      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                       FILED
      regarded as precedent or cited before any                              Mar 05 2020, 9:07 am
      court except for the purpose of establishing
                                                                                  CLERK
      the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                                 Court of Appeals
      estoppel, or the law of the case.                                            and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Michael H. Michmerhuizen                                 John M. Haecker
      Barrett McNagny LLP                                      Squiller & Hamilton, LLP
      Fort Wayne, Indiana                                      Auburn, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Dustin Westafer,                                         March 5, 2020
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               19A-DC-2254
              v.                                               Appeal from the Noble Superior
                                                               Court
      Amy M. Westafer,                                         The Honorable Randy L. Coffey,
      Appellee-Petitioner.                                     Special Judge
                                                               Trial Court Cause No.
                                                               57D02-1901-DC-1



      Najam, Judge.


                                       Statement of the Case
[1]   Dustin Westafer (“Father”) appeals the trial court’s denial of his petition for

      modification of custody over his minor children following the dissolution of his


      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020                   Page 1 of 23
      marriage to Amy M. Westafer (“Mother”). Father raises three issues for our

      review:


              1.      Whether the trial court abused its discretion when it
                      denied his petition to modify custody.

              2.      Whether the trial court erred when it imputed income to
                      Father and increased his child support obligation.

              3.      Whether the trial court erred when it ordered Father to
                      pay a portion of Mother’s attorney’s fees.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Father and Mother were married, and they have two minor children together,

      T.W., born June 30, 2013, and Z.W., born March 21, 2015 (collectively, the

      “Children”). In 2017, the trial court entered a decree dissolving the parties’

      marriage. In that decree, the court ordered that the parties would share legal

      custody of the Children. The court also ordered that Mother would have

      physical custody of the Children but granted Father parenting time on two

      evenings per week and alternating weekends. The court then ordered Father to

      pay $115 per week in child support.


[4]   Mother is a registered nurse. At the time the court dissolved the parties’

      marriage, Mother worked three eight-hour-days per week. But shortly

      thereafter, Mother’s schedule changed, and she now works two twelve-hour



      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 2 of 23
      shifts per week on rotating days and every third weekend.1 Father markets and

      sells nutritional supplements and has a flexible work schedule. Due to Mother’s

      new schedule and Father’s flexibility, Mother and Father no longer follow the

      court’s order regarding parenting time. Rather, the Children now spend nearly

      half of their time with Father.


[5]   While the parties were married, they lived at Mother’s parents’ house in

      Albion. After the dissolution, Father moved to Warsaw. In March 2018,

      Mother moved from her parent’s house to a house in Kendallville. Thereafter,

      Father remarried, and he and his new wife, Jennifer, moved to a home in Fort

      Wayne in December. The home Father and Jennifer live in is owned by

      Jennifer’s father and has a rental value of $7,500 to $10,000 per month.

      However, Father and Jennifer do not pay any rent, and Jennifer’s father pays all

      of the utilities and lawn and pool maintenance. Father’s new home is

      approximately forty-five minutes from Mother’s home. See Ex. Vol. IV at 196.

      Sometime after Father married Jennifer, Jennifer’s mother gave them a joint

      investment account worth more than $26,900, and Jennifer’s father gave Father

      $15,000.


[6]   In early 2018, Father and Mother discussed schooling options for the Children.

      Mother indicated that she wanted the Children to attend St. Mary’s, a private

      Catholic school near her home. Father, who is not Catholic, stated that he did



      1
       Mother works Tuesdays and Saturdays one week, then Sundays and Thursdays the second week, and
      Mondays and Tuesdays during the third week.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020           Page 3 of 23
      not want the children to attend St. Mary’s both because it is a Catholic school

      and because it is forty minutes away from Father’s home in Fort Wayne.

      Instead, Father wanted the Children to attend Canterbury, a private

      nondenominational Christian school near his home. Mother and Father also

      disagreed about the appropriate age for Z.W. to start kindergarten. Father

      wanted Z.W. to start kindergarten at the age of five, while Mother wanted Z.W.

      to wait to start kindergarten when he was six years old. Mother ultimately

      enrolled the Children at St. Mary’s.


[7]   On May 31, Father filed a petition to modify custody and parenting time.

      However, on December 3, Father filed a motion to dismiss that filing without

      prejudice because the motion was “no longer necessary.” Appellant’s App.

      Vol. II at 43. The court granted Father’s motion to dismiss. Then, on

      December 21, Father filed a second petition to modify custody, parenting time,

      and child support. In that petition, Father asserted that “there has been a

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

      initially determining custody. Id. at 45. Specifically, Father asserted that: the

      parties have been following a different parenting time schedule for nearly one

      year, the parties disagree on what school the Children should attend, and

      Father’s schedule and home “would provide for and [are] better suited for the

      Children.” Id. at 46. Father also requested that the court recalculate his child

      support obligation and award him attorney’s fees.


[8]   The trial court held a hearing on Father’s petition. During the hearing, Father

      testified about the amount of time the Children would spend in the car if Father

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 4 of 23
      had to transport them to St. Mary’s from his house. Specifically, Father

      testified that T.W. would spend an hour and twenty minutes in the car going to

      St. Mary’s and back and that Z.W. would spend “double that” on days he

      attended preschool. Tr. Vol. II at 61. In addition, Father presented as evidence

      the testimony of Doctor John Newbauer, a custody consultant. Dr. Newbauer

      recommended that Father have primary physical custody because of the

      “opportunity” for the Children to attend Canterbury, Father’s and Jennifer’s

      flexible work schedules that can “adjust” to meet the Children’s needs, and

      because “there’d be less interruption with the [C]hildren’s schedules[.]” Id. at

      22.


[9]   Following the hearing, the trial court entered the following findings of fact and

      conclusions thereon:


              APPLICABLE FACTS:


              15. Although granted parenting time as set out in the Indiana
              Parenting Time Guidelines, [Father] exercises parenting time
              with the children much more often than set out therein. The
              children spend nearly half of their time with their father. This is
              done with [Mother’s] consent. The extra parenting time occurs
              because of [Mother’s] work schedule, [Mother’s] generosity
              concerning the exercise of parenting time, and [Father’s] ability
              and desire to have the children in his presence, rather than have
              the children in a daycare or under the supervision of one of
              [Mother’s] relatives.


              16. The children attend daycare, preschool, and/or school at a
              Catholic school in Avilla, Indiana (St. Mary’s). Both [Mother]


      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 5 of 23
        and [Father] take responsibility for transporting the children to
        and from the school.


        17. Because of his lack of regular work hours, his access to
        Jennifer Westafer’s income, and his expense-free living situation,
        [Father] has the time and money to enroll the children in an
        exclusive, private, expensive, highly regarded, non-
        denominational Christian school located in southwest Fort
        Wayne (Canterbury). The school is close to [Father] and
        Jennifer’s current residence. [Father] and Jennifer Westafer both
        prefer that the children attend this school, especially since they
        often transport the children to school, and the school is much
        closer to their home. As an alternative, [Father] suggests, for his
        convenience, that the children attend school in the Aboite-
        Homestead schools of southwest Fort Wayne.


        18. The Canterbury school, St. Mary’s Catholic school, and the
        Aboite-Homestead schools all have excellent ratings and
        recommendations. Any of these systems would provide a first-
        rate education for the children.


        19. The St. Mary’s system has done no harm whatsoever to the
        children.


                                              * * *


        27. Dr. Newbauer proffered an opinion on custody and
        parenting time for the children. The opinion is based upon his
        evaluation of the facts, and not the mental conditions and
        personality traits of the parties. Primarily he supports his
        conclusions and recommendations contained in the report by
        passing judgment based upon “. . . the distance between the
        parent’s homes . . .” and on his belief that “. . . the opportunities
        at Canterbury and Southwest Allen County seem to me to be
        even better in the long run.” [Emphasis added.]

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 6 of 23
        28. Dr. Newbauer’s opinion does not appear to be based upon
        his expertise or education; instead it appears to be his attempt to
        substitute his judgment for that required of the Court. Nothing
        about Dr. Newbauer’s past training puts him in a position to
        decide issues outside of his area of expertise. Dr. Newbauer’s
        judgment concerning which school is best for the children has
        nothing to do with his training as a psychologist or child custody
        evaluator. And certainly, the conclusion concerning the
        children’s travel (which exists because the Father’s wish to have
        extra time with the children, coupled with the Father’s decision
        to live in southwest Fort Wayne) does not demand a doctorate
        degree in counseling and guidance.


        29. [Mother] earned $30,514 in 2018.


        30. [Father] earned $23,248 in 2017 and $10,970 in 2018 (after
        business deductions and expenses).


        31. [Father] holds a bachelor’s degree. He has potential to earn
        much more than he actually earns. Additionally, from his
        business earnings, he takes substantial deductions for travel,
        advertising, and the like. [Father] also benefits from the charity
        of his current wife’s family, including gifts of money ($15,000.00
        in December of 2018) and the cost-free use of his father-in-law’s
        property. [Father] lives with a much more enhanced lifestyle
        than his impoverished income would support.


                                              * * *


        DISCUSSION:


                                              * * *




Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 7 of 23
        41. In part, this custody battle between the parties exists because
        the children that are the subject of this cause were raised in the
        Catholic Church and were baptized as Catholics. Although the
        children are not placed in any physical or emotional danger by
        attending a Catholic school or Catholic mass, [Father] insists that
        the children no longer be Catholic or participate in the
        ceremonies operating with the Church. Because [Mother] insists
        that the children remain Catholic (as they have always been),
        [Father] asserts that [Mother] is unwilling to make joint decisions
        with him as required by the joint custody agreement. To the
        contrary, it seems that the parties long ago decid[ed] jointly that
        the children would be raised as Catholics. It is [Father] that is
        being the obstinate and mulish party by insisting that the decision
        concerning Catholicism be changed simply because he has
        decided to be a protestant Christian.


        42. Otherwise, this custody battle exists because [Father] has a
        new life with a new wife. The new life and its lifestyle entails
        living in an elegant house with grand amenities. The new house
        if much farther from Noble County, where the parties resided
        during the marriage. With the new life comes economic freedom
        which allows [Father] a carefree employment situation. This in
        turn allows [Father] more time to have the children when they
        would otherwise have to be in work-related daycare. In other
        words, [Father] can and would pamper and perhaps indulge the
        children more than [Mother] can because of this freedom. He
        believes he can provide the best of everything for the children.
        As such, he believes what he would provide is in the children’s
        best interests. [Father] appears to define “the best” solely upon
        the new-found ability to share his and his wife’s available wealth
        with the children.


        43. There are some changed circumstances that have come to
        exist since the Court granted the parties their dissolution of
        marriage. [Mother] must work to survive, and has found
        reasonable employment involving her trained profession.

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 8 of 23
        [Father] has a new wife and a new house and a new religion, and
        with these three things, a new way of life. [Father] now has time
        on his hands.


                                           ***


        45. None of the changed conditions have shown that the current
        order of custody is not in the children’s best interests. In fact, the
        children seem to thrive under the circumstances existing and that
        have existed.


        46. The current custody order appears to be in the children’s best
        interest, especially in light of [Mother’s] liberal attitude toward
        [Father’s] parenting time. Further, the court recognizes that a
        large portion of the children living in the United States attend
        some sort of daycare. Attending daycare is normal. The fact that
        a child may or must attend daycare while a parent works is not
        found to be a substantial change in conditions that warrant a
        change in custody. Should [Father] prefer not to travel to have
        his children during [Mother’s] work hours, the children certainly
        could, like millions of other children throughout the United
        States, be in daycare. This would also solve [Father’s] travel
        dilemma that he finds to be so troubling. [Father’s] choice to
        have the children with him rather than have the children stay
        with [Mother’s] family or at a daycare during her work hours,
        while commendable, is not a reason to change the custody
        arrangement or order.


        47. The fact that the children will not or cannot attend the
        Canterbury school is not a reason for a change of custody. Just
        as not every lawyer can go to Harvard Law School, not all
        children have to go to the best school. Many fine lawyers did not
        go to Harvard, many great psychologists went to Ball State rather
        than Stanford University, and many bright children have had the
        best educations without having to go to Canterbury. Further,

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 9 of 23
        while [Father] and Dr. Newbauer laud the merits of Canterbury,
        many other citizens of northeast Indiana would also applaud the
        virtues of their own schools. Again, the Court should not change
        custody just so that the children can become proud parents at the
        Canterbury schools.


        48. . . . [C]ontinuity in custody is a key element in determining
        what is in the best interests of a child. Moreover, . . . most if not
        all changed conditions forwarded by [Father] are not sufficient to
        cause a change of custody. For example, [Father’s] move to Fort
        Wayne, and the inconvenience that may cause him, is not
        sufficient to warrant a change of custody. The changes in
        [Father’s] monetary and social status is not sufficient to modify
        custody. The change in [Father’s] religious beliefs or wish for the
        children’s educational training should not be a basis for
        modification of custody.


        49. This cause ferments quickly. [Father] is proud of his current
        living situation. He does not want to change that situation to
        accommodate [Mother’s] living situation. The Court
        understands [Father’s] satisfaction with that situation. Also, he
        and his wife Jennifer want to spend as much time with his
        children as possible and do for them as much as possible. The
        Court understands that wish also. However, [Father] wants the
        Court to require [Mother] to bend to his wishes. [Father’s]
        wishes and dreams for his children and his belief that, he, above
        all, knows what is best for those children, do not create a reason
        to change the custody order.


                                           ***


        51. [Mother] requests an award of attorney fees and other costs,
        including deposition fees and fees for an appraisal. Due to
        [Mother’s] income, and due to the great burden imposed on her
        in defending this action, coupled with [Father’s] current lack of

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 10 of 23
        any appreciable living expenses, [Father] should contribute
        toward a portion of those fees.


        52. [Father] provided the Court with a Child Support Obligation
        Worksheet. That worksheet attributes weekly income to [Father]
        of $295.00 per week and to [Mother] of $594.00 per week. It
        ignores [Father’s] in-kind income, his lack of living expenses, his
        substantial deductions for expenses from his gross receipts, and
        the gifts of his in-laws. Because of the same, the Court finds that
        it should not consider that worksheet in determining whether to
        modify child support.


        53. [Mother] provided the Court with a Child Support
        Obligation Worksheet. That worksheet attributes weekly income
        to [Father] of $1,900.31 per week and to [Mother] of $646.272
        [sic] per week. It properly attributes [Father’s] in-kind income,
        his lack of living expenses, his substantial deductions for
        expenses from his gross receipts, and the gifts of his in-laws. It
        also considers the potential income attainable by [Father] should
        he choose to work fulltime and use the college degree he earned.
        Because of the same, the Court finds that it should use this
        worksheet in determining whether to modify child support.


        54. [Father] has a current child support obligation of $115.00.


        55. . . . The old amount [of child support] differs by more than
        twenty percent (20%) from the new computation. The
        modification should be granted. . . .


Appellant’s App. Vol. II at 16-27 (some alterations and omissions in original).

Accordingly, the court denied Father’s motion to modify custody, increased

Father’s child support obligation to $272.00 per week, and ordered Father to



Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 11 of 23
       pay $5,000 of Mother’s attorney’s fees. The court also denied Father’s request

       for attorney’s fees. This appeal ensued.


                                        Discussion and Decision
                                     Issue One: Modification of Custody

[10]   Father first contends that the trial court abused its discretion when it denied his

       petition to modify custody. 2 As our Supreme Court has explained:


                [T]here is a well-established preference in Indiana for granting
                latitude and deference to our trial judges in family law matters.
                Appellate courts are in a poor position to look at a cold transcript
                of the record and conclude that the trial judge, who saw the
                witnesses, observed their demeanor, and scrutinized their
                testimony as it came from the witness stand, did not properly
                understand the significance of the evidence. On appeal, it is not
                enough that the evidence might support some other conclusion,
                but it must positively require the conclusion contended for by
                appellant before there is a basis for reversal. Appellate judges are
                not to reweigh the evidence nor reassess witness credibility, and
                the evidence should be viewed most favorably to the judgment.


       Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quotation marks and

       citations omitted). Further, where, as here, the trial court entered findings of




       2
         Father first appears to assert that the trial court erred when it concluded that it could not consider events
       that had occurred prior to the date Father filed a motion to dismiss his first motion to modify custody.
       Father maintains that he did not make a “judicial admission” when he filed that motion to dismiss and, as
       such, the court should have considered changes in conditions that had occurred prior to that date.
       Appellant’s Br. at 26. However, the court did consider events that had occurred prior to the date Father filed
       his motion to dismiss the first petition, and the court concluded that no substantial change in circumstances
       had occurred “regardless of which date” it considered. Appellant’s App. Vol. II at 24. Father has not shown
       any error on this issue.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020                     Page 12 of 23
       fact and conclusions thereon, we apply “a two-tiered standard of review that

       asks whether the evidence supports the findings, and whether the findings

       support the judgment.” Id. at 123.


[11]   The party seeking to modify custody bears the burden of demonstrating the

       existing custody should be altered. Id. at 124. “[T]his ‘more stringent standard’

       is required to support a change in custody, as opposed to an initial custody

       determination[] where there is no presumption for either parent because

       ‘permanence and stability are considered best for the welfare and happiness of

       the child.’” Id. (quoting Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)).


[12]   Pursuant to Indiana Code Section 31-17-2-21, a trial court may not modify a

       child custody order unless the modification is in the best interests of the

       Children and there is a substantial change in one or more of the factors

       enumerated in Indiana Code Section 31-17-2-8. And Section 8 provides that

       the court shall consider the following factors: the age and sex of the children;

       the wishes of the children’s parent or parents; the wishes of the children, with

       more consideration given if the children are at least fourteen years of age; the

       interaction and interrelationship of the children with the their parents, sibling,

       and any other person who may significantly affect their best interests; the

       children’s adjustment to the their home, school, and community; the mental

       and physical health of all individuals involved; evidence of a pattern of

       domestic or family violence by either parent; evidence that the children have

       been cared for a by de facto custodian; and a designation in a power of attorney

       of the children’s parent or de facto custodian. Ind. Code § 31-17-2-8 (2019).

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 13 of 23
[13]   On appeal, Father contends that the court erred when it found that no

       substantial change had occurred. Specifically, Father maintains that the

       Children started a new school in a new town, that Mother and Father disagreed

       about the age Z.W. should start kindergarten, that Mother moved without

       providing notice to Father, and that the parties were not exercising parenting

       time as provided for in the original custody order. Father maintains that those

       are “substantial changes warranting revisiting custody[.]” Appellant’s Br. at

       29. 3


[14]   Here, the trial court acknowledged that, since the dissolution of the parties’

       marriage, both Mother and Father had moved, the Children have started at a

       Catholic school that Father “prefer[s]” the Children not attend, and Father

       exercises parenting time “much more often” than set out in the original order.

       Appellant’s App. Vol. II at 18. However, the court also concluded that “the

       changed conditions forwarded by [Father] are not sufficient to cause a change

       of custody.” Id. at 25. And it is not our role to substitute our judgment for the

       court’s. See Gertiser v. Gertiser (In re Marriage of Gertiser), 45 N.E.3d 363, 369




       3
         Father also asserts that “Mother is not including Father in the decision making” and that that warranted a
       change in custody. Appellant’s Br. at 33. Specifically, Father contends that Mother relocated without
       notifying him and that Mother enrolled Children in St. Mary’s without Father’s participation. Mother
       acknowledges that she did not file a notice of change of residence with the trial court. However, Mother
       testified that she notified Father that she had purchased the home before she moved. Tr. Vol. III at 7; see also
       Ex. Vol. VI at 10. Further, the evidence demonstrates that, while Father did not want the Children to attend
       St. Mary’s, he ultimately “agreed” that Mother could enroll T.W. in preschool there. Tr. Vol. II at 154.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020                      Page 14 of 23
       (Ind. 2015). Rather, our role is “only to determine whether the evidence

       supports the findings and whether those findings support the judgment.” Id.


[15]   And the evidence shows that, since the parties dissolved their marriage, Mother

       moved to a house that was “approximately a mile” away from the hospital

       where she works and near the Children’s cousins that the Children see

       “[w]eekly.” Tr. Vol. II at 176, 183. The evidence also demonstrates that, while

       Father wanted the Children to attend a prestigious Christian school near his

       home, the school Mother chose for the Children is “identified” by the State of

       Indiana “as an ‘A’ school” and a “4 Star school.” Tr. Vol. III at 54.


[16]   The evidence further demonstrates that, while Mother’s work schedule has

       changed since the dissolution of the marriage, she now works two twelve-hour

       days per week on a three-week rotating schedule and every third weekend,

       which schedule would only change if she needed it to. The evidence also

       demonstrates that Father exercises additional parenting time because of

       Mother’s work schedule and because Father had “concerns” about Mother’s

       father watching the Children while Mother was at work. Id. at 61.


[17]   That evidence supports the trial court’s thorough and extensive findings, and

       the findings support the conclusion that there has not been a substantial change

       in conditions and that modification is not in the Children’s best interests. 4 The




       4
         Father also asserts that several of the trial court’s findings are not supported by the evidence. However,
       Father does not show how those challenged findings are material to his petition.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020                     Page 15 of 23
       findings and conclusions are not clearly erroneous, and the trial court did not

       otherwise abuse its discretion when it denied Father’s motion to modify

       custody.


                                  Issue Two: Child Support Obligation

[18]   Father next asserts that the trial court erred when it modified Father’s child

       support obligation. As this Court has stated:


               Child support calculations are made utilizing the income shares
               model set forth in the Indiana Child Support Guidelines. The
               Guidelines apportion the cost of supporting children between the
               parties according to their means, on the premise that children
               should receive the same portion of parental income after a
               dissolution that they would have received if the family had
               remained intact. The trial court is vested with broad discretion in
               making child support determinations. A calculation of child
               support under the Guidelines is presumed to be valid.


               We will reverse a trial court’s grant or denial of a request for
               modification of child support only where the court has abused its
               discretion. An abuse of discretion occurs when the trial court
               misinterprets the law or the decision is clearly against the logic
               and effects of the facts and circumstances before the court. We
               do not reweigh the evidence or judge the credibility of the
               witnesses upon review; rather, we consider only the evidence
               most favorable to the judgment and the reasonable inferences to
               be drawn therefrom.


       Sandlin v. Sandlin, 972 N.E.2d 371, 374-75 (Ind. Ct. App. 2012) (citations

       omitted).




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 16 of 23
[19]   On appeal, Father asserts that the trial court erred when it calculated his child

       support obligation because it improperly: (1) imputed potential income to him;

       (2) included one-half the rental value of his home; and (3) included gifts Father

       had received from his in-laws when it determined his weekly gross income. We

       address each argument in turn.


                                               Potential Income

[20]   Father first asserts that the trial court erred when it imputed potential income to

       him. It is well settled that the trial court “may impute income to a parent for

       the purposes of calculating child support upon a determination that he or she is

       voluntarily underemployed.” Id. at 375. The purpose of imputing income is to

       discourage parents from avoiding significant child support obligations by being

       unemployed or taking a lower paying job. Id. However, the Guidelines do not

       require or encourage parents to make career decisions based strictly upon the

       size of potential paychecks, nor do the Guidelines require that parents work to

       their full economic potential. See id. To determine whether potential income

       should be imputed, the trial court should review the obligor’s work history,

       occupational qualifications, prevailing job opportunities, and earning levels in

       the community. Id.


[21]   Here, both parties presented child support obligation worksheets to the trial

       court. The trial court declined to follow Father’s worksheet because it

       “ignore[d]” several factors. Appellant’s App. Vol. II at 26. Rather, the court

       decided to use Mother’s worksheet. In its order, the court noted that Mother’s

       worksheet “consider[ed] the potential income attainable by [Father] should he
       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 17 of 23
       choose to work fulltime and use the college degree that he earned.” Id. Based

       on that statement, Father contends that the court imputed potential income to

       him, which he contends was erroneous because the trial court did not find that

       he was underemployed and because there was no evidence of Father’s

       qualifications, prevailing job opportunities, or earning levels in his community.

       However, contrary to Father’s assertions, the trial court did not impute

       potential income to him.


[22]   The trial court explicitly adopted Mother’s child support worksheet, which

       attributed a weekly income to Father in the amount of $1,900.31. In reaching

       that income, Mother used the following calculation:


               in 2018 Advocare income of $17,826 (including $6,136 car and
               truck expenses added back); gift of $4,375 per month (one-half of
               rental value of residence); $15,000 gift from R. Bruce Dye 12-28-
               18; and $13,490.27 (half of $26,908.54 value of gift from Jennifer
               Westafer’s mother in 2018); total is $98.816.27 which is
               $1,900.31 per week.


       Ex. Vol. IV at 124.


[23]   That calculation does not include any potential income as a result of Father’s

       unemployment or underemployment. Rather, it only included Father’s actual

       income from 2018, one-half of the rental value of his house, and gifts from his

       in-laws. Thus, it is clear that, despite the court’s reference to “potential

       income” in its order, the trial court did not actually impute any potential

       income to Father when it calculated his child support obligation.


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 18 of 23
                                            Rental Value of Home

[24]   Father next asserts that the trial court erred when it imputed income to him in

       the amount equal to one-half the rental value of his home. Specifically, Father

       contends that it was “clearly not appropriate to impute the actual rental value as

       income; even if one accepts the premise that Father would have to pay $4,375

       in rent, that does not put $4,375 in Father’s pocket every month or make $4,375

       available to pay child support.” Appellant’s Br. at 50.


[25]   The Indiana Supreme Court has previously addressed a similar situation. In

       Glass v. Oeder, Glass lived rent-free in a house that was owned by a trust. The

       trial court found that the value of the rent Glass was not paying was imputed

       income in the amount $18,000. 716 N.E.2d 413, 417 (Ind. 1999). Glass

       appealed, and our Supreme Court held that his rent-free living arrangement

       “provides him with a lower living cost that presumably frees up money for the

       support of his children and was a proper basis for the trial court to impute

       income.” Id. In reaching that conclusion, the Court relied on the Indiana

       Child Support Guidelines’ statement that “‘regular and continuing payments

       made by a family member, subsequent spouse, roommate, or live-in friend that

       reduce the parent’s cost for rent, utilities, or groceries, should be the basis for

       imputing income.’” Id. (quoting Ind. Child Supp. G. 3(A) Cmt. 2(E)).


[26]   Similarly, here, Father’s father-in-law owns Father’s house and allows Father to

       live in the house without paying rent or utilities. Those regular and continuing

       payments made by Father’s father-in-law provided Father with a lower cost of

       living. See id. And because Father does not have to pay rent or utilities, the

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 19 of 23
       trial court was free to presume that Father has additional money for child

       support. As such, we cannot say that the trial court clearly erred when it

       imputed one-half of the rental value of the home to Father.


[27]   Still, Father asserts that it was error for the court to impute half the value of the

       rental property, $4,735.00, because that amount exceeds his actual income. But

       Father has not cited any authority to support his position that a trial court

       cannot impute the full benefit of the rental value of a home simply because that

       home is worth more than Father could afford if he had to pay rent. Rather, as

       discussed above, Father received a benefit that lowered his cost of living, and

       the court did not abuse its discretion when it imputed that benefit to Father.


                                        Gifts from Father’s In-Laws

[28]   Father further contends that the trial court erred when it included the value of

       in-kind gifts he received from Jennifer’s parents. Specifically, Father asserts

       that there was “no evidence” that the gifts from Father’s in-laws, which

       included $15,000 and one-half the value of an investment account, “were

       regular and continuing payments[.]” Appellant’s Br. at 51. To support his

       assertion, Father relies on the commentary to the Indiana Child Support

       Guidelines, which states that it “may be inappropriate to include as gross

       income occasional gifts received.” Ind. Child Supp. G. 3(A) cmt. (d).


[29]   However, other than quoting that portion of the commentary to the Child

       Support Guidelines, Father has not cited any authority to support his position

       that the trial court was precluded from considering one-time gifts or that the


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 20 of 23
       court otherwise abused its wide discretion when it included two large monetary

       gifts from Father’s in-laws in its calculation of Father’s weekly gross income.

       Rather, the commentary cited by Father states that it may be inappropriate to

       consider one-time gifts. It does not prohibit the court from considering

       occasional gifts. Further, the Child Support Guidelines define weekly gross

       income to include “income from any source,” including “gifts.” Ind. Child

       Supp. G. 3(A)(1). And, the commentary states that “[w]hether or not the value

       of in-kind gifts should be included in a parent’s weekly gross income is fact-

       sensitive and requires careful consideration of the evidence in each case.” Ind.

       Child Supp. G. 3(A) cmt. (d).


[30]   Here, the trial court carefully considered the facts of this case, including the fact

       that Father lives rent-free and that he has received two large monetary gifts

       from his in-laws while Mother only earns $30,000 per year. Father has not met

       his burden on appeal to demonstrate that the court abused its discretion when it

       included those gifts in its calculation of his weekly gross income. We therefore

       affirm the court’s order increasing Father’s child support obligation.


                                       Issue Three: Attorney’s Fees

[31]   Finally, Father asserts that the trial court erred when it ordered him to pay a

       portion of Mother’s attorney’s fees. As this Court has stated:


               A determination regarding attorney fees in proceedings to modify
               a child support award is within the sound discretion of the trial
               court and will be reversed only upon a showing of a clear abuse
               of that discretion. In determining whether to award attorney
               fees, the trial court must consider the parties’ resources, their
       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 21 of 23
               economic condition, their ability to engage in gainful
               employment, and other factors that bear on the award’s
               reasonableness.


       Martinez v. Deeter, 968 N.E.2d 799, 810 (Ind. Ct. App. 2012) (citations omitted).

       “Consideration of these factors promotes the legislative purpose behind the

       award of attorney fees, which is to insure that a party in a dissolution

       proceeding, who would not otherwise be able to afford an attorney, is able to

       retain representation.” Goodman v. Goodman, 94 N.E.3d 733, 751 (Ind. Ct. App.

       2018), trans. denied.


[32]   Here, the trial court ordered Father to pay $5,000, or approximately fifty

       percent, of Mother’s attorney’s fees and litigation expenses. Father asserts that

       that was an abuse of discretion because “Mother makes more income than

       Father,” there was no burden on Mother to defend the action because “she

       wanted the Court to decide,” the trial court “made up for” Father’s lack of

       living expenses when it imputed income to Father in its child support

       calculation, and there was no evidence that Mother was unable to pay her

       attorney. Appellant’s Br. at 52.


[33]   However, the court considered the parties’ respective resources and economic

       conditions. Indeed, the court found that Father earned $23,248 in 2017 and

       $10,970 in 2018, and the court found that Mother earned $30,514 in 2018. But

       the court also found that Mother “must work to survive” while Father has a

       “current lack of any appreciable living expenses.” Appellant’s App. Vol. II at

       24, 26. Based on those factors, the court found that Father should pay a portion

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 22 of 23
       of Mother’s attorney’s fees. We conclude that the trial court did not abuse its

       discretion, and we affirm the court’s order that Father pay $5,000 of Mother’s

       attorney’s fees.


                                                   Conclusion

[34]   In sum, the trial court did not abuse its discretion when it denied Father’s

       request to modify custody. Further, the court did not err when it calculated

       Father’s child support obligation. And the court did not abuse its discretion

       when it ordered Father to pay a portion of Mother’s attorney’s fees. We affirm

       the trial court’s order.


[35]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2254 | March 5, 2020   Page 23 of 23
