasonable visitation as

may be agreed upon between the parties.” Appellant’s Appendix at 34. Father was to pay

$90.00 per child per week in child support and to maintain health insurance for each child.

“All uninsured health care expenses incurred by the minor children . . . not covered by

insurance each calendar year shall be paid as follows: [Father] agrees to pay fifty percent




                                                3
(50%) of those expenses and [Mother] shall pay the remaining fifty percent (50%).” Id. at

35. In the event the children attend college:

       the parties shall pay the cost of that education, including room, board, tuition,
       living and clothing allowance, and a reasonable amount for book laboratory
       fees, and similar items as follows: [Father] 50% and [Mother] 50%. The
       parents shall be liable for only such sums after each child’s scholarships,
       grants, loans or other financial aid amounts.
               The cost of the college education shall be calculated based upon the
       actual cost incurred, or the cost that would be incurred if the child attended a
       state supported college in Indiana as a resident student, whichever is less. This
       obligation shall not extend for enrollment during more than four academic
       years.

Id. at 36.

       Following the dissolution, Father retired from his employment with the Marion

County Sheriff’s Department, remarried, and relocated several times, residing in Arlington,

Virginia, at the time of the hearing. Mother had another child. In 2003, the parties modified

their settlement agreement in several respects. Father’s visitation was changed to “extending

parenting time . . . for up to three weeks during the summer, or otherwise mutually agreed by

the parties. Father will also have extended parenting time at least one other period during the

year and at other designated times during the year as agreed by the parties.” Id. at 49. Father

was to pay the parenting time transportation costs for the children to and from Indianapolis.

Father’s support obligation was modified to $75.00 per child per week and was to abate by

fifty percent when he had the children for a period of seven consecutive days. Mother was to

maintain health insurance for the children. “Unless modified by this Agreement, the terms

and conditions of the prior orders of this court remain in full force and effect.” Id. at 50.




                                                4
       On February 17, 2011, Father filed a Verified Petition for Modification of Prior

Orders on Support, Visitation, and College Expenses. He alleged therein that due to his

retirement, each child was receiving monthly Social Security benefits but he was receiving no

credit toward his support obligation for these benefits. Also, Father alleged that due to his

status as a disabled veteran, the children would be entitled to abatement of certain higher

educational expenses at state-supported institutions and he wished the college expense

provision of the settlement agreement to be modified accordingly. Father also alleged that

since January 2007, he had exercised at least seven weeks of parenting time with the children

each summer plus one week of parenting time over winter break, paying all travel expenses

for each visit, but the parties “now disagree on the length of [Father’s] summer parenting

time.” Id. at 54. Mother responded by filing a Motion to Determine Father’s Medical

Expense and Extra Curricular Expense Obligation, in which she alleged that pursuant to the

original settlement agreement, the parties were to split the children’s uninsured medical

expenses equally but that Father had not paid his share of those expenses. She also requested

that each party pay their pro rata share of the children’s extracurricular expenses.

       The trial court held a hearing on the pending motions over two days, one in June and

one in September 2011. At the request of the parties, the trial court entered findings of fact

and conclusions thereon, which provide in pertinent part:

                APPLICABLE LAW, FINDINGS AND CONCLUSIONS
       ***
              21. Even though the Court has found that Father should not have a
       dollar-for-dollar credit against his child support obligation, the Court does
       hereby FIND that Father should receive some credit in the determination of his
       child support due to the [Social Security Retirement Children’s (“SSRC”)


                                              5
benefits]. . . . The Court FINDS that the SSRC benefits should be included in
Mother’s [Weekly Adjusted Income (“WAI”)].
        22. . . . While the parties disagree as to when during the year Father
should exercise his parenting time, the evidence is clear that the parties have
historically agreed to overnight parenting time of up to 8 weeks. . . .
        23. . . . Mother testified that she has three options for health insurance
coverage through her employer: individual, individual plus one, or family.
Mother introduced evidence that the monthly cost for an individual is $.08, the
monthly cost for an individual plus one is $379.02, and the monthly cost for a
family is $494.54. While Mother does have a subsequently born child, Mother
testified, and her exhibit demonstrated, that she would incur the cost for a
family – i.e., $494.54/month – whether or not she had a subsequently born
child. Therefore, Mother testified that the Weekly Health Insurance Premium
credit should be calculated by prorating the amount that Mother pays for three
children, i.e., the difference between the cost of covering the family and the
cost of covering just her and multiplied by 2/3 to account for two of the three
children being of this marriage (. . . $76.67 per week). Father argues that the
children’s portion of Mother’s health insurance premiums should be calculated
by determining the difference between family coverage and individual plus one
coverage [or] $26.75 per week. Father’s request is inequitable because Mother
cannot insure the parties’ children for that amount. . . . Thus, the Court FINDS
that Mother should receive a credit on Line 4B of [the Child Support
Worksheet] in the amount of $76.67.
        24. The Court having made the foregoing findings concerning child
support, now FINDS: Father should pay support to Mother in the amount of
$138.00 per week . . . . The Court FURTHER FINDS that, pursuant to
Indiana’s “6% Rule,” Mother shall pay the first $1,344.72 per year in
uninsured healthcare expenses . . . . If Mother incurs more than $1,344.72 in
annual uninsured healthcare expenses, Father shall contribute 33% and Mother
shall contribute 67% toward payment of the annual uninsured healthcare
expenses in excess of $1,344.72.
        ***
        26. Father contends that the Settlement Agreement’s requirement to
split the uninsured medical expenses 50/50 was modified to the “6% rule”
because the [Child Support Worksheet] attached to the Amended Agreement
included a software generated “Uninsured Healthcare Expense Calculation” at
the bottom of the worksheet. . . . The payment of medical expenses was not
addressed at all in the Amended Agreement and there was no language in the
Amended Agreement incorporating the [Child Support Worksheet] support
amount and uninsured healthcare expense calculation into the Amended
Agreement – only that Father was to pay $150.00 per week, “. . . as provided in
the attached Child Support Obligation Worksheet.” The Court FINDS: that


                                        6
the terms of the Settlement Agreement regarding a 50/50 split of medical
expenses remained in full force and effect until January 23, 2011, when
amended by this order.
        27. The Court FINDS Father owes Mother fifty percent (50%) of all
uninsured medical expenses incurred for the minor children prior to January
23, 2011 . . . .
        ***
        29. Father did request that his percentage contribution to college
expenses be reduced to the pro rata share on the post-secondary educational
worksheet. . . .
        30. . . . Father was a sheriff’s deputy at the time of the parties’
agreement, and he was earning $741.00 per week. He knew he would be
retired when the children went to college. Now, Father is retired earning
$805.00 per week and enjoying an annual household income, after child
support, of more than $140,000.00 per year. The Court FINDS Father’s
request for a modification of the post-secondary education expense provision
of the Settlement Agreement should be DENIED.
        31. . . . The Court FINDS Father shall have parenting time during one-
half (1/2) of each break the children have from school pursuant to Section
II.B.3 of the [Indiana Parenting Time Guidelines].
***
  ORDER MODIFYING COURT’S PRIOR CHILD-RELATED ORDERS
        The Court hereby adopts the foregoing Findings of Fact and
Conclusions of Law and now being duly advised hereby ORDERS,
ADJUDGES AND DECREES AS FOLLOWS:
        1. Father’s prior child support obligation in the amount of $150.00 per
week should be, and hereby is, modified to the sum of $138.00 per week . . . .
        2. Mother shall continue to provide healthcare insurance for the parties’
children until further agreement of the parties, order of the Court or their
emancipation, whichever comes first; and, any and all annual uninsured
healthcare expenses up to and including the annual amount of $1,345.00 shall
be paid by Mother pursuant to Indiana’s “6% rule.” Annual uninsured
healthcare expenses of the parties’ children exceeding $1,345.00 annually shall
be paid by the parties: 33% by Father, 67% by Mother. Father owes Mother
the sum of $4,334.18 for his share of the children’s uninsured healthcare
expenses up to January 23, 2011. Father shall be entitled to a credit for the
overpayment of child support in the amount of $420.00 which shall be applied
to his foregoing obligation to Mother. . . .
        3. Father’s request, that the Court modify the prior agreement of the
parties requiring that they share post-secondary educational expenses of their
children 50/50, is hereby denied.



                                       7
                4. The parties shall evenly divide the children’s four (4) school breaks
        (Winter, Spring, Summer and Fall), pursuant to Indiana Parenting Time
        Guideline 2.B.3, commencing with the winter break for the 2011-12 academic
        year. The Court’s prior order granting Father a 50% abatement for extended
        parenting time is hereby vacated and superseded by the parenting time credit
        set out for Father in the attached [Child Support Worksheet] . . . .
        ***
                7. All of the Court’s prior child-related orders not necessarily modified
        herein shall remain in full force and effect.

Id. at 11-25 (emphasis in original). Father now appeals.

                                        Discussion and Decision

                                         I. Standard of Review

        The trial court entered findings of fact and conclusions thereon pursuant to Indiana

Trial Rule 52(A) at Mother’s request. Our standard of review is well-settled:

        We must first determine whether the evidence supports the findings and
        second, whether the findings support the judgment. We will disturb the
        judgment only where there is no evidence supporting the findings or the
        findings do not support the judgment. We do not reweigh the evidence and
        consider only the evidence favorable to the trial court’s judgment. Appellants
        must establish that the trial court’s findings are clearly erroneous, which occurs
        only when a review of the record leaves us firmly convinced a mistake has
        been made. However, although we defer substantially to findings of fact, we
        do not defer to conclusions of law. Additionally, a judgment is clearly
        erroneous if it relies on an incorrect legal standard. . . . The purpose of Rule
        52(A) findings and conclusions is to provide the parties and reviewing courts
        with the theory upon which the case was decided.

Maxwell v. Maxwell, 850 N.E.2d 969, 972 (Ind. Ct. App. 2006) (quotations and citations

omitted), trans. denied.1


        1
            Father notes in his brief that the trial court adopted Mother’s proposed findings of fact in their
entirety. Father does not specifically name the propriety of the trial court’s doing so as an issue on appeal or
make any specific argument about said practice; however, Mother has responded in her brief as if he did. We
simply note that the practice is not per se improper; the trial court is responsible for the correctness of the
findings it adopts and the important inquiry is whether the findings are clearly erroneous. See Parks v. Del.

                                                       8
                                           II. Health Insurance

                                 A. Uninsured Health Care Expenses

        Father first contends the trial court erred in its order regarding Father’s obligation

toward past uninsured health care expenses by not applying the 6% rule from 2003 on but

rather applying the 50/50 provision from the parties’ original settlement agreement.

        A child support amount calculated using the Indiana Child Support Guidelines

includes six percent for health care expenses. “The noncustodial parent is, in effect,

prepaying health care expenses every time a support payment is made.” Commentary, Ind.

Child Support Guideline 7. Therefore, pursuant to the Guidelines, the custodial parent is to

pay the first six percent of uninsured health care expenses each year and each parent pays the

remainder of the expenses in proportion to his or her share of the parties’ total income.

When Mother and Father were divorced in 1999, however, they agreed that they would split

the uninsured health care expenses for the children equally. The “Uninsured Health Care

Expense Calculation” at the bottom of the Child Support Worksheet accompanying the

decree of dissolution and settlement agreement was left blank. See Appellant’s App. at 44.

In 2003, the parties entered an amended agreement that addressed several specific items;

uninsured health care expenses were not one of them. However, the Child Support

Worksheet attached to the amended agreement did include an uninsured health care expense




Cnty. Dep’t of Child Servs., 862 N.E.2d 1275, 1278 (Ind. Ct. App. 2007) (“The Indiana Supreme Court has
acknowledged that a trial court’s verbatim adoption of a party’s proposed findings may have important
practical advantages and has expressly declined to prohibit the practice.”) (citing Prowell v. State, 741 N.E.2d
704, 708-09 (Ind. 2001)).

                                                       9
calculation that showed Mother’s annual 6% obligation was $1,045.20 and the parties’

respective obligations as to the remainder. See id. at 51.

       In this post-dissolution proceeding, Mother sought a determination of Father’s

uninsured health care expense obligation since the 1999 divorce, alleging pursuant to the

settlement agreement he owed half of the uninsured health care expenses since that time.

Father countered that the 2003 amended agreement modified the uninsured health care

expenses agreement from the 50/50 provision of the settlement agreement to the standard 6%

Guideline calculation pursuant to the paragraph stating that “Father’s child support obligation

shall be modified to seventy-five dollars ($75.00) per week per child, as provided in the

attached Child Support Obligation Worksheet.” Id. at 49 (emphasis added). Father alleged

he believed at that time that the 6% rule applied. The trial court found, based on contract

law, that the express term regarding uninsured health care expenses in the settlement

agreement was not modified by the amended agreement because it was not addressed therein

and only the child support amount itself was incorporated from the attached Child Support

Worksheet. Father contends this finding is in error.

       When dissolving a marriage, the parties are free to craft an agreement providing for

the maintenance of either party, the disposition of property, and the custody and support of

the parties’ children. Ind. Code § 31–15–2–17(a). Settlement agreements become binding

contracts when incorporated into the dissolution decree and are interpreted according to the

general rules for contract construction. Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind. 2008).

However, although Indiana Code section 31-15-2-17(c) expressly prohibits the modification



                                              10
of agreements as regards property disposition by the trial court, it does not similarly prohibit

the modification of agreements regarding support and custody matters. Thus, the trial court

could modify the terms of the parties’ agreement as to support and its various elements under

appropriate circumstances.

       When Father filed his 2003 petition for modification of prior support orders, he noted

that he was at that time paying $90.00 per week per child in child support and carrying

medical and dental insurance on the children. He further noted that he would be retiring and

no longer eligible for group insurance coverage. He requested that his support obligation and

the requirement that he carry insurance on the children be modified due to his retirement.

The agreed judgment between the parties lowered Father’s weekly support and ordered

Mother to carry health insurance on the children. In addition, it addressed extended

parenting time for Father, and refinancing of the joint mortgage by Mother. The agreed

judgment also provided that the terms and conditions of prior orders remained in effect

unless modified by new agreement.

       We agree with the trial court that the uninsured health care expense provision was an

express provision of the settlement agreement in derogation of the Guidelines and that the

agreed judgment, while accompanied by a child support worksheet that calculated the 6%

uninsured health care expense obligation of the custodial parent and the percentage of the

balance that each parent should pay, did not modify that provision. The uninsured health

care expenses were not raised by Father’s motion, nor were they specifically addressed by the

amended agreement. There is no evidence, other than Father’s self-serving testimony at the



                                              11
hearing on this current motion, that the parties discussed uninsured health care expenses at

all, let alone agreed to alter their previous agreement. And while it is impossible to know for

sure, it is likely, given the “Indiana Child Support Obligation Calculator” header and

indygov.org website footer on the Child Support Worksheet attached to the amended

agreement, that the worksheet was completed by inputting the values into an online form that

automatically did the calculations, including the uninsured health care expense calculation,

and that the inclusion of such calculation without more means nothing in regard to an

agreement between the parties to change the previous provision.2

                                B. Health Insurance Premium Credit

        Father also contends the trial court erred in giving Mother a $76.67 credit for the

health insurance premiums she pays to carry health insurance on the children. Originally,

Father carried health insurance on the children, but when he retired, Mother was ordered to

add the children to her health insurance. At that time, Mother’s insurance covered herself

and her subsequently-born son on her employer’s plus one plan, at a cost of $379.02. When

Mother added the children, she and her three children were insured on the family plan for

$494.54. The cost to insure Mother alone would have been $0.08. The trial court found that

the cost to insure all three of Mother’s children was $494.46 (the cost of the family plan

minus the cost to insure Mother alone), and that Mother should have a credit equal to two-


        2
           Father contends that if the agreement was not expressly modified by the inclusion of the Child
Support Worksheet, it was modified by conduct. We note first that the settlement agreement provides it can be
modified only in writing. Appellant’s App. at 40. Moreover, it appears that Mother did not request any
uninsured health care expense reimbursement from Father from the time of the amended agreement until this
proceeding, as her request includes documentation of expenses dating back to 2003. As the only modification
this conduct would effect is to relieve Father of his obligation to contribute to uninsured healthcare expenses
altogether and it sheds no light on the understanding of the parties as to whether the 50/50 agreement

                                                     12
thirds that amount, or $76.67 per week. Father contends the trial court abused its discretion

in so finding because that is the “theoretical” cost of insuring the children, rather than the

“actual” cost, which he calculates as the difference between the amount she was paying

without the children on her plan ($379.02) and the amount that she pays after adding the

children ($494.54). Father therefore argues Mother’s credit should be $26.75 per week.

       Several Indiana Child Support Guidelines address how to handle the cost of health

insurance in a child support calculation. Guideline 7 notes that the trial court shall order one

or both parents to provide private health insurance when accessible to the child at a

reasonable cost. Guideline 3 provides that the weekly cost of health insurance should be

added to the basic child support obligation “whenever either parent actually incurs the

premium expense . . . .” Ind. Child Support Guideline 3(E)(2). The commentary to

Guideline 3(E) provides that “[o]nly that portion of the cost actually paid by a parent is added

to the basic obligation.” Guideline 3 also provides that the parent who pays for the insurance

“should receive a credit towards his or her child support obligation in most circumstances.”

Child Support G. 3(G)(3). Generally, then, a parent should receive a health insurance credit

in an amount equal to the cost the parent actually pays for a child’s health insurance. Julie C.

v. Andrew C., 924 N.E.2d 1249, 1260 (Ind. Ct. App. 2010).

       The trial court reasoned that because the plan choices were to insure Mother alone,

Mother plus one dependent, or the entire family, Mother could not insure the parties’ two

children for less than the family plan amount, irrespective of her subsequently-born child;

Father’s request was therefore “inequitable because Mother cannot insure the parties’


continued post-amendment, we reject Father’s contention.
                                                  13
children for [$26.75 per week].” Appellant’s App. at 16. On the other hand, the trial court

found Mother’s request equitable “because she only gets a credit for two-thirds of the cost,

and, thus, if she sought child support for her subsequently born child and received a one-third

credit for his portion of the premium she would ultimately receive credit for the actual

amount of health insurance premium costs she pays.” Id. The trial court’s consideration of

what could happen if Mother began receiving child support for her subsequently-born child is

premature. At the time Mother added the children to her insurance, she was already paying

$379 per month for insurance. Adding the children increased the premiums to $494 per

month, thus raising her actual cost by only $115. That Mother receives no child support from

her subsequently-born child’s father unfairly burdens her with the costs of raising the child,

but sharing in those costs is not Father’s responsibility. Apportioning the premiums as

Mother suggests unfairly burdens Father with the cost of insuring a child who is not his. We

agree with Father that Mother’s health insurance premium credit should reflect the actual cost

she has incurred in insuring the children and not the theoretical cost of insuring them if her

situation were different. Accordingly, we hold the trial court abused its discretion in the

health insurance premium credit it gave Mother.

                  III. Parenting Time and Other Visitation-Related Issues

                                       A. Agreement

       This case was heard over the course of two days – one in June 2011 and one in

September 2011. At the June hearing, the parties informed the court they had an agreement

as to certain issues:



                                              14
       [Mother’s counsel]: [Father], I believe, wants seven weeks [parenting time] in
       the summertime and he wants the option to take that continuously, and
       [Mother] stipulates that [Father] should have seven weeks in the summertime.
       We acknowledge that under the Parenting Time Guidelines he has the right to
       take those continuously if he wants to. We understand that that’s not
       necessarily going to apply to this [2011] summer right here, where we’ve got a
       little bit of a glitch going on about the exact seven weeks, and that seven days
       for the combined winter/New Years holiday . . . . And then reasonable, liberal
       visitation here in Indianapolis whenever [Father is] here, with approximately
       seven days notice if that’s possible.

Tr. at 31. In addition, for the summer of 2011, the parties agreed Father’s parenting time

would begin within the week after school let out and end before August 1. See id. at 35.

They also agreed that Father would pay for parenting time transportation and that each party

would pay the extracurricular expenses the children incurred while they were in each parent’s

custody. The trial court stated, “we’ve got an agreement as to the visitation and those other

parts of it. We’ll have you draw that up separately and have them sign it, just so they

understand it.” Id. at 47. The Chronological Case Summary entry for the June hearing

indicates that a “partial agreement was read into the record.” Appellant’s App. at 4. No

signed agreement or order was apparently entered.

       When the parties returned to court to conclude the hearing in September, however,

they noted that the children’s school had adopted a balanced calendar to begin with the 2011-

12 school year, and that pursuant to the new calendar, fall, winter, and spring breaks would

be longer but summer break would be shorter. Where Father had traditionally exercised

extended parenting time during the winter and summer breaks, Mother now requested that

because of the schedule change, the court order parenting time in accordance with the

Parenting Time Guidelines. The trial court’s order did not incorporate the provisions of the


                                             15
June stipulation, but separately addressed parenting time and travel expenses and failed to

address extracurricular expenses. Father contends it was error for the trial court to disregard

what he characterizes as binding stipulations conclusively resolving parenting time issues.

       The best interests of the children are the primary consideration when custody, support,

or visitation issues are being determined. Naggatz v. Beckwith, 809 N.E.2d 899, 902 (Ind.

Ct. App. 2004), trans. denied. The wishes of the parents are to be given considerable weight,

but it is for the trial court to determine whether any agreement is in the best interests of the

child. Id. The agreed-upon seven weeks of summer visitation at Father’s home in Virginia is

incompatible with the continuous school calendar as shown by the exhibits introduced at the

September 2011 hearing.3 Because the circumstances surrounding the exercise of parenting

time had changed by the time of the September hearing, it was not inappropriate for the trial

court to revisit the issue.

                               B. Parenting Time Guidelines

       Father next contends that if, as we have found above, the trial court did not err in

considering parenting time on its own, it nonetheless erred in its application of the Parenting

Time Guidelines in ordering that Father have parenting time with the children during half of

each school break.

       The trial court cited Parenting Time Guideline II.B.3 as support for its order.

Guideline II.B.3 provides that for children five years of age and older, extended parenting

time shall be one-half the summer vacation, but if the child attends a year-round school, “the


       3
          For instance, the summer break in 2012 was from June 29, 2012, to August 6, 2012, or
approximately five weeks. See Petitioner’s Exhibit 17.

                                              16
periodic breaks should be divided equally between the parties.” Father contends the trial

court erred in applying this Guideline provision rather than those found in Guideline III

which addresses parenting time when distance is a major factor. Guideline III provides:

              Where there is a significant geographical distance between the parents,
       scheduling parenting time is fact sensitive and requires consideration of many
       factors which include: employment schedules, the costs and time of travel, the
       financial situation of each parent, the frequency of parenting time and others.
              1. General Rules Applicable. The general rules regarding parenting
       time as set forth in Section 1 of these guidelines shall apply.
              2. Parenting Time Schedule. The parents shall make every effort to
       establish a reasonable parenting time schedule.

The commentary to this Guideline provides a parenting time schedule that “may be helpful”:

“For a child 5 years of age and older, seven (7) weeks of the school summer vacation period

and seven (7) days of the school winter vacation plus the entire spring break, including both

weekends if applicable.”

       It appears Father is simply restating his argument that the June agreement between the

parties should be how parenting time is handled. There is some tension between the year-

round school provision of Guideline II and the recommended extended parenting time

schedule of Guideline III. There is also tension between the children’s school schedule and

the agreement the parties made in June. Both Guideline III’s suggested parenting time

schedule and the parties’ agreement are unworkable given the length of breaks in the new

school calendar. However, the parties’ practice had been for Father to have a total of eight

weeks of parenting time with the children. The trial court’s order seeks to maintain that




                                             17
amount of parenting time while working within the school schedule, thus considering the

factors relevant to this particular situation as Guideline III requires.4

         We do believe, however, that the trial court abused its discretion in altering Father’s

parenting time to four times per year as opposed to two but ordering Father to continue to pay

all costs of transportation for parenting time. Guideline I(B)(1) concerns transportation

responsibilities: “Unless otherwise agreed between the parents, the non-custodial parent

shall provide transportation for the child at the start of the scheduled parenting time and the

custodial parent shall provide transportation for the child at the end of the scheduled

parenting time.” Comment 2 to this Guideline notes that where distance is a factor, “[t]he

cost of transportation should be shared based on consideration of various factors, including

the distance involved, the financial resources of the parents, the reason why the distances

exist, and the family situation of each parent at that time.” The trial court, noting this

Guideline and the commentary, and considering that the amended agreement required Father

to pay all transportation expenses, that Father has moved from Indiana to facilitate his current

wife’s employment opportunities, that Father has a higher standard of living than Mother,

and that Mother has concerns about being required to pay any transportation costs because of




         4
           The heading to Father’s argument about the Parenting Time Guidelines contends the trial court’s
order “impermissibly restrict[s] [his] parenting time contrary to I.C. § 31-17-4-2.” Appellant’s Brief at 23.
That section provides that the court may modify a parenting time order whenever modification is in the best
interests of the child, but the court “shall not restrict a parent’s parenting time rights unless the court finds that
the parenting time might endanger the child’s physical health or significantly impair the child’s emotional
development.” Father makes no actual argument with respect to this statute, however. To the extent he is
arguing that he gets less parenting time under the trial court’s order than he did previously, he has not shown
that he will get any less parenting time, let alone enough less parenting time that it could qualify as “restricted.”


                                                         18
Father’s frequent moves, found that Father should pay all costs of transportation for the

children.

        We acknowledge the agreement between the parties regarding transportation costs, but

note that said agreement was made presuming a different set of circumstances. We also

acknowledge that Father moved from Indiana for personal reasons and that he has lived as far

away from Indiana as Germany. Because the Parenting Time Guidelines demonstrate a

preference for the parties sharing in the cost of transportation where the distance between

them is significant, see Saalfrank v. Saalfrank, 899 N.E.2d 671, 682 (Ind. Ct. App. 2008), we

believe the trial court’s order placing the entire burden of transportation costs on Father,

coupled with the parenting time order doubling the number of times Father may exercise

parenting time, is an abuse of discretion. Given the trial court’s findings about the reason for

the distance and the financial resources of the parties, it may be that sharing the costs equally

is not appropriate, but it should be shared in some manner. We therefore reverse that part of

the order dealing with transportation costs and remand to the trial court to reconsider the

allocation of transportation costs.5

                                    C. Extracurricular Expenses

        Father also notes that the trial court’s order does not address extracurricular expenses,

an issue raised by Mother in her motion. No prior order specifically addresses extracurricular

expenses, either; rather, the parties have traditionally paid the extracurricular expenses the


        5
           We note that transportation costs can also be addressed in the child support order itself, as the
commentary to Indiana Child Support Guideline 1 notes that, among the “infinite number of situations” that
may call for a deviation from the guideline support amount, “[t]he custodial or noncustodial parent incurs
significant travel expense in exercising parenting time.”

                                                    19
children have incurred while in each parent’s care, and that is also the agreement they

reached during the June 2011 hearing. As none of the events occurring between the June and

September hearings have any demonstrable impact on these expenses, as they have on

parenting time and transportation expenses, we see no cause to alter the parties’ agreement as

to this issue. We do, however, believe it would be best to memorialize it in writing, and we

therefore direct the trial court to amend its order to incorporate the parties’ historical practice

and future agreement regarding the payment of extracurricular expenses.

                                     IV. College Expenses

       Father next contends the trial court erred in not modifying the parties’ original

agreement regarding college expenses. At the time of the parties’ divorce, they agreed that if

the children continued their education at the college level, they would share equally the cost

“after each child’s scholarships, grants, loans or other financial aid amounts.” Appellant’s

App. at 36. In addition, the parties agreed the cost would be calculated “based upon the

actual cost incurred, or the cost that would be incurred if the child attended a state supported

college in Indiana as a resident student, whichever is less.” Id. Father requested this

provision be modified because his status as a disabled veteran entitled the children to an

abatement of educational expenses that is not addressed in prior orders. Specifically, Father

asked the trial court to order the children to apply to an Indiana school that accepted the

veterans benefit so that the actual value of the benefit could be assessed and applied, if

necessary, to the college expenses each child actually incurred. Father also requested the trial

court modify the 50/50 provision of the agreement to reflect the parties’ current proportional



                                                20
income; that is, to reduce his contribution from fifty percent. The trial court declined to

modify the college expenses provision, finding that Mother acknowledged that even if the

children go to out-of-state schools, Father’s contribution to tuition expenses was “likely to be

entirely eliminated due to Indiana’s statutory tuition waiver program . . . .” Id. at 19. The

trial court also declined to reduce Father’s percentage contribution to college expenses

because Father’s household income and financial position is greater than Mother’s.

       Provisions for the payment of educational expenses are modifiable because

educational expenses are in the nature of child support. Schacht v. Schacht, 892 N.E.2d

1271, 1275 (Ind. Ct. App. 2008). Support orders, including orders to pay post-secondary

expenses, may be modified even if the order is the result of an agreement between the parties.

Walters v. Walters, 901 N.E.2d 508, 511 (Ind. Ct. App. 2009). To obtain a modification of a

support provision, the petitioner is required to show “changed circumstances so substantial

and continuing as to make the terms unreasonable” or a deviation of twenty percent or more

from the guideline obligation. Ind. Code § 31-16-8-1. The trial court found there were no

changed circumstances because Father’s retirement between the time of the agreement and

the time the children would begin college had been contemplated when the agreement was

made. However, the changed circumstances Father alleges are the tuition benefit available to

the children at an Indiana college due to his status as a disabled veteran which was unknown

to the parties in 1999.

       The agreement contemplates both capping the parents’ obligation to contribute to

college expenses at the cost of an in-state institution and reducing the obligation by the



                                              21
amount of any financial aid, both of which would include consideration of the tuition benefit

available to the children. Moreover, this situation is unlike that in Schacht, in which the

parties’ agreement to each contribute one-third of their child’s college expenses was

modified upon a finding that because the mother had incurred a significant loss of family

income and assumption of additional expenses due to the illness of her current husband, her

financial ability to pay a one-third share of college expenses had substantially changed. 892

N.E.2d at 1274; cf. Hay v. Hay, 730 N.E.2d 787, 793 (Ind. Ct. App. 2000) (father failed to

show change in circumstances warranting modification of agreement regarding payment of

college expenses based solely on child’s enrollment in college because that situation was

contemplated by the parties at the time of the agreement and the parties’ relative income had

not changed substantially). Here, the manner in which Father may contribute toward college

expenses may have changed since the agreement, but his ability to do so has not. We cannot

say the trial court abused its discretion in finding no substantial change in circumstances and

declining to modify the college expenses provision of the parties’ agreement. 6

                                          V. Social Security Benefits

         Finally, Father contends the trial court erred in its treatment of the dependent Social

Security retirement benefits the children receive in the amount of $324.00 per week. The


         6
            Father contends the trial court erred in failing to reduce his contribution to college expenses from the fifty
percent to which he agreed to the percentage of his proportional income. Consideration of this issue would first require a
finding of changed circumstances to warrant a modification, and having held the trial court did not abuse its discretion in
finding no changed circumstances, we need not address this issue.
          Father also contends the trial court erred in considering his wife’s income in determining his relative financial
position for purposes of his continued ability to contribute to college expenses. Although in general, the income of the
parties and not the income of the spouses of the parties is considered in determining Weekly Gross Income for purposes
of calculating child support, see Ind. Child Support Guideline 3, in determining post-secondary educational expenses, a
trial court must consider, in part, “the incomes and overall financial condition of the parents.” Ind. Child Support
Guideline 6, Commentary (emphasis added). Father’s wife’s income, as it impacts his overall financial position, is

                                                           22
trial court added the weekly benefit to Mother’s weekly adjusted income; Father contends the

trial court should have instead credited that amount against his child support obligation.

         In Stultz v. Stultz, 659 N.E.2d 125 (Ind. 1995), our supreme court considered whether

the trial court properly refused to offset a father’s child support obligation by the amount of

Social Security retirement benefits paid directly to his children. The trial court had

determined, relying on the factors delineated in Indiana Code section 31-1-11.5-12(a) (now

Indiana Code section 31-16-6-1), that the father should not be given credit against his child

support for the Social Security retirement benefits received by his children. In particular, the

trial court looked to the standard of living the child would have had if the marriage had not

been dissolved, and determined that if the marriage had remained intact, the children would

have enjoyed the benefit of the mother’s income, the father’s income plus retirement benefits

and the Social Security retirement benefits they received. Id. at 127. Our court reversed the

trial court, holding that the obligor parent is entitled to a credit for Social Security benefits

received by the child due to that parent’s retirement. Stultz v. Stultz, 644 N.E.2d 589, 592

(Ind. Ct. App. 1994). On transfer, our supreme court held that “such a credit is not automatic

and that the presence of Social Security benefits is merely one factor for the trial court to

consider in determining the child support obligation or modification of the obligation.”

Stultz, 659 N.E.2d at 128. The trial court had “carefully consider[ed] all of the factors in this

particular case [and] found that a credit was not warranted[,]” and the supreme court

affirmed, unable to say that decision was clearly erroneous. Id. The court went on to note



relevant to this inquiry. See Schacht, 892 N.E.2d at 1276 n.1.

                                                         23
that in the appropriate case, trial courts could grant a credit for Social Security retirement

benefits, but “anticipate[d] . . . that such a credit will generally be denied . . . .” Id.

       The Indiana Child Support Guidelines now include the Stultz language in addressing

Social Security benefits as an adjustment to a parent’s child support obligation (line 7 of the

child support worksheet):

       2. Noncustodial parent: Social Security benefits received by a custodial
       parent, as representative payee of the child, based upon the earnings . . . of the
       noncustodial parent shall be considered as a credit to satisfy the noncustodial
       parent’s child support obligation as follows:
               i. Social Security Retirement benefits may, at the court’s discretion, be
       credited to the noncustodial parent’s current child support obligation. The
       credit is not automatic. The presence of Social Security Retirement benefits is
       merely one factor for the court to consider in determining the child support
       obligation or modification of the obligation.

Child Supp.G. 3(G)(5)(a). The commentary to this guideline notes that

       [t]he court has discretion to allow an adjustment to a parent’s child support
       obligation based on the amount of Social Security Retirement benefits paid for
       the benefit of the child due to that parent’s retirement. The retirement benefit
       is merely one of the factors that the court should consider when making an
       adjustment to the child support obligation.

In Thompson v. Thompson, 868 N.E.2d 862 (Ind. Ct. App. 2007), this court noted that not

giving a credit for Social Security retirement benefits can result in gross child support and a

percentage of total family income used for the benefit of the child that is in excess of what

the child would have received had the family remained intact; conversely, giving the non-

custodial parent a dollar-for-dollar credit for the retirement benefits can result in less. Id. at

867-68. Either would be an abuse of the trial court’s discretion. Rather, the trial court

should strive to give or deny credit for Social Security retirement benefits such that a



                                                24
substantially similar percentage of total family income is devoted to children in families

receiving the benefits as in those that do not. Id. at 869.

       Here, the trial court found that Father should be given some credit in the child support

calculation due to the Social Security retirement benefits the children receive, but that he

should not receive a dollar-for-dollar credit because such credit would reduce the children’s

standard of living significantly compared to that which they would have had if the marriage

had not been dissolved. The treatment of Social Security retirement benefits is within the

discretion of the trial court and we cannot say the trial court’s decision here to give Father a

credit is an abuse of that discretion. However, we disagree with the method the trial court

used for computing the child support obligation. The trial court purported to account for the

retirement benefits by adding the weekly amount of the benefits to Mother’s income on line

1(E) in determining her weekly adjusted income for purposes of calculating the basic child

support obligation. Although this does increase Mother’s income and correspondingly,

reduce Father’s percentage share of the total income, it also has the effect of applying the

reduced percentage to a greater amount of total income in the first instance.

       Accordingly, the trial court’s calculation does not really give Father a “credit” for the

retirement benefits the children receive. We therefore remand to the trial court to refigure the

child support obligation to give Father an appropriate credit after the basic child support

obligation is calculated, but we point the trial court to several considerations in doing so.

First, as the trial court noted, the guiding principle in adjusting the child support obligation

should be to afford the children a similar standard of living to that they would have had but



                                              25
for the parties’ divorce, and the retirement benefits are but a factor in that determination.

Second, as the trial court found, a dollar-for-dollar credit to Father’s child support obligation

is not appropriate, as in this case, it would reduce Father’s child support obligation to zero.

Father still has an obligation to support his children. See Stultz, 659 N.E.2d at 130. The

retirement benefits are provided by the government to the children at no cost to Father – the

amount of Social Security contributions he has made would be the same regardless of

whether he had no children or ten children. Moreover, the retirement benefits paid to Father

are not reduced or impacted in any way by the benefits the children receive. And the

retirement benefits to the children do not act as a replacement for Father’s income as

disability benefits would.7 Father cannot completely avoid his child support obligation

because of an entitlement to which he has not contributed. As the trial court has found in its

discretion that Father is entitled to a credit for the retirement benefits paid to his children, the

trial court should figure the credit that will provide the children the appropriate standard of

living and apply it to the Father’s child support obligation consistent with this opinion.

                                                Conclusion

        The trial court did not abuse its discretion in its order regarding Father’s prior

uninsured health care expense obligation, parenting time, and college expenses. The trial

court did abuse its discretion in calculating Mother’s health insurance premium credit, its


        7
           In Brown v. Brown, 849 N.E.2d 610 (Ind. 2006), our supreme court noted the difference between
Social Security retirement benefits and disability benefits in explaining the different treatment of the two
benefits: a parent is entitled to have Social Security disability benefits paid to a child credited against the
parent’s child support obligation because disability payments are intended to provide support the disabled
parent is unable to provide. Id. at 614 (quoting Williams v. Williams, 727 N.E.2d 895, 897 (Ohio 2000)).
“Disability impacts a parent’s earning capacity and, therefore, a child’s standard of living, in a fundamentally
different way than does retirement.” Id.

                                                      26
order regarding parenting time transportation expenses, and in failing to address

extracurricular expenses. Moreover, the trial court did not appropriately figure the credit to

which Father is entitled toward his child support obligation because of Social Security

retirement benefits the children receive. Accordingly, the trial court’s order is affirmed in

part and reversed in part and remanded for the trial court to recalculate child support and

amend its order accordingly.

       Affirmed in part; reversed and remanded in part.

BAKER, J., and BRADFORD, J., concur.




                                             27
