FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                      ATTORNEY FOR APPELLEE:

MICHAEL G. RUPPERT                            RICHARD RANUCCI
JAIMIE L. CAIRNS                              Indianapolis, Indiana

                                                                       FILED
Ruppert & Schaefer, P.C.
Indianapolis, Indiana
                                                                  Mar 27 2012, 9:23 am


                             IN THE                                       CLERK
                                                                        of the supreme court,

                   COURT OF APPEALS OF INDIANA                          court of appeals and
                                                                               tax court




LORRAINE (CARPENTER) MILLER,                  )
                                              )
      Appellant-Petitioner,                   )
                                              )
             vs.                              )      No. 29A02-1107-DR-663
                                              )
KARL CARPENTER,                               )
                                              )
      Appellee-Respondent.                    )


                   APPEAL FROM THE HAMILTON SUPERIOR COURT
                          The Honorable Daniel J. Pfleging, Judge
                      The Honorable William P. Greenaway, Magistrate
                             Cause No. 29D02-0706-DR-687



                                    March 27, 2012


                              OPINION - FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Lorraine (Carpenter) Miller (“Mother”) and Karl Carpenter (“Father”) were previously

married and have two children in common. The divorce decree, which incorporated the

parties’ settlement agreement, gave Mother sole legal custody and primary physical custody

of the children. Father had parenting time for about 127 overnights per year, but took a

parenting time credit of only ninety-eight overnights. About two years later, Father

petitioned for joint legal custody, an increase in parenting time, and a decrease in child

support. After a hearing, the trial court granted Father the requested relief. The decrease in

child support was based on Mother’s increase in income, Mother’s decrease in child care

costs, and an increase in the parenting time credit.

       On appeal, Mother argues that the trial court erred by: (1) granting Father joint legal

custody when the evidence did not support all the pertinent factors that must be considered;

(2) modifying Father’s parenting time to such an extent that it was a de facto modification of

physical custody; and (3) decreasing Father’s child support obligation when it should have

imputed additional income to him and retained the agreed-upon parenting time credit of

ninety-eight overnights. We agree with Mother that Father failed to show a substantial

change in circumstances supporting a modification of legal custody and therefore reverse the

trial court on that issue. However, we conclude that the trial court did not make a de facto

modification of physical custody. To modify parenting time, only a showing of the children’s

best interests was required, and the evidence supports the trial court’s conclusion that the

modification was in the children’s best interest. We also conclude that the trial court did not


                                              2
abuse its discretion by concluding that evidence of imputed income was too speculative, that

Father should receive a larger parenting time credit due to the increased number of

overnights that he has with the children, and that his previous support obligation exceeds the

Indiana Child Support Guidelines amount by more than 20%. Therefore, we affirm the trial

court’s order as to the parenting time and child support issues.

                              Facts and Procedural History

       Mother and Father have a ten-year-old daughter, K.C., and an eight-year-old son, X.C.

Mother petitioned for dissolution in 2007. On November 26, 2008, the parties filed a

settlement agreement, and on December 4, 2008, the trial court dissolved the marriage and

incorporated the settlement agreement into its order. Pursuant to the settlement agreement,

Mother had sole legal custody of the children and primary physical custody of the children.

Father had the children on alternate weekends and overnight on Wednesdays. On Father’s

weekends, Father picked the children up from school on Friday, and Mother picked the

children up on Sunday evenings. The parties agreed to follow the Indiana Parenting Time

Guidelines for holidays and special occasions. Although she was not required to do so,

Mother allowed Father to have the children on their spring break because it did not align with

the spring break at the school where Mother works as a teacher. In calculating child support,

the parties agreed that Father would receive credit for ninety-eight overnights, which was less

than his actual number of overnights.

       At the time of the dissolution, Father lived with his parents in Fishers and worked in

Columbus, Indiana. Mother lived on the north side of Indianapolis and worked as a teacher.


                                              3
On June 30, 2010, Mother filed notice that she was moving to the south side of Indianapolis

due to her recent remarriage. In response, Father filed a “Motion for Modification of Legal

Custody, Parenting Time and Child Support Orders.” Appellant’s App. at 36. The motion

requested joint legal custody, Sunday overnights on Father’s weekends, and a recalculation of

child support.

         Evidentiary hearings were held on April 14 and June 3, 2011. Father stated that he

was not opposing Mother’s relocation because it had only a negligible impact on his travel

time. He testified that the settlement agreement entitled him to about 128 overnights;

however, because Mother had given him some additional parenting time, he actually had the

children for about 134 overnights per year. On Wednesdays, Father picks the children up

from school, and he takes them directly to school on Thursday mornings because it is roughly

on his way to work. Father uses the travel time to talk to the children about school. Father

testified that he would do the same on Monday mornings if he were allowed to have Sunday

overnights. Currently, Mother picks the children up on Sunday evenings, and on Monday

mornings, the children’s stepfather takes them to child care, and a bus picks them up from

there.

         Father testified that he felt like he was more stable, had better parenting skills, and had

a stronger bond with the children than at the time of the settlement agreement. He felt that as

the children were getting older, they needed more time with him. He felt that Sundays were

“depressing,” because of the anticipation of the children leaving for Mother’s parenting time,

and opined that “it would be better for the kids if they had a complete weekend in which they


                                                  4
can look forward to spending time with Dad from Friday up to Monday morning.” Tr. at 35.

       Father wanted joint legal custody because he felt like he was “out of the loop on some

of the decisions that have been made,” id. at 54, and he thought that “two heads are better

than one.” Id. at 55. Father felt that he did not get sufficient information about K.C.’s

involvement in a special math program or about a surgery that X.C. had; however, Father

conceded that he is already entitled to obtain the children’s school and medical records.

Father acknowledged that communication with Mother had initially been “rough,” but he felt

that it had improved. Id. He disagreed with Mother’s contention that he was nonresponsive

in that he felt that most of Mother’s emails were simply informational and did not require a

response.

       Father testified that he lives with his parents, and he generally does not pay rent or

contribute to the utilities or maintenance. He buys food for himself and the children and

contributes to the purchase of household supplies such as laundry detergent.

       Mother testified that in the past, she had allowed Father to have the children for their

spring and fall breaks because her school’s schedule did not match the children’s. However,

during the 2011-12 school year, her spring break will align with the children’s. Mother felt

that Father was unresponsive to her emails and that they argued over “very simple things,”

like paying for the children’s recreational activities. Id. at 149. Mother testified that she

thought income should be imputed to Father because he does not pay for housing. She also

asserted that Father’s credit for ninety-eight overnights instead of his actual number of

overnights was a result of negotiation. She testified that a large portion of her income


                                              5
currently goes toward paying attorney fees, and her new husband pays their mortgage.

       On June 27, 2011, the trial court issued its order. As to legal custody, the court stated

that it considered the factors set forth in Indiana Code Section 31-17-2-15 (titled “Joint legal

custody; matters considered in making award”), although it did not make specific findings

regarding each factor. The court found that the parties were able to cooperate and

communicate in a non-hostile manner and that the children would benefit from both parents

participating in decision making. Concluding that it was in the best interests of the children,

the court granted Father joint legal custody.

       The court also granted Father overnights on his Sundays. It noted Father’s asserted

reasons for increasing parenting time: Father’s “closer bonds with the children, their

advancing maturity and greater Sunday continuity and cheer without exchange.” Appellant’s

App. at 11. The court found that the children benefit from their time with Father and that it

was in the children’s best interests to extend Father’s weekend parenting time.

       Due to Father’s increased parenting time, the court concluded that he should get credit

for 134 overnights. The court declined to impute income to Father for his lack of housing

costs or to Mother for her lack of summer employment, finding that the evidence presented

on the issue was too speculative. Factoring in Mother’s increased pay and decreased child

care expenses, the court concluded that Father’s weekly support obligation should be reduced

from $258 to $143.35. Mother now appeals.




                                                6
                                  Discussion and Decision

       On appeal, Mother raises two issues, which we restate as the following four: (1)

whether the trial court abused its discretion by modifying legal custody; (2) whether the trial

court made a de facto modification of physical custody; (3) whether the trial court abused its

discretion by modifying Father’s parenting time; and (4) whether the trial court abused its

discretion by decreasing Father’s child support obligation.

       Modifications of child custody, parenting time, and child support are all reviewed for

abuse of discretion. See Werner v. Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011)

(custody), trans. denied; Tamasy v. Kovacs, 929 N.E.2d 820, 837 (Ind. Ct. App. 2010)

(parenting time); Kondamuri v. Kondamuri, 852 N.E.2d 939, 949 (Ind. Ct. App. 2006) (child

support). We grant latitude and deference to our trial judges in family law matters. Werner,

946 N.E.2d at 1244. We consider the only the evidence favorable to the judgment and the

inferences flowing therefrom. Id. We do not reweigh the evidence or assess witness

credibility. Id.

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

Trial Rule 52(A), we do 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

witnesses.” Where, as here, the findings and conclusions are entered sua sponte, “the

specific findings control only as to the issues they cover, while a general judgment standard

applies to any issue upon which the trial court has not found, and we may affirm a general




                                              7
judgment on any theory supported by the evidence adduced at trial.” Sexton v. Sedlak, 946

N.E.2d 1177, 1183 (Ind. Ct. App. 2011), trans. denied.

         At the outset, we note that Mother argues that her relocation did not justify any of the

modifications. See Ind. Code § 31-17-2.2-1 (listing factors to consider when modifying

custody based on a parent’s relocation). Father conceded at the hearing that Mother’s

relocation did not have any significant impact on him or his relationship with the children

and reaffirmed several times that he was not contesting Mother’s relocation. The trial court’s

order does not appear to rely on Mother’s relocation as a basis for modifying custody.

Therefore, we will not address Mother’s arguments concerning Indiana Code Section 31-17-

2.2-1.

                                        I. Legal Custody

         In Julie C. v. Andrew C., 924 N.E.2d 1249, 1259-60 (Ind. Ct. App. 2010), we held that

the trial court must consider three statutes when modifying legal custody: Indiana Code

Sections 31-17-2-8, -15, and -21. Indiana Code Section 31-17-2-21 states in relevant part:

                (a) The court may not modify a child custody order unless:

                (1) the modification is in the best interests of the child; and

                (2) there is a substantial change in one (1) or more of the factors that
                the court may consider under section 8 … of this chapter.

                 (b) In making its determination, the court shall consider the factors
         listed under section 8 of this chapter.

Indiana Code Section 13-17-2-8 contains factors that the trial court must consider when

making an initial custody order, namely:


                                                8
       (1) The age and sex of the child.

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

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

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

              (A) the child’s parent or parents;

              (B) the child’s sibling; and

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

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

              (A) home;

              (B) school; and

              (C) community.

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

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

       (8) Evidence that the child has been cared for by a de facto custodian….

Finally, Indiana Code Section 31-17-2-15 contains factors that are pertinent specifically to

joint legal custody:

       (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;


                                              9
       (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

               (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.

       We agree with Mother that Father failed to show that there was a substantial change in

the pertinent factors such that a change in legal custody was warranted. At the hearing,

Father opined that he was more stable, had more child-rearing experience, and had a stronger

bond with the children than at the time of the settlement agreement. Although Father

testified that he felt “out of the loop,” he acknowledged that he had access to the children’s

medical and school records, and he did not dispute that Mother regularly emails him with

information about the children. Tr. at 54. Father’s testimony on these points was largely

conclusory and self-serving, and it does not support a conclusion that there has been a

substantial change that would justify a modification of legal custody. Therefore, we reverse

the trial court’s order as it pertains to legal custody.

                                     II. Physical Custody

       As noted above, pursuant to Indiana Code Section 31-17-2-21, a modification of

physical custody requires a showing of the child’s best interests and a substantial change in

one of the factors listed in Indiana Code Section 31-17-2-8. However, parenting time may be

modified “whenever modification would serve the best interests of the child.” Ind. Code §


                                               10
31-17-4-2. Thus, unlike a modification of physical custody, a modification of parenting time

does not require a showing of a substantial change.

       Mother argues that the modification of Father’s parenting time was so substantial that

it amounted to a de facto modification of physical custody. In support, she cites Julie C. In

that case, the mother initially had primary physical custody of the children. The trial court

subsequently modified the father’s parenting time so that the parents had equal time with the

children. On appeal, mother argued that this was a de facto modification of physical custody.

We agreed, holding that “when the trial court increased Father’s parenting time to seven

overnight stays during any given two-week period, it ordered a de facto modification of

custody to joint physical custody.” Julie C., 924 N.E.2d at 1256. Nevertheless, we upheld

the modification because the evidence in the record supported a conclusion that there had

been a substantial change in circumstances. Id. at 1258-59.

       Mother acknowledges that this is not a case where the parties have equal time with the

children. Instead, she argues that Julie C. stands for the proposition that any substantial

increase in parenting time is, in essence, a modification of physical custody. Mother asserts

that, pursuant to the modified order, Father is entitled to as many as 168 overnights, i.e., 46%

of overnights. It is not clear how Mother calculated these numbers, but it appears that she

included the extra holiday time that she had previously allowed Father to have. Neither the

original nor the modified order entitles Father to this time, and Mother’s testimony indicates

that she does not intend to allow Father to have this additional time in the future so long as

her spring break aligns with the children’s. Father testified that he was originally entitled to


                                              11
128 days, i.e., about 35% of overnights, and he asserts that the modified order allows him

147 overnights, i.e., about 40% of overnights.1

        Mother has not cited any authority defining “joint physical custody.” As Julie C.

involved an equal division of parenting time, the opinion does not suggest what, if anything,

other than a fifty-fifty split constitutes joint physical custody. We agree with Mother that the

statute governing modification of parenting time should not be used as an end run around the

statutory requirement of showing a substantial change in circumstances for a modification of

physical custody. However, absent any clear authority to support her argument, Mother has

not persuaded us that modification of Father’s parenting time from roughly 35% to 40% of

overnights is so substantial or so close to an even division of parenting time that it should be

viewed as a de facto modification of physical custody.2

                                           III. Parenting Time

        As discussed above, parenting time may be modified “whenever modification would

serve the best interests of the child.” Ind. Code § 31-17-4-2. The evidence favorable to the



        1
            Father explains his calculations as follows:

        The [Original Divorce] Decree had granted Father 128 annual overnight stays, which Father
        calculated by multiplying one hundred and eighty-five school nights by twenty percent (two
        of ten – Wednesdays), and adding this total to his half of non-school overnights [(185 × .2) +
        (180 × .5) = 127]. The Order of June 27, 2011, extended Father’s alternate Sunday parenting
        time (school weeks only since alternate weekends are trumped by vacation and holiday
        parenting provisions) to overnights, adding 18 to 19 overnights per year, for a total of about
        147 annual overnight stays.

Appellee’s Br. at 16 (internal citation omitted).
        2
          Given the frequency with which child custody issues arise, it would be ideal if the relevant statutes
defined key terms and indicated more clearly how they should be harmonized.


                                                       12
judgment is that if Father has the children overnight on his Sundays, he would take them

directly to school on Monday mornings and use the travel time to talk to them about school.

Currently, Mother picks the children up on Sunday evening, the children’s stepfather takes

them to child care on Monday morning, and the children are picked up by the bus at child

care. Therefore, if the children stay overnight with Father, they can spend more time in the

care of a parent and less time traveling because they would not have to go to child care or

ride a bus. This evidence supports the trial court’s conclusion that extending Father’s

parenting time is in the children’s best interests.3

                                            IV. Child Support

        As noted above, child support orders are reviewed for an abuse of discretion.

Kondamuri, 852 N.E.2d at 949. “A trial court’s calculation of a child support obligation

under the child support guidelines is presumptively valid.” Id. As the party petitioning for

modification, Father bore the burden of proof. Weiss v. Frick, 693 N.E.2d 588, 590 (Ind. Ct.

App. 1998), trans. denied. Mother makes three arguments concerning child support: (A) the

trial court erred by not imputing income to Father; (B) the trial court erred by increasing the

number of overnights for which Father gets credit; and (C) there was not a substantial change

warranting modification.

                                           A. Imputed Income


        3
           Mother contends that the trial court failed to explain the deviation from the Parenting Time
Guidelines in writing. See Ind. Parenting Time Guidelines, Preamble, § 2 (“Any deviation from these
Guidelines by either the parties or the court must be accompanied by a written explanation why the deviation is
necessary or appropriate in the case.”). On the contrary, the court specifically found that the children would
have more continuity, that the arrangement would not result in additional travel time for the children, that the
children benefit from time with Father, and that the modification was in the children’s best interests.

                                                      13
       The Child Support Guidelines define “weekly gross income” as income of each parent

“from any source,” subject to a few exclusions not applicable here. Child Support Guideline

3(A)(1). The Child Support Guidelines provide a non-exhaustive list of income sources,

including gifts. Id.

       Whether or not income should be imputed to a parent whose living expenses
       have been substantially reduced due to financial resources other than the
       parent’s own earning capabilities is also a fact-sensitive situation requiring
       careful consideration of the evidence in each case. It may be inappropriate to
       include as gross income occasional gifts received. However, regular and
       continuing payments made by a family member, subsequent spouse, roommate
       or live-in friend that reduce the parent’s costs for rent, utilities, or groceries,
       may be the basis for imputing income. The marriage of a parent to a spouse
       with sufficient affluence to obviate the necessity for the parent to work may
       give rise to a situation where either potential income or imputed income or
       both should be considered in arriving at gross income.

Ind. Child Support Guideline 3(A), cmt. 2(d).

       The evidence showed that Father lives with his parents and does not pay for rent,

maintenance, or utilities. Mother requested that $1335.33 per week be imputed to Father for

these living expenses that he does not pay. However, Mother presented no evidence of the

value of the expenses that Father’s parents pay for him. Mother’s figure of $1335.33 appears

to be completely arbitrary, and she has not persuaded us that the trial court abused its

discretion by finding that the evidence was too speculative to impute income to either party.

                                 B. Parenting Time Credit

       The trial court increased Father’s parenting time credit from ninety-eight overnights to

134. Mother argues that this was an abuse of discretion because Father has no duplicated




                                               14
expenses. The commentary to Child Support Guideline 6 explains the rationale for granting a

parenting time credit to the noncustodial parent:

       An examination of the costs associated with the sharing of parenting time
       reveals two types of expenses are incurred by both parents, transferred and
       duplicated expenses.…

       Transferred Expenses. This type of expense is incurred only when the
       child(ren) reside(s) with a parent and these expenses are “transferred” with the
       child(ren) as they move from one parent’s residence to the other. Examples of
       this type of expense are food and the major portion of spending for
       transportation. When spending is transferred from one parent to the other
       parent, the other parent should be given a credit against that parent’s child
       support obligation since this type of expense is included in the support
       calculation schedules. When parents equally share in the parenting, an
       assumption is made that 35% of the Basic Child Support Obligation reflects
       “transferred” expenses. The amount of expenses transferred from one parent
       to the other will depend upon the number of overnights the child(ren) spend(s)
       with each parent.

       Duplicated Fixed Expenses. This type of expense is incurred when two
       households are maintained for the child(ren). An example of this type of
       expense is shelter costs which are not transferred when the child(ren) move(s)
       from one parent’s residence to the other but remain fixed in each parent’s
       household and represent duplicated expenditures. The fixed expense of the
       parent who has primary physical custody is included in the Guideline support
       schedules. However, the fixed expense of the other parent is not included in
       the support schedules but represents an increase in the total cost of raising the
       child(ren) attributed to the parenting time plan. Both parents should share in
       these additional costs.

Child Support Guideline 6, cmt.

       The parenting time credit represents the total of transferred and duplicated expenses

by the noncustodial parent as a percentage of the weekly basic child support obligation. Id.

The percentage varies with the number of overnights. For 131 to 135 overnights, the

percentage is .544; duplicated expenses account for .417 and transferred expenses account


                                              15
for .127. Child Support Guideline 6, Table PT. Using these percentages, Father’s parenting

time credit is $143.49.4

        Mother concedes that Father has transferred expenses, but argues that he has no

duplicated expenses because he does not pay for housing. Thus, she argues that the parenting

time credit should be calculated using 0% for duplicated expenses and .127 for transferred

expenses, resulting in a credit of $52.45. See Appellant’s Br. at 38 (showing a Parenting

Time Credit Worksheet using these figures). Mother argues that using .544, as the trial court

did, results in a windfall to Father.

        First, we note that the trial court did not give Father a full parenting time credit

because it used 134 overnights when he really gets 147 (or more, according to Mother).

Using 147 overnights would have resulted in a credit of $160.61.5 Second, the evidence

showed that both parents have their housing subsidized by other adults. Neither Father nor

Mother pays a mortgage or rent, yet Mother’s housing expenses are factored into the basic

support obligation. See Child Support Guideline 6, cmt. (duplicated fixed expenses include

housing, and the fixed expenses of the parent with primary physical custody are “included in

the Guideline support schedules”). On the record before us, Mother has not shown that the

already reduced parenting time credit results in a windfall for Father. Thus, she has not

persuaded us that the trial court abused its discretion in calculating the parenting time credit.


        4
           The trial court’s order did not include a Parenting Time Credit Worksheet; however, Mother
recreated a worksheet in her brief. Appellant’s Br. at 37.
        5
           This figure is reached by using Mother’s Parenting Time Credit Worksheet and substituting the
applicable percentages from Table PT for 147 overnights. If Mother’s assertion that Father gets 168 overnights
per year is correct, the Parenting Time Credit Worksheet would result in a credit of $173.69.

                                                     16
                                   C. Substantial Change

       A child support order may be modified:

       (1) upon a showing of changed circumstances so substantial and continuing as
       to make the terms unreasonable; or

       (2) upon a showing that:

              (A) a party has been ordered to pay an amount in child support that
              differs by more than twenty percent (20%) from the amount that would
              be ordered by applying the child support guidelines; and

              (B) the order requested to be modified or revoked was issued at least
              twelve (12) months before the petition requesting modification was
              filed.

Ind. Code § 31-16-8-1(b).

       Pursuant to the settlement agreement, Father paid $258 per week in child support.

Using Mother’s increased income, Mother’s decreased child care costs, and Father’s

increased parenting time credit, the court found that the Child Support Guidelines would

result in a weekly child support obligation of $143.35. Because $258 deviates from the

Guidelines amount by more than 20% and the child support order had been in place for more

than a year, the trial court found that the criteria of Indiana Code Section 31-16-8-1(b)(2) had

been met and reduced Father’s weekly obligation to $143.35.

       Mother does not dispute that her income has increased and her child care costs have

decreased. However, she argues that Father’s obligation cannot be decreased because he

agreed to pay an amount in excess of the Guidelines. Mother relies on Hay v. Hay, 730

N.E.2d 787 (Ind. Ct. App. 2000). In Hay, the father initially agreed to pay the children’s

college tuition. Once the oldest child reached college age, the father petitioned for a

                                              17
modification of child support, asking the trial court to determine child support based on the

Post-Secondary Education Worksheet included in the Guidelines. The father alleged that the

child’s intent to enroll in college was a substantial change in circumstances warranting

modification. The trial court denied the father’s petition, and he appealed.

       We held that the child’s enrollment in college was not a substantial change because

her enrollment in college was contemplated by the parties as evidenced by the father’s

agreement to pay for college. Id. at 793. Thus, child support could not be modified pursuant

to Indiana Code Section 31-16-8-1(b)(1). Id. Alternatively, the father argued that child

support could be modified pursuant to subsection (b)(2) due to a 20% deviation. The Hay

panel found that the father had waived this argument because he had not made that argument

to the trial court. Id. at 794, disagreed with by Holzleiter v. Holzleiter, 944 N.E.23d 502, 506

(Ind. Ct. App. 2011). In dicta, the Hay panel stated that “when a parent has agreed to pay

support in excess of the guidelines and which could not be ordered by a trial court, that

parent must show a substantial change in circumstances independent of the twenty percent

deviation to justify modification.” Hay, 730 N.E.2d at 795, disagreed with by In re Marriage

of Kraft, 868 N.E.2d 1181, 1189 (Ind. Ct. App. 2007).

       Mother argues that because Father agreed to receive credit for ninety-eight overnights

when he would have been entitled to more, he cannot rely on an increase in the number of

overnights to establish a 20% deviation, but must show a substantial change in

circumstances. Even if the dicta in Hay is correct, we do not believe that its rationale is

applicable here. In Hay, the parties’ agreement contemplated that the children would attend


                                              18
college; thus, the panel expressed concern that the father was simply attempting to back out

of his agreement after the mere passage of time. In this case, the parties negotiated both the

parenting time credit and Father’s actual number of overnights; in other words, the credit for

ninety-eight overnights was premised on Father receiving about 127 actual overnights.

Nothing in the parties’ agreement contemplates that Father would continue to receive credit

for ninety-eight overnights regardless of any parenting time modifications that might occur.

This is not a situation where a parent is merely attempting to circumvent an agreement;

Father’s overnights have been increased to about 147 based on the children’s best interests.

It is likewise in the children’s best interests to adjust Father’s child support obligation to

reflect this new reality. See In re Kraft, 868 N.E.2d at 1188-89 (disagreeing with Hay, the

panel noted that the statutory scheme is intended to promote the best interests of children).

The increased credit is not to reward Father, but to provide the children with continuity in

their standard of living. See Ind. Child Support Guideline 1 (the Guidelines attempt to give

children the standard of living they would have enjoyed had the marriage not been

dissolved); Bussert v. Bussert, 677 N.E.2d 68, 71 (Ind. Ct. App. 1997) (child support

payments are for the benefit of the child and should not be used to leverage one parent’s

standard of living at the expense of the other), trans. denied. Therefore, we conclude that the

trial court did not abuse its discretion by modifying Father’s child support obligation

pursuant to Indiana Code Section 31-16-8-1(b)(2) rather than Subsection (b)(1).

                                      CONCLUSION




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       The evidence does not support a conclusion that there was a substantial change in

circumstances justifying a modification of legal custody. Therefore, we reverse the trial

court’s grant of joint legal custody to Father. Contrary to Mother’s argument, the trial court

did not make a de facto modification of physical custody, but only a modification of

parenting time. A modification of parenting time requires only a showing of the children’s

best interest, which Father met in this case. As to child support, the trial court did not abuse

its discretion by finding the evidence of imputed income too speculative or by increasing

Father’s parenting time credit. Because more than a year has passed since the original

support order and Father’s obligation deviated from the Child Support Guidelines by more

than 20%, the trial court did not err by reducing Father’s child support obligation. Therefore,

we affirm the trial court’s order as to parenting time and child support.

       Affirmed in part and reversed in part.

MAY, J., and BROWN, J., concur.




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