MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be
                                                                           May 30 2019, 8:46 am
regarded as precedent or cited before any
court except for the purpose of establishing                                       CLERK
                                                                               Indiana Supreme Court
the defense of res judicata, collateral                                           Court of Appeals
                                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Amanda J. Mulkey                                        Katherine Ridenour
Albion, Indiana                                         Paul R. Strurm
                                                        Shambaugh Kast Beck & Williams,
                                                        LLP
                                                        Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

A. M.,                                                  May 30, 2019
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        18A-DR-2232
        v.                                              Appeal from the Whitley Superior
                                                        Court
D. R.,                                                  The Honorable Douglas M. Fahl,
Appellee-Petitioner.                                    Judge
                                                        Trial Court Cause No.
                                                        92D01-0906-DR-171



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019                       Page 1 of 24
                               Case Summary and Issues
[1]   Following A.M. (“Mother”) and D.R.’s (“Father”) divorce and subsequent

      post-dissolution agreement, the parties shared joint legal custody over their

      three minor children, M.R., born October 16, 2000; B.R., born November 24,

      2002; and C.R., born January 6, 2006 (collectively the “Children”), with Father

      having primary physical custody. Mother filed a Motion to Modify Custody,

      Parenting Time, and Child Support and the parties temporarily agreed that

      Mother would have primary physical custody of M.R. with Father having

      primary physical custody of B.R. and C.R. Due to Mother’s concerns about

      Father’s wife, the parties agreed that Father would not allow M.R. to be

      supervised by his spouse. After a hearing, the trial court issued its order, which

      adopted nearly all of Father’s proposed findings and conclusions; denied

      modification of legal custody; granted Mother primary physical custody of

      M.R; removed the restriction prohibiting Father’s wife from supervising M.R.;

      ordered child support; and required each party to pay half of the guardian ad

      litem fees.


[2]   Mother appeals raising several issues which we restate as: (1) whether the trial

      court erred in adopting nearly verbatim Father’s proposed order; (2) whether

      the trial court’s decision to deny in part and grant in part Mother’s motion to

      modify custody is clearly erroneous; (3) whether the trial court abused its

      discretion in its parenting time decision; (4) whether the trial court erred in

      calculating child support; and (5) whether the trial court abused its discretion in

      allocating litigation expenses. We conclude the trial court did not err in

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 2 of 24
      adopting Father’s proposed order, denying modification of legal custody,

      removing the agreed upon parenting time restriction, or by ordering the parties

      to each pay half of the litigation expenses. Accordingly, these issues are

      affirmed. However, concluding the trial court erred in modifying physical

      custody of M.R. without finding a substantial change in one or more statutory

      factors and in its child support calculation, we reverse the trial court’s order in

      this respect and remand these issues to the trial court for further proceedings.



                            Facts and Procedural History
[3]   During the parties’ marriage, they had three Children. In 2009, a petition for a

      dissolution of marriage was filed. On August 29, 2012, the trial court approved

      the parties’ dissolution decree and settlement agreement, in which the parties

      were granted joint legal and physical custody of the Children. Since the parties’

      divorce, Father married L.R. and Mother married J.M.


[4]   In June 2014, the parties entered into an Agreed Entry for Father to have

      primary physical custody of B.R. and C.R. and Mother to have primary

      physical custody of M.R. Approximately four months later, in October 2014,

      Father filed a petition to modify custody of M.R. and two months after, in

      December 2014, Mother filed a petition to modify custody of B.R. and C.R. A

      hearing was held, and in May 2015, the trial court granted Father sole legal

      custody of M.R. and denied Mother primary physical custody of B.R. and C.R.




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 3 of 24
[5]   The parties subsequently entered into a second Agreed Entry and (among other

      things) agreed to joint legal custody of the Children with Father having primary

      physical custody of the Children. The trial court approved the parties’ second

      Agreed Entry on August 24, 2015.


[6]   On August 17, 2016, Mother filed a Verified Petition to Modify Custody,

      Parenting Time, and Child Support, as well as a Motion to Refer the Case to

      Mediation. Mother contended in her petition that “there has been a continuing

      and substantial change of circumstances that makes the current order

      unreasonable and not in the best interests of the parties’ [C]hildren.” Amended

      Appendix to Brief of Appellant, Volume II at 66. Mother did not provide any

      specific allegations in her petition.


[7]   On September 29, 2016, Mother filed a Motion for Expedited Hearing along

      with an affidavit asserting that the Children “are believed to be endangered if

      returned to [Father] or his parenting time is unsupervised based on the recent

      actions of [Father] and his wife [L.R.].” Id. at 73. Notably, in her affidavit,

      Mother alleged: Father and L.R. drink heavily; L.R. drives drunk with the

      Children; L.R. frequently supervises the Children due to Father’s occupation,

      which requires him to travel out of state; M.R. attempted suicide by self-

      mutilation on September 16;1 and L.R. was arrested on September 23 for

      shoplifting while B.R. was with her. Mother also filed a motion for an in




      1
          M.R. has resided with Mother since this date.


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 4 of 24
      camera interview with the Children and a motion seeking counseling for the

      children.


[8]   A hearing on Mother’s motions was held on November 3, 2016. The trial court

      ordered the parties to participate in mediation and appointed a mediator. The

      parties agreed2 that Mother would have temporary physical custody of M.R.

      with Father having parenting time with M.R. Father also agreed not to allow

      M.R. to be supervised by his wife, L.R., without him. Later that month, the

      trial court appointed Andrew Grossnickle as Guardian Ad Litem (“GAL”) to

      represent the interests of the Children. Each party was ordered to pay half of

      the mediator and GAL fees. Mother filed numerous motions in the ensuing

      months, the only one of which is relevant here is Mother’s January 2017

      Motion for Re-Allocation of Litigation Expenses, which the trial court took

      under advisement pending the outcome of mediation. Mediation was

      ultimately unsuccessful, and the trial court considered this motion at the same

      time as the remainder of the pending motions.


[9]   In June 2017, Mother filed a Motion to Abate Child Support based on her

      temporary primary physical custody of M.R. and Father filed a Motion to

      Modify Parenting Time with M.R. in July 2017, in which he sought to remove

      the restriction that prevents his wife from supervising M.R. On March 6, 2018,

      the trial court held a hearing on the outstanding motions: Mother’s Petition to



      2
       The Chronological Case Summary entry for November 3, 2016 states “[b]y agreement of the parties,
      [Mother] has temporary custody of [M.R.].” Id. at 16-17.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019                Page 5 of 24
       Modify Custody, Parenting Time, and Child Support; her Motion to Abate

       Child Support; her Motion for Re-Allocation of Litigation Expenses; and

       Father’s Motion to Modify Parenting Time. Following the hearing, the parties

       each submitted their proposed findings of fact and conclusions of law.


[10]   On June 6, 2018, the trial court entered its findings of fact and conclusions

       thereon. The trial court denied Mother’s motion to modify and the parties were

       granted joint legal custody with Father having primary physical custody of B.R.

       and C.R. and Mother having primary physical custody of M.R. The trial court

       found and concluded, in relevant part:


               17. [Mother] wants to share physical custody of the [C]hildren
               on an equal basis[.]


               18. The GAL recommends:


                       18.1 The parties have and retain joint legal custody of the
                            parties’ minor [C]hildren.


                       18.2 Mother shall have primary physical custody of
                            [M.R.]


                       18.3 Father shall have primary physical [custody] of
                            [B.R. and C.R.]


                       18.4 The parties should coordinate their schedules to
                            allow the [C]hildren to remain together during
                            parenting time, i.e., mid-week parenting, alternate
                            weekend parenting time, extended parenting time
                            and Holiday Parenting times.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 6 of 24
        19. [Father] would like the Court to adopt the GAL’s
        recommendation.


        20. [Mother] is requesting the Court adopt a shared parenting
        plan in which the parties have the [C]hildren on an equal basis,
        specifically, the parties sharing time with the [C]hildren during
        alternating seven-day periods.


        21. Father earns, or is capable of earning a weekly gross income
        of $880.00 (40 hours x $22.00 per hour).


        22. Mother earns, or is capable of earning a weekly gross income
        of $648.80 (40 hours x $16.22 per hour).


        23. Mother pays $20.77 per week in health care insurance for the
        [C]hildren ($20.77 ÷ 3 children = $6.92 per child/per week).


        24. Father pays an annual average weekly amount of $52.00 in
        work related child care expenses for the [C]hildren.


        ***


        [Custody]


        34. In the instant case, Mother proffered no evidence justifying a
        modification of custody. To the contrary, Mother specifically
        requested the parties retain joint legal custody status. Further,
        the GAL recommended that the parties retain joint legal custody
        of the minor [C]hildren. Finally, Father requested the Court
        adopt the GAL recommendations.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 7 of 24
        35. There is not a substantial change in one or more of the
        factors which the Court may consider under Indiana Code § 31-
        17-2-8.


        36. A parenting time order may only be modified upon a finding
        that modification is in the child’s best interests. In the instant
        case, the parties agreed that no modification of the parties’ joint
        legal custody status is necessary or warranted. The parties shall
        have and retain joint legal custody of the minor [C]hildren.
        Thus, [Mother’s] motion to modify custody is DENIED.


        ***


        [Parenting Time]


        39. Mother acknowledged that the current parenting plan . . . is
        working for her [C]hildren.


        40. It is in the best interest of the parties’ child, that Mother shall
        have primary physical custody of [M.R.]. Unless otherwise
        agreed, Father shall have access to the child, [M.R.], that is
        afforded a non-custodial parent as provided in the Indiana
        Parenting Time Guidelines, and as the parties otherwise agree.


        41. It is in the best interest of the parties’ children, that Father
        shall have primary physical custody of [B.R. and C.R.]. Unless
        otherwise agreed, Mother shall have access to the children, [B.R.
        and C.R.], that is afforded a non-custodial parent as provided in
        the Indiana Parenting Time Guidelines, and as the parties
        otherwise agree.


        42. [The parties] shall have all the [C]hildren on their respective
        alternate weekends. Unless otherwise agreed, Holiday Parenting


Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 8 of 24
        Time schedule set forth in the Indiana Parenting Time
        Guidelines is incorporated by reference as if fully set forth herein.


        43. [Children] shall remain together for Holiday Parenting Time
        and Extended Parenting Time purposes. For interpretation of
        the Indiana Parenting Time Guidelines only, Mother shall be
        considered the custodial parent and [Father] shall be considered
        the non-custodial parent.


        ***


        45. On November 3, 2016, [Father] agreed on a temporary basis
        not to allow [M.R.] to be supervised by his spouse, [L.R.]. There
        was not sufficient evidence offered by Mother justifying a
        continued restriction on Father’s parenting time. As a
        consequence, the Court removes that condition immediately.


        ***


        [Child Support]


        50. Father owes Mother child support for the benefit of the
        [M.R.] in the amount of $83.00 per week. Mother owes Father
        child support for the benefit of [B.R. and C.R.] in the amount of
        $97.00 per week.


        51. Mother shall pay Father child support in the amount of
        $14.00 per week ($97.00 - $83.00) directly to the Indiana Child
        Support Bureau. Mother shall likewise pay any assessed annual
        support service fee.


Amended Appellant’s Brief at 34-39. The parties were ordered to each pay half

of the GAL’s total fees. Mother subsequently filed a Motion to Correct Error

Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 9 of 24
       and Father was given thirty days to respond. Father did not respond, and the

       trial court did not rule on the motion, so it was deemed denied. Mother now

       appeals. Additional facts will be provided as necessary.



                                 Discussion and Decision
                                      I. Standard of Review
[11]   On appellate review of judgments with findings of fact and conclusions of law,

       we “shall not set aside the findings or judgment unless clearly erroneous, and

       due regard shall be given to the opportunity of the trial court to judge the

       credibility of the witnesses.” Ind. Trial Rule 52(A). When reviewing such

       findings, we apply a two-tier standard of review: we first determine whether the

       evidence supports the findings and then whether the findings support the

       judgment. In re Paternity of M.G.S., 756 N.E.2d 990, 996 (Ind. Ct. App. 2001),

       trans. denied. “Findings are clearly erroneous only when the record leaves us

       with a firm conviction that a mistake has been made.” D.G. v. S.G., 82 N.E.3d

       342, 348 (Ind. Ct. App. 2017), trans. denied.


[12]   We do not reweigh the evidence or assess the credibility of the witnesses. Best v.

       Best, 941 N.E.2d 499, 502 (Ind. 2011). Instead, we view the evidence most

       favorably to the trial court’s judgment. Id. “In conjunction with the Trial Rule

       52 standard, there is a longstanding policy that appellate courts should defer to

       the determination of trial courts in family law matters. We accord this

       deference because the trial court, who saw and interacted with the witnesses, is


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 10 of 24
       in the best position to assess credibility and character.” D.G., 82 N.E.3d at 348

       (internal citations omitted).


             II. Adoption of Husband’s Proposed Findings and
                               Conclusions
[13]   We first address Mother’s argument that the trial court erred by adopting

       Father’s proposed findings and conclusions nearly verbatim as its order.

       Mother contends the trial court made “only minor changes” to ten3 of Father’s

       proposed findings, adopted all other proposed findings and conclusions, and did

       not adopt a single finding or conclusion from her proposed order. Amended

       Appellant’s Br. at 26. Therefore, she alleges the trial court’s order contains

       “mischaracterizations and omissions of the testimony and implies that the

       [t]rial [c]ourt failed to scrutinize the findings and conclusions submitted by both

       parties before signing them.” Id.


[14]   In In re Marriage of Nickels, a panel of this court discussed a trial court’s verbatim

       adoption of proposed findings and conclusions:


                In its order, the trial court adopted verbatim Husband’s proposed
                findings numbered 26 through 50 as its findings numbered 16
                through 40. Trial Rule 52(C) encourages trial courts to request
                that parties submit proposed findings of fact and conclusions of
                law and it is not uncommon or per se improper for a trial court to
                enter findings that are verbatim reproductions of submissions by




       3
        Specifically, Mother points out the trial court slightly altered findings 25, 39, 45, 48, 50-53, 56, and 66 from
       Father’s proposed order.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019                        Page 11 of 24
        the prevailing party. Clark v. Crowe, 778 N.E.2d 835, 841 n. 3
        (Ind. Ct. App. 2002) (citing A.F. v. Marion County Office of Family
        and Children, 762 N.E.2d 1244, 1249 (Ind. Ct. App. 2002), trans.
        denied). When a party prepares proposed findings, they “should
        take great care to insure [sic] that the findings are sufficient to
        form a proper factual basis for the ultimate conclusions of the
        trial court.” Marathon Oil Co. v. Collins, 744 N.E.2d 474, 477 n. 2
        (Ind. Ct. App. 2001) (citing Maloblocki v. Maloblocki, 646 N.E.2d
        358, 361 (Ind. Ct. App. 1995)). Moreover, “the trial court should
        remember that when it signs one party’s findings, it is ultimately
        responsible for their correctness.” Id. As noted by this court in
        Clark, we urge trial courts to scrutinize parties’ submissions for
        mischaracterized testimony and legal argument rather than the
        findings of fact and conclusions of law as contemplated by the
        rule. 778 N.E.2d at 841 n. 3.


        We encourage such scrutiny for good reason. As our supreme
        court has observed, the practice of accepting verbatim a party’s
        proposed findings of fact “weakens our confidence as an
        appellate court that the findings are the result of considered
        judgment by the trial court.” Cook v. Whitsell-Sherman, 796
        N.E.2d 271, 273 n. 1 (Ind. 2003) (citing Prowell v. State, 741
        N.E.2d 704, 708-09 (Ind. 2001)). However, as the court also
        noted, verbatim reproductions of a party’s submissions are not
        uncommon, as “[t]he trial courts of this state are faced with an
        enormous volume of cases and few have the law clerks and other
        resources that would be available in a more perfect world to help
        craft more elegant trial court findings and legal reasoning.”
        Prowell, 741 N.E.2d at 708. The need to keep the docket moving
        is properly a high priority for our trial bench. Id. at 709. For this
        reason, the practice of adopting a party’s proposed findings is not
        prohibited. Id. Thus, although we by no means encourage the
        wholesale adoption of a party’s proposed findings and
        conclusions, the critical inquiry is whether such findings, as
        adopted by the court, are clearly erroneous. See Saylor v. State,


Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 12 of 24
               765 N.E.2d 535, 565 (Ind. 2002) (citing Woods v. State, 701
               N.E.2d 1208, 1210 (Ind. 1998)).


       834 N.E.2d 1091, 1095-96 (Ind. Ct. App. 2005) (citations to the record

       omitted).


[15]   Here, as in Nickels, the trial court did not adopt the entirety of Husband’s

       proposed findings and conclusions. See id. Although the trial court did not

       adopt any of Mother’s proposed findings or conclusions and its order is nearly

       verbatim Father’s proposed order, the trial court did make alterations, however

       slight, before adopting them. We view these changes as an indication that the

       trial court did properly scrutinize the findings and conclusions before adopting

       them. Furthermore, the trial court is not prohibited from adopting a party’s

       proposed order, which Mother acknowledges in her brief. The trial court did

       not err in this respect.


                              III. Motion to Modify Custody
[16]   Next, Mother contends the trial court erred in denying her August 17, 2016

       motion to modify custody. When this round of post-dissolution litigation

       began, the situation was: the parties had joint legal custody and Father had

       primary physical custody of all the Children. Mother’s motion sought “to

       modify the current orders regarding custody, parenting time, child support, and

       for all other just and proper relief.” Amended App. to Br. of Appellant, Vol. II

       at 66. During the proceedings, the parties temporarily agreed that M.R. would

       live with Mother. The trial court ultimately denied modification of legal


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 13 of 24
       custody as to all the Children and granted Mother physical custody of M.R.

       only.


[17]   To modify custody, the trial court must find that modification is in the best

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

       provided in Indiana Code section 31-17-2-8. Ind. Code § 31-17-2-21. The trial

       court is obligated to consider all relevant factors, including:


               (1) The age and sex of the child.


               (2) The wishes of the child’s parent or parents.


               (3) The wishes of the child, with more consideration given to the
               child’s wishes if the child is at least fourteen (14) years of age.


               (4) The interaction and interrelationship of the child with:


                       (A) the child’s parent or parents;


                       (B) the child’s sibling; and


                       (C) any other person who may significantly affect the
                       child’s best interests.


               (5) The child’s adjustment to the child’s:


                       (A) home;


                       (B) school; and



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 14 of 24
                    (C) community.


           (6) The mental and physical health of all individuals involved.


           (7) Evidence of a pattern of domestic or family violence by either
           parent. . . .


Ind. Code § 31-17-2-8.4 In determining whether joint custody would be in the

child’s best interests, a court must consider:


           (1) the fitness and suitability of each of the persons awarded joint
           custody;


           (2) whether the persons awarded joint custody are willing and
           able to communicate and cooperate in advancing the child’s
           welfare;


           (3) the wishes of the child, with more consideration given to the
           child’s wishes if the child is at least fourteen (14) years of age;


           (4) whether the child has established a close and beneficial
           relationship with both of the persons awarded joint custody;


           (5) whether the persons awarded joint custody:


                    (A) live in close proximity to each other; and




4
    The remaining factors in this section are inapplicable to this matter and therefore, have been omitted.


Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019                        Page 15 of 24
                            (B) plan to continue to do so; and


                  (6) the nature of the physical and emotional environment in the
                  home of each of the persons awarded joint custody.


       Ind. Code § 31-17-2-15. When considering a modification from joint legal

       custody to sole legal custody, the trial court must determine whether there has

       been a substantial change in one or more of the factors in the joint legal custody

       statute, in addition to considering any substantial change in the factors in

       Indiana Code section 31-17-2-8, as is typically necessary for physical custody

       modifications. J.W. v. M.W., 77 N.E.3d 1274, 1277-78 (Ind. Ct. App. 2017).


[18]   The party seeking modification of custody bears the burden of demonstrating

       that the existing custody should be altered. Kirk v. Kirk, 770 N.E.2d 304, 307

       (Ind. 2002). We review custody modification for an abuse of discretion and

       afford great deference to the trial court in family law matters. Id. An abuse of

       discretion occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before it. Hanks v. Arnold, 674 N.E.2d

       1005, 1007 (Ind. Ct. App. 1996).


[19]   We begin by noting that the trial court’s findings with respect to legal custody

       and primary physical custody appear in both the custody and parenting time

       sections of its order.5 In this case, the trial court concluded that Mother failed




       5
           It appears that the trial court conflated parenting time with physical custody.


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019          Page 16 of 24
       to provide evidence justifying a modification of custody and a substantial

       change in one or more of the enumerated statutory factors had not occurred.

       On appeal, Mother focuses her argument on the trial court’s alleged failure to

       consider the first three factors listed in the joint custody statute. Mother

       contends the evidence demonstrates “significant concerns” regarding Father’s

       fitness because he frequently travels for work and the Children are left with

       L.R.; Father has intentionally failed to communicate with her regarding the

       Children resulting in her missing important events and appointments; and B.R.

       testified that he wanted to have equal time with his parents. Amended

       Appellant’s Br. at 13-15. However, Mother’s Motion to Modify Custody and

       proposed order only address physical custody, not legal custody, and the trial

       court found that Mother “specifically requested the parties retain joint legal

       custody status.” Amended Appellant’s Br. at 36.


[20]   With respect to physical custody, the trial court concluded it is in the best

       interests of the Children that Mother have primary physical custody of M.R.

       and Father have primary physical custody of B.R. and C.R. Because the

       previous custody order granted Father primary physical custody of all Children,

       this constitutes a modification of primary physical custody of M.R., which

       requires the trial court to find that modification is in the best interests of the

       child and there is a substantial change in one or more statutory factors. Ind.

       Code § 31-17-2-21. Although not raised by either party, the trial court failed to

       enter a finding that a substantial change occurred in one or more of the

       statutory factors. In fact, the trial court explicitly found that “Mother proffered


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 17 of 24
       no evidence justifying a modification of custody” but then modified physical

       custody of M.R. Amended Appellant’s Br. at 36. Given these conflicting

       findings, the trial court erred in modifying primary physical custody of M.R.

       without also finding that a substantial change in one or more of the statutory

       factors occurred. Because the findings do not support modification of M.R.’s

       primary physical custody, the trial court’s decision in this respect is clearly

       erroneous. Therefore, we reverse the trial court’s modification of physical

       custody and remand to the trial court to enter findings to support such a

       modification or amend its judgment in accord with the current findings.


                                         IV. Child Support
[21]   Mother also challenges the trial court’s child support calculation arguing the

       trial court failed to include Father’s overtime in its calculation. A trial court’s

       calculation of child support is presumptively valid and will be upheld unless the

       trial court abused its discretion. Ashworth v. Ehrgott, 982 N.E.2d 366, 372 (Ind.

       Ct. App. 2013). A trial court abuses its discretion when its decision is clearly

       against the logic and effect of the facts and circumstances before it or if it

       misinterpreted the law. Id.


[22]   For purposes of child support, weekly gross income includes “income from any

       source . . . and includes . . . income from salaries, wages, commissions,

       bonuses, [and] overtime . . . .” Ind. Child Support Guideline 3(A) (emphasis

       added). The commentary addressing overtime acknowledges that irregular

       income causes difficulty in determining a party’s gross income, is includable in


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 18 of 24
       the total income, but is “very fact sensitive.” Cmt. 2(b). The commentary

       explains, in relevant part:


               Each of the above items is sensitive to downturns in the
               economy. The fact that overtime, for example, has been
               consistent for three (3) years does not guarantee that it will
               continue in a poor economy. . . . Care should be taken to set
               support based on dependable income, while at the same time
               providing the children with the support to which they are
               entitled.


               When the court determines that is it not appropriate to include irregular
               income in the determination of the child support obligation, the court
               should express its reasons. When the court determines that it is
               appropriate to include irregular income, an equitable method of
               treating such income may be to require the obligor to pay a fixed
               percentage of overtime . . . in child support on a periodic but
               predetermined basis (weekly, bi-weekly, monthly, quarterly)
               rather than by the process of determining the average of the
               irregular income by past history and including it in the obligor’s
               gross income calculation.


       Id. (emphasis added).


[23]   At trial, Father testified that he earns $22.00 per hour, works forty hours per

       week, and earns time and a half when he works overtime. However, Father

       also explained that his overtime varies. The trial court found that Father earns

       or is capable of earning a weekly gross income of $880.00, namely forty hours

       at $22.00 per hour. See Amended Appellant’s Br. at 34. Although it is irregular

       income that varies, the trial court excluded Father’s overtime wages without

       providing its reasons for doing so. If the trial court concluded it was

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019    Page 19 of 24
       inappropriate to include Father’s overtime wages in calculating child support, it

       should have provided its reasoning for doing so. Furthermore, the commentary

       encourages trial courts to be “innovative in finding ways to include income that

       would have benefited the family had it remained intact, but [to] be receptive to

       deviations where reasons justify them.” Child Support G. 3, cmt. 2(b). Thus,

       the trial court erred in excluding Father’s overtime without also explaining why

       it was excluded.


[24]   Because we determined the trial court erred in modifying physical custody of

       M.R. without finding a substantial change in one or more statutory factors and

       reverse its judgment, the trial court must also determine child support

       accordingly. In making this determination, the trial court should consider

       Father’s overtime wages by either providing a reason for its exclusion or by

       employing an “equitable method” to incorporate overtime as contemplated in

       the Guidelines and commentary. Id. With respect to Father’s weekly gross

       income, Mother also asserts the trial court committed a computational error by

       listing Father’s weekly gross income on the child support worksheet as $800.00

       rather than the $880.00 to which he testified and which the trial court found as

       a fact in its order. We agree that a discrepancy exists, an issue the trial court

       should resolve on remand.


[25]   Similarly, Mother contends the trial court failed to include a retroactive

       application of a child support modification reflecting the time during which she

       provided custodial care to M.R. The trial court did not resolve this issue.



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 20 of 24
       Accordingly, this issue is remanded to the trial court for a redetermination of

       child support consistent with this opinion.6


                                             V. Parenting Time
[26]   In all parenting time controversies, courts must give foremost consideration to

       the best interests of the child. Hazelett v. Hazelett, 119 N.E.3d 153, 161 (Ind. Ct.

       App. 2019). We review a trial court’s parenting time determination under an

       abuse of discretion standard. Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind. Ct.

       App. 1998), trans. denied. If the record reveals a rational basis supporting the

       trial court’s decision, no abuse of discretion occurred. Id. In reviewing a trial

       court’s determination, we will not reweigh the evidence or judge the credibility

       of the witnesses. Id.


[27]   Mother challenges the removal of the temporary restriction prohibiting L.R.

       from supervising M.R. without Father present. Here, the trial court found

       “[t]here was not sufficient evidence offered by Mother justifying a continued

       restriction on Father’s parenting time.” Amended Appellant’s Br. at 38. Again,

       Mother points to L.R.’s alleged criminal history in support of her argument that

       L.R. does not qualify as a “responsible household family member.”7 This, too,



       6
         Mother’s allegations regarding the authenticity of Father’s childcare expenses is a request for this court to
       reweigh the evidence, which we cannot do. See Best, 941 N.E.2d at 502.
       7
         Mother also takes issue with the trial court’s purported denial of her request for additional parenting time
       during times when Father travels, as well as the removal of the temporary restriction prohibiting L.R. from
       supervising M.R. without Father present. The Indiana Parenting Time Guidelines address the opportunity
       for additional parenting time:



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019                        Page 21 of 24
       is an invitation for this court to reweigh the evidence presented to the trial

       court, which is not our role. Marlow, 702 N.E.2d at 735. L.R. testified she had

       not been convicted of any crime since 2014. L.R. is an adult who resides in the

       home and is related to the Children by marriage. Although the trial court did

       not make an explicit finding regarding L.R., it removed the temporary

       restriction, indicating there was no reason to continue to restrict Father’s

       parenting time. Thus, a rational basis supports the trial court’s parenting time

       decision and Mother was not improperly denied the opportunity for additional

       parenting time.


                                      VI. Litigation Expenses
[28]   Finally, we address Mother’s remaining argument that the trial court erred by

       ordering an equal division of GAL expenses, which essentially denied Mother’s

       Motion for Re-Allocation of Litigation Expenses. We disagree.


[29]   The decision to appoint a guardian ad litem for a child is within the trial court’s

       sound discretion. Ind. Code § 31-17-6-1. As such, the trial court




               When it becomes necessary that a child be cared for by a person other than a parent or a
               responsible household family member, the parent needing the child care shall first offer
               the other parent the opportunity for additional parenting time, if providing the child care
               by the other parent is practical considering the time available and distance between
               residences.


       Ind. Parenting Time Guideline I(C)(3). The commentary explains that this rule “promotes the concept that a
       child receives greater benefit from being with a parent rather than a child care provider who is not a
       household family member[,]” which is defined as “an adult person residing in the household, who is related
       to the child by blood, marriage or adoption.”

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019                     Page 22 of 24
               periodically may order a party to pay a reasonable amount for
               the cost to the other party of maintaining or defending any
               proceeding under IC 31-17-2 . . . and for attorney’s fees and
               mediation services, including amounts for legal services provided
               and costs incurred before the commencement of the proceedings
               or after entry of judgment.


       Ind. Code § 31-17-7-1(a). In this case, the trial court exercised its discretion in

       appointing a GAL to represent the interests of the Children. As a result, the

       parties incurred $4,990 in reasonable GAL fees and the trial court ordered each

       party to pay half. Mother requested that the fees be allocated based on the

       parties’ respective income percentages. Evidence demonstrating a disparity in

       income was presented to the trial court during the hearing; yet, aware of this,

       the trial court evenly split the GAL fees. Because both parties benefitted from

       and utilized the GAL’s services, we cannot conclude the trial court abused its

       discretion in ordering the parties to each pay half of the fees.



                                              Conclusion
[30]   Based on the reasons set forth above, the trial court did not err in denying

       modification of legal custody, adopting Father’s proposed order nearly

       verbatim, or in its parenting time decision and allocation of litigation expenses.

       However, the trial court erred in modifying primary physical custody of M.R.

       without finding that a substantial change in one or more statutory factors

       occurred and in its child support calculation. Accordingly, we affirm in part,

       reverse in part, and remand to the trial court for further proceedings consistent

       with this opinion.
       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 23 of 24
[31]   Affirmed in part, reversed in part, and remanded.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2232 | May 30, 2019   Page 24 of 24
