MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any
                                                                        Nov 15 2017, 9:02 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT
Jennifer Irons Jostes
Cedar Lake, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Paternity of Kyler S.                          November 15, 2017
Potoski, Riley N. Potoski, and                           Court of Appeals Case No.
Ellie R. Potoski                                         37A03-1704-JP-947
Brent S. Potoski,                                        Appeal from the Jasper Circuit
                                                         Court
Appellant-Respondent,
                                                         The Honorable John D. Potter,
        v.                                               Judge
                                                         Trial Court Cause No.
Nicole Stotts,                                           37C01-1609-JP-244

Appellee-Petitioner.



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017          Page 1 of 24
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, Brent S. Potoski (Father), appeals the trial court’s Order

      establishing paternity, custody, and support for his three minor children with

      Appellee-Petitioner, Nicole R. Stotts (Mother).


[2]   We affirm in part, reverse in part, and remand.


                                                   ISSUES
[3]   Father raises four issues on appeal, which we consolidate and restate as the

      following three issues:

      (1) Whether the trial court abused its discretion by awarding primary physical

      and sole legal custody to Mother while allowing Father to exercise minimum

      parenting time;

      (2) Whether the trial court erred in its calculation of child support; and

      (3) Whether the trial court erred in determining that Mother is entitled to claim

      the parties’ children as dependents for tax purposes.


                      FACTS AND PROCEDURAL HISTORY
[4]   Father and Mother share three children: Kyler S. Potoski, born December 5,

      2002; Riley N. Potoski, born March 10, 2006; and Ellie R. Potoski, born

      October 10, 2008 (collectively, the Children). Although Father and Mother

      never married, they were together for more than fourteen years and lived as a

      family in Wheatfield, Jasper County, Indiana. For most of the relationship,

      Father and Mother both worked outside of the home, and they shared the

      responsibilities of child-rearing.
      Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 2 of 24
[5]   In August of 2016, Father and Mother ended their relationship. Mother and

      the Children moved out of the home, and although Father desired more time

      with the Children, he and Mother informally operated pursuant to the Indiana

      Parenting Time Guidelines. Thus, while Mother had primary care of the

      Children, Father spent time with them on Wednesdays and every other

      weekend. During this time, Father did not make any payments to Mother in

      support of the Children. He did, however, pay for some of the Children’s

      expenses—such as new clothing, shoes, phones, and haircuts.


[6]   On September 15, 2016, the Jasper County Prosecuting Attorney’s Office, at

      Mother’s request, filed a petition to establish child support. On October 31,

      2017, Father filed a petition to establish custody and parenting time, specifically

      requesting joint physical and legal custody. On November 9, 2017, Mother

      filed a petition requesting primary custody of the Children, with Father to

      receive parenting time.


[7]   On February 23, 2017, the trial court conducted a hearing on the issues raised

      in the parties’ petitions. On March 27, 2017, the trial court issued its Order,

      establishing Father’s paternity to the Children. The trial court “awarded sole

      legal and physical custody” of the Children to Mother, “subject to . . . Father’s

      right of parenting time as agreed by the parties with a minimum pursuant to the

      Indiana Supreme Court Parenting Time Guidelines, including overnights on

      Wednesdays.” (Appellant’s App. Vol. II, p. 11). The trial court ordered Father

      to pay $31.00 per week in child support, increased by an additional $19.00 per

      week to satisfy an arrearage for his lack of support following the parties’

      Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 3 of 24
       separation. The trial court further directed that Mother would be entitled to

       claim the Children each year as dependents for tax purposes.


[8]    Father now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[9]    At the outset, we note that Mother has not filed an appellate brief. “When an

       appellee fails to submit an appellate brief, ‘we need not undertake the burden of

       developing an argument on the [a]ppellee’s behalf.’” C.H. v. A.R., 72 N.E.3d

       996, 1001 (Ind. Ct. App. 2017) (quoting Front Row Motors, LLC v. Jones, 5

       N.E.3d 753, 758 (Ind. 2014)). Instead, “we will reverse the trial court’s

       judgment if the appellant’s brief presents a case of prima facie error.” Id.

       (quoting Front Row Motors, LLC, 5 N.E.3d at 758). In this context, prima facie

       error “is defined as[] at first sight, on first appearance, or on the face of it.” Id.

       (quoting Front Row Motors, LLC, 5 N.E.3d at 758).


[10]   “Upon finding that a man is [a] child’s biological father, the court shall, in the

       initial determination, conduct a hearing to determine the issues of support,

       custody, and parenting time.” Ind. Code § 31-14-10-1. On appeal, our court

       does not reweigh evidence or assess the credibility of witnesses, and we view

       the evidence in a light most favorable to the trial court’s judgment. Best v. Best,

       941 N.E.2d 499, 502 (Ind. 2011). In family law matters, our court affords

       considerable deference to the trial court’s determinations. Id. This is because of

       the trial court’s

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 4 of 24
               unique, direct interactions with the parties face-to-face, often over
               an extended period of time. Thus enabled to assess credibility
               and character through both factual testimony and intuitive
               discernment, our trial judges are in a superior position to
               ascertain information and apply common sense, particularly in
               the determination of the best interests of the involved children.


       Id.


[11]   Furthermore, when reviewing judgments with specific findings of fact and

       conclusions thereon, our court will “not set aside the findings or judgment

       unless clearly erroneous.” Ind. Trial Rule 52(A). We must determine “whether

       the evidence supports the findings and whether the findings support the

       judgment.” Pitcavage v. Pitcavage, 11 N.E.3d 547, 552 (Ind. Ct. App. 2014). The

       trial court’s findings and conclusions will be found clearly erroneous “if they

       are unsupported by the facts and inferences contained in the record.” Id. at 553.

       “We will find the judgment to be clearly erroneous if, after reviewing the

       record, we are left with a firm conviction that there has been a mistake.” Id.


                                                   II. Custody

[12]   Father claims that the trial court erred by awarding primary physical and sole

       legal custody to Mother. Our court does not disturb a child custody

       determination absent an abuse of discretion. Russell v. Russell, 682 N.E.2d 513,

       515 (Ind. 1997). Thus, we will only reverse the trial court’s decision “if it is

       clearly against the logic and effect of the facts and circumstances or the

       reasonable inferences drawn therefrom.” In re Paternity of M.W., 949 N.E.2d

       839, 842 (Ind. Ct. App. 2011).

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 5 of 24
[13]   In support of its decision to award primary physical and sole legal custody to

       Mother, notwithstanding Father’s request for both a joint physical and legal

       custody arrangement, the trial court found:


               As to visitation, Father requests joint physical custody with
               equally shared overnights and parenting time; however, this has
               not been the practice as Father has been enjoying overnights on
               Wednesday evenings and not having equal overnights since the
               parties split in July of 2016. Father claims that because he is not
               working right now—awaiting his union grievance claim—he
               could have joint physical custody and many additional
               opportunities for parenting time while Mother is working and the
               [C]hildren are not in school. Father, once again, wants the
               [c]ourt to base its order on terms extremely favorable to him
               based on a current snapshot of his life at the time of this
               hearing—not working, no income, plenty of time to spend with
               kids. This ignores Father’s own testimony that he is going to
               save his house in bankruptcy which will require a job with steady
               income to reaffirm a mortgage in bankruptcy proceedings.
               Additionally, the [C]hildren are all school-aged and a fixed home
               and a fixed schedule would be in their best interests. Father’s
               proposal to have them switch residences multiple times during
               the week is not in the best interests of the [C]hildren.

               Mother has been the primary provider for the [C]hildren since the
               parties separated with no financial help. Father has contributed
               nothing since the separation in support. She has maintained the
               [C]hildren’s schedule, daycare, and daily routine—that schedule
               needs to be maintained. Father should have visitation according
               to the parenting time guidelines with an additional overnight on
               Wednesday nights for a total of 148 overnights of parenting time
               credit.

               As to custody, Ind. Code § 31-14-13-4 [sic] holds that a [m]other
               has sole legal and physical custody of a child born out of wedlock

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 6 of 24
               unless the [c]ourt finds under Ind. Code § 31-14-13-23 [sic] that
               joint legal custody would be practical and in the best interests of
               the child. Insufficient evidence has been presented to this [c]ourt
               to determine that Father should overcome the statutory
               presumption in Ind. Code § 31-14-13-4 [sic]. Mother shall have
               full legal and physical custody of the parties’ three [C]hildren.


       (Appellant’s App. Vol. II, pp. 9-10).


[14]   Father now contends that the trial court relied on an inappropriate standard for

       making a custody determination as it failed to consider the best interests of the

       Children as required by statute. Similarly, Father argues that the trial court

       failed to consider the statutory factors for determining whether an award of

       joint legal custody is proper. Furthermore, Father insists that the trial court

       relied on a non-existent presumption that Mother has “sole legal and physical

       custody of a child born out of wedlock.” (Appellant’s App. Vol. II, p. 10). We

       largely agree with Father.


[15]   When making a custody decision pursuant to a paternity proceeding,


               [t]he court shall determine custody in accordance with the best
               interests of the child. In determining the child’s best interests,
               there is not a presumption favoring either parent. The court shall
               consider all relevant factors, including the following:


               (1) The age and sex of the child.


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




       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 7 of 24
               (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 parents;


                     (B) the child’s siblings; and


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


               (5) The child’s adjustment to home, school, and 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 . . . .


       I.C. § 31-14-13-2.


[16]   In this case, rather than considering the required relevant factors, the trial court

       appears to have crafted its own standard. The trial court based its decision

       partly on the fact that, following the parties’ separation, Father—at Mother’s

       insistence—only exercised parenting time with the Children in accordance with

       the Parenting Time Guidelines. The trial court also criticized Father’s financial

       struggles: Father testified that he lost his job in May of 2016 due to a medical

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 8 of 24
       issue, and he is currently searching for employment while also hoping that he

       receives a favorable ruling in his union grievance and is able to return to his

       former job. At the hearing, Father testified that he was preparing to file

       bankruptcy but that he intended to reaffirm the mortgage on his house. The

       trial court found that, following the parties’ separation, Mother had maintained

       the Children’s routines and supported them without any assistance from Father,

       even though both parties testified that Father cared for the Children whenever

       permitted to do so by Mother and that he had provided the Children with

       certain items such as clothing and shoes.


[17]   It is well established that the trial court must consider all relevant factors in

       deciding the best interests, which specifically includes those identified in

       Indiana Code section 31-14-13-2. See Baxendale v. Raich, 878 N.E.2d 1252, 1254

       (Ind. 2008). Furthermore, when “a trial court is making an initial custody

       determination, it is required to consider all evidence from the time of [the]

       child’s birth in determining the custody arrangement that would be in the best

       interest of [the] child.” In re Paternity of M.W., 949 N.E.2d at 843. Here, the

       trial court clearly failed to take into account the relationship that both parents

       have had with the Children throughout their lives. Both Father and Mother

       testified that they shared the responsibilities in raising their Children, and both

       shared a bond with the Children. Moreover, Father and Mother live only five

       minutes apart, so the Children’s school and bus schedules are not disrupted

       regardless of which parent is exercising parenting time. The trial court found

       that Mother has maintained the Children’s schedules since the separation, and


       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 9 of 24
       while stability is certainly relevant in deciding the Children’s best interests, it is

       only one factor for the trial court to consider. The trial court should have

       analyzed all listed factors—plus any other relevant considerations—from the

       time of the Children’s birth in making an award of physical custody. By simply

       relying on the parenting time and support provided by the parties from the time

       of their separation in July of 2016 until the hearing in February of 2017 as the

       basis for its support order, we find that the trial court abused its discretion.


[18]   In addition to awarding primary physical custody to Mother, the trial court

       gave her sole legal custody. “Physical custody and legal custody are not

       equivalent.” Finnerty v. Clutter, 917 N.E.2d 154, 156 (Ind. Ct. App. 2009), trans.

       denied. The parent with legal custody “may determine the child’s upbringing,

       which includes education, health care, and religious training, unless the court

       determines that the best interests of the child require a limitation on this

       authority.” I.C. § 31-14-13-4. In some cases, joint custody may be appropriate:


               (a) In a proceeding to which this chapter applies, the court may
                   award legal custody of a child jointly if the court finds that an
                   award of joint legal custody would be in the best interest of
                   the child.


               (b) An award of joint legal custody under this section does not
                   require an equal division of physical custody of the child.


               (c) In determining whether an award of joint legal custody under
                   this section would be in the best interest of the child, the court
                   shall consider it a matter of primary, but not determinative,
                   importance that the persons awarded joint legal custody have


       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 10 of 24
            agreed to an award of joint legal custody. The court shall also
            consider:


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


             (2) whether the persons awarded joint legal 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 legal
                 custody;


             (5) whether the persons awarded joint legal custody:


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


                   (B) plan to continue to do so;


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


             (7) whether there is a pattern of domestic or family violence.


I.C. § 31-14-13-2.3.



Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 11 of 24
[19]   It does not appear that the trial court considered any of these factors in denying

       Father’s request for joint legal custody and awarding sole legal custody to

       Mother. Rather, the trial court misstated the law by applying a custodial

       presumption in Mother’s favor. Pursuant to Indiana Code section 31-14-13-1,

       when a child is born out of wedlock, the biological mother has sole legal

       custody until a trial court orders otherwise. Once a petition to establish custody

       has been filed, it is incumbent upon the court to consider the statutory best

       interests factors in deciding a physical and legal custodial arrangement. There

       is no presumption favoring either parent; rather, in “an initial custody

       determination, the trial court presumes that both parents are equally entitled to

       custody.” Spoor v. Spoor, 641 N.E.2d 1282, 1284 (Ind. Ct. App. 1994). The trial

       court’s finding that Father failed to overcome a presumption for an award of

       legal custody is clearly erroneous as a matter of law.


[20]   Accordingly, we reverse and remand with instructions for the trial court to enter

       a physical and legal custody order that reflects a consideration of all of the

       factors concerning the Children’s best interests, along with consideration of the

       factors for deciding whether an award of joint legal custody is proper. Because

       we reverse the trial court’s custody decision, we necessarily reverse its directive

       that, absent agreement between the parties, Father receive only the minimum

       parenting time accorded by the Parenting Time Guidelines.


                                               III. Child Support

[21]   Father also claims that the trial court erred in ordering him to pay $31.00 per

       week in child support. Decisions concerning child support generally fall within

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 12 of 24
       the trial court’s sound discretion. Quinn v. Threlkel, 858 N.E.2d 665, 670 (Ind.

       Ct. App. 2006). Child support orders that comport with the Indiana Child

       Support Guidelines “bear a rebuttable presumption of correctness.” Id. Where

       a trial court finds the Guidelines to be “unjust or inappropriate in a particular

       case, the court may enter a support award that is deemed appropriate[,]” but

       any deviation “must be supported by proper written findings justifying the

       deviation.” Id. On review, we will reverse a child support order only if it “is

       clearly against the logic and effect of the facts and circumstances before the

       court,” taking into consideration only the evidence and inferences most

       favorable to the trial court’s decision. Id. “We also bear in mind that although

       a trial court has broad discretion to tailor a child support award in light of the

       circumstances before it, ‘this discretion must be exercised within the

       methodological framework established by the guidelines.’” Id. (quoting

       McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1251-52 (Ind. 1994)).


[22]   Father insists that the trial court relied on improper figures for health insurance

       premiums and childcare expenses that are paid by Mother in calculating the

       necessary child support. Related to these issues, the trial court found as

       follows:


               As a preliminary matter before addressing child support, the
               [c]ourt will address the issue of Mother’s employer-paid daycare.
               Mother’s employer, Kos Mo, Inc., which owns and operates
               McDonald’s restaurants, pays her daycare . . . .


               . . . Kos Mo, Inc., has listed the day care payments as taxable
               income to Mother including them on her 2016 W-2 form totaling
       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 13 of 24
               $49,964.50 in taxable income [of which, $5,693.08 is attributable
               to daycare fees]. That is the identical figure on Mother’s final
               paystub for 2016 for her total income year-to-date including the
               category of ‘other income’. Therefore, the [c]ourt will include
               that amount in her wages and include the daycare cost on the
               child support worksheet. . . .


       (Appellant’s App. Vol. II, pp. 7-8). Accordingly, the trial court determined that

       “Mother’s weekly gross income is $961.00. She incurs daycare costs of $172.08

       bi-weekly which results in weekly daycare of $86.04. Additionally, Mother

       incurs health insurance costs for her [C]hildren in the amount of $83.22 per

       week.” (Appellant’s App. Vol. II, p. 8).

                                        A. Health Insurance Premiums

[23]   First considering the health insurance premiums, Father argues that the

       evidence presented during the hearing establishes that Mother’s “employer pays

       the majority of her health insurance premium and that for the year 2016 the

       entire amount she paid out of pocket for insurance for herself and the [C]hildren

       was $1,322.92.” (Appellant’s Br. p. 17). The Child Support Guidelines provide

       that “[t]he weekly cost of health insurance premiums for the child(ren) should

       be added to the basic obligation whenever either parent actually incurs the

       premium expense or a portion of such expense.” Ind. Child Support Guideline

       3(E)(2). The commentary to the Guidelines further advise that “[o]nly that

       portion of the cost actually paid by a parent is added to the basic obligation. If

       coverage is provided without cost to the parent(s), then zero should be entered

       as the amount. If health insurance coverage is provided through an employer,

       only the child(ren)’s portion should be added.” Child Supp. G. 3(E)(2) cmt.
       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 14 of 24
[24]   The trial court does not specify from where it derives the amount of $83.22 per

       week as Mother’s health insurance costs for the Children, except that it is the

       figure (minus one cent) proposed by Mother on her child support obligation

       worksheet. The evidence establishes that for Mother to insure just herself

       would cost $360.75 per month, and the cost to insure herself plus the Children

       is $721.40. The difference between these figures indicates that the Children’s

       portion of Mother’s monthly health insurance premium is $360.65. This

       amounts to approximately $83.00 per week.


[25]   However, Mother submitted documentation indicating that for 2016, a total of

       $1,322.92 was deducted from her wages for medical insurance. During the

       hearing, Mother testified that her employer covers the majority of her health

       insurance premiums as “a perk of being a store manager.” (Tr. Vol. II, p. 32).

       Mother further testified as follows:


               Q. Additionally, your insurance that you have, this is a cost that
               you actually pay, it comes out of your paystub, does it not?

               A. A portion of it, yes, a small portion.

               Q. The—in other words McDonald’s pays for the cost associated
               to you?

               A. Yes.

               Q. And then the additional cost, which I believe if you do the
               math, is $360.65 a month—

               A. –Yeah. I mean—


       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 15 of 24
               Q. –for your [C]hildren?

               A. Yeah. [T]hat’s ‘cause when they had switched over to the
               whole Obamacare thing, like our insurance plans changed and I
               wanted to keep the plan that we had because it was better than
               the one that I was going to get. So I paid the “X” amount of
               money extra to keep what I had.


       (Tr. Vol. II, pp. 39-40).


[26]   Thus, it appears that Mother paid an “‘X’ amount” of $1,322.92 in order to

       keep her Children on the same health insurance plan after changes were

       implemented in the law, and her employer paid the rest of the premium

       attributable to the Children. (Tr. Vol. II, p. 40). The Child Support Guidelines

       clearly state that only the cost of health insurance actually paid by a parent may

       be included in the child support calculation; thus, the trial court’s inclusion of

       amounts paid by Mother’s employer was erroneous. We remand with

       instructions for the trial court to re-calculate the child support order based on

       the fact that Mother’s weekly health insurance cost for the Children is $25.44

       (i.e., $1,322.92 divided by fifty-two weeks).


                                              B. Daycare Expenses

[27]   Turning to the trial court’s inclusion of Mother’s daycare costs in its child

       support calculation, Father contends that the trial court erred in its finding that

       Mother incurs daycare costs of $86.04 per week. According to Father, this cost

       represents the expense of having two children in daycare, but the evidence

       establishes that only one of the Children would remain enrolled in daycare.


       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 16 of 24
[28]   The Child Support Guidelines provide for the inclusion of “reasonable” child

       care costs “incurred due to employment or job search” in the support obligation

       calculation. Child Supp. G. 3(E)(1). During the hearing, Mother testified that

       her employer, as part of Mother’s salary, directly pays childcare expenses for

       two of the parties’ Children. Mother further testified:


               Q. And are both children going to the daycare regularly?

               A. Ellie goes regularly, Riley goes in the mornings.

               Q. He doesn’t go in the afternoons at all?

               A. No. He was and then decided that he was going to come
               home.

               Q. And how old is Ellie, again?

               A. Eight.

               Q. Okay. And she’s been going to the daycare for quite a while,
               right?

               A. Since she has been born yes, six weeks.

               Q. So is your employer aware that both kids are not going to the
               daycare?

               A. Yeah. They know that they—that Riley goes sometimes in
               the mornings, because I have to drop them off before work.

               Q. Then why are they continuing to pay for two kids to go?

               A. Because in the summertime there has to be somewhere for
               them to go in the summer and Riley is just now old enough, I

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 17 of 24
               think, to be able to stay home. Like we had just established this,
               this past summer.

               Q. Okay so Riley stayed home this last summer?

               A. Well, [Father] was home.

               Q. So Riley stayed home with [Father]?

               A. Yes.

               Q. This last summer? So from at least this last summer there
               was only one child going to the daycare?

               A. Yeah. Ellie went, yes.

               Q. So even if there are some daycare costs it shouldn’t be
               $172.00 [biweekly], correct? Because that’s for two children
               according to this.

               A. Well you still have to pay to hold their spot.

               Q. But you just testified that Riley didn’t go last summer and so
               he doesn’t need to—doesn’t need to be a spot for him, correct?

               A. Well, I guess not, not anymore cause he’s old enough.


       (Tr. Vol. II, pp. 34-35).


[29]   Mother’s testimony on this issue is certainly not clear. However, it does appear

       that while Riley—the parties’ middle child—no longer requires full-time

       daycare during the summer, he still goes in the mornings and gets on the school

       bus from the daycare. Based on this evidence, we cannot say that the trial court



       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 18 of 24
       erred by calculating the costs for two of the Children to attend daycare in its

       child support order.


                                              V. Tax Exemptions

[30]   Lastly, Father claims that the trial court erred by ordering that Mother, every

       year, is entitled to claim all three Children as dependents on her tax return. In

       support of its decision, the trial court found:


               Because Mother provides health insurance, she shall claim [the
               tax exemption for] all of the [C]hildren in future years because
               under the Affordable Care Act, parents must provide health
               insurance for their kids. Whichever parent claims the child (or
               children) as a dependent when tax time rolls around is also
               responsible for providing the minimum essential coverage
               required by law and therefore, get the deduction.


       (Appellant’s App. Vol. II, pp. 10-11). According to Father, the trial court’s

       finding misstates the law and fails to take into consideration certain factors set

       forth in the Indiana Child Support Guidelines.


[31]   The Child Support Guidelines do


               not take into consideration the awarding of the income tax
               exemption. Instead, it is required each case be reviewed on an
               individual basis and that a decision be made in the context of
               each case. Judges and practitioners should be aware that under
               current law the court cannot award an exemption to a parent, but
               the court may order a parent to release or sign over the
               exemption for one or more of the children to the other parent
               pursuant to [the Internal Revenue Code].



       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 19 of 24
       Child Supp. G. 9. “A court is required to specify in a child support order which

       parent may claim the child(ren) as dependents for tax purposes.” Child Supp.

       G. 9. In determining when to order a parent to release an exemption to the

       other parent, the trial court “is required” to consider the following factors:


               (1) the value of the exemption at the marginal tax rate of each
                   parent;


               (2) the income of each parent;


               (3) the age of the child(ren) and how long the exemption will be
                   available;


               (4) the percentage of the cost of supporting the child(ren) borne
                   by each parent;


               (5) the financial aid benefit for post-secondary education for the
                   child(ren);


               (6) the financial burden assumed by each parent under the
                   property settlement in the case; and


               (7) any other relevant factors[] (including health insurance tax
                   subsidies or tax penalties under the Affordable Care Act).


       Child Supp. G. 9.


[32]   Contrary to the trial court’s determination, there is no rule that automatically

       affords the parent responsible for paying health insurance premiums with the

       benefit of claiming the child(ren) as dependents. As the parent who maintains


       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 20 of 24
       health insurance on the Children, Mother “receive[s] a health insurance credit

       in an amount equal to the premium cost the parent actually pays for [the

       Children’s] health insurance” against her own child support obligation.

       Ashworth v. Ehrgott, 934 N.E.2d 152, 162 (Ind. Ct. App. 2010). Moreover, as

       Father points out, the Child Support Guidelines contemplate that the parent

       who pays health insurance premiums for the child(ren) may not be the parent

       who gets to claim the child(ren) for tax purposes. Specifically, in the

       commentary to Guideline 7, which concerns health insurance, it states that


                [p]roblems may arise if the parent who was ordered to provide
                health insurance fails to do so. The other parent may face a tax
                penalty under the Affordable Care Act if he or she claims the
                dependent tax exemption for the uninsured child.[ 1] The court
                should consider imposing sanctions against a parent who fails to
                provide health insurance as ordered or who fails to notify the
                other parent of changes in insurance status.


[33]   During the hearing, neither party specifically requested the tax exemptions;

       thus, neither party demonstrated the consequences or benefits of being

       permitted to claim the Children. See Lamon v. Lamon, 611 N.E.2d 154, 159

       (Ind. Ct. App. 1993). While it is generally presumed that the custodial parent

       will claim the children as dependents unless the court orders said parent to sign

       a waiver, here, the trial court was charged with making an initial custody




       1
         The Child Support Guidelines note that “[o]nly the parent who claims a child as a dependent on a federal
       tax return is eligible for the subsidies [under the Affordable Care Act] and liable for the tax penalties.” Child
       Supp. G. 9 cmt.

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017             Page 21 of 24
       decision. Id. at 158 (citing 26 U.S.C. § 152(e)). Based on the evidence

       available, the trial court should have considered the factors set forth in Child

       Support Guideline 9 to determine which parent should receive the exemptions.

       We instruct the trial court to do so on remand.


                                             CONCLUSION
[34]   Based on the foregoing, we conclude that the trial court abused its discretion by

       awarding primary physical and sole legal custody to Mother without a proper

       consideration of statutory factors. We further conclude that the trial court erred

       by including employer-paid health insurance premiums in its calculation of

       child support; however, evidence supports the trial court’s finding that Mother

       incurs costs for two of the Children to be enrolled in daycare. Finally, we

       conclude that the trial court erred by failing to consider the factors set forth in

       the Child Support Guidelines for ascertaining which parent gets to claim the

       Children as dependents for tax purposes.


[35]   Affirmed in part, reversed in part, and remanded.


[36]   Pyle, J. concurs


[37]   Robb, J. concurs with concurring separate opinion




       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 22 of 24
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       In Re the Paternity of Kyler S.                          Court of Appeals Case No.
       Potoski, Riley N. Potoski, and                           37A03-1704-JP-947
       Ellie R. Potoski
       Brent S. Potoski,
       Appellant-Respondent,

               v.

       Nicole Stotts,
       Appellee-Petitioner.



       Robb, Judge, concurring.


[38]   I concur, but write separately to emphasize the unique situation posed by a

       paternity case.


[39]   When a child is born during a marriage, the parents are naturally the joint

       custodians of the child. For that reason, if the parents subsequently divorce,

       there is no presumption in favor of either parent when the dissolution court

       makes an initial custody determination. See Ind. Code § 31-17-2-8. However,

       when a child is born out of wedlock, the mother is sole legal custodian of the

       child by operation of law. Ind. Code § 31-14-13-1. There are many reasons for

       this, both practical and policy-based. Despite Father’s assertion otherwise, and

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017   Page 23 of 24
       despite the parties’ long-standing relationship, the trial court was correct that

       Mother did have sole legal and physical custody of the children until these

       paternity proceedings were initiated. 2 Regardless of the parties’ situation and

       practice in the years leading up to these proceedings, when paternity

       proceedings are initiated, a court must determine issues of support, custody,

       and parenting time in accordance with the law. Ind. Code § 31-14-10-1.

       Although by statute, custody of a child resides with the mother from birth, our

       legislature has also made it clear by statute that there is no presumption in favor

       of either parent during these initial proceedings in which a court for the first

       time makes a custody determination based upon the statutory factors. Ind.

       Code § 31-14-13-2.


[40]   With that caveat, I agree with the majority that the trial court did not grant

       Father the equal footing to which he was entitled by statute and did not

       consider all of the statutory factors the legislature has directed be considered

       when a court awards custody for the first time. I therefore concur in the

       majority opinion.


[41]




       2
         Mother filed a petition to establish child support in 2016 after the parties’ relationship ended. Father then
       filed a petition seeking orders on custody and parenting time. As part of these proceedings, the parties
       stipulated to paternity and the trial court found as part of its March 27, 2017 order that Father was the father
       of each of the children. See Appellant’s Appendix at 7.

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017            Page 24 of 24
