FOR PUBLICATION

ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

JERRY E. SMITH                                 LANAE HARDEN
Martinsvills, Indiana                          LAURA M. TAYLOR
                                               Harden Jackson, LLC
                                                                        FILED
                                                                     Aug 09 2012, 9:13 am

                               IN THE
                                                                             CLERK
                     COURT OF APPEALS OF INDIANA                           of the supreme court,
                                                                           court of appeals and
                                                                                  tax court




DANIEL SANDLIN,                                )
                                               )
       Appellant-Respondent,                   )
                                               )
               vs.                             )      No. 29A02-1110-DR-969
                                               )
TAMARA SANDLIN,                                )
                                               )
       Appellee-Petitioner.                    )


                     APPEAL FROM THE HAMILTONSUPERIOR COURT
                          The Honorable Daniel J. Pfleging. Judge
                              Cause No. 29D02-0903-DR-265




                                     August 9, 2012


                              OPINION - FOR PUBLICATION


ROBB, Chief Judge
                                 Case Summary and Issues

       Several months after the dissolution of the marriage of Daniel Sandlin (“Father”) and

Tamara Sandlin (“Mother”), Father filed a verified motion for emergency hearing and

modification of custody, and Mother filed a verified petition to modify child support.

Following a hearing, the trial court entered an order which Father now appeals and Mother

cross appeals.

       Father does not challenge the trial court’s order to modify child support, but raises two

challenges to the trial court’s calculations in doing so. We expand and restate Father’s

challenges as four issues: 1) whether the trial court improperly failed to conclude Mother

voluntarily left her former job and thus failed to impute income to Mother; 2) whether the

trial court miscalculated Mother’s current income; 3) whether the trial court improperly failed

to explicitly order that Father cease paying to Mother an annual clothing allowance for the

children; and 4) whether the trial court incorrectly determined the number of overnights for

which Father should receive parenting time credit toward his child support obligations. On

cross appeal, Mother agrees with Father’s assessment of and challenge to the trial court’s

determination of Father’s parenting time credit and requests we make this correction without

resorting to remand.

       We conclude the trial court correctly did not impute income to Mother, but improperly

failed to calculate Mother’s current income based on the evidence, and improperly failed to

explicitly order that Father cease paying to Mother a clothing allowance. We also conclude

that, based on the parties’ apparent appellate agreement, Father’s parenting time credit should


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be substantially reduced. Therefore, we reverse and remand with instructions for the trial

court to review the evidence presented without the need to hold an additional hearing, and

amend its order modifying child support as directed.

                                Facts and Procedural History

       Father and Mother married in 1997, had three children during the marriage, and

separated in 2009. In mid-2009, the trial court entered an order finalizing the parties’

settlement agreement and dissolving their marriage. The 2009 order resolved division of

property issues, ordered that the parties alternate available tax credits for the children, and

resolved issues concerning the care and custody of the children. Specifically as to the care

and custody of the children, the order granted joint legal custody, sole physical custody to

Mother, and Father’s visitation according to the Indiana Parenting Time Guidelines with

several agreed upon exceptions. Father was ordered to pay $278 per week for child support,

consistent with the child support obligation worksheet attached to the mid-2009 order. The

order also detailed who shall pay what percentage or amount for the children’s medical,

dental, and optical insurance; uninsured medical expenses; uninsured orthodontic expenses;

expenses for weddings; vehicles upon each turning the age of sixteen; summer camps during

school breaks; and extra-curricular activities.

       In August 2010, the trial court entered an order finalizing a mediated agreement

between the parties which modified the allocation of parenting time; modified the parties’

proportional payment for the children’s health and dental insurance, extra-curricular

activities, summer camps, and daycare; and stated that “Father will pay to Mother a clothing


                                              3
allowance of $100 for each child twice a year for a total of $600 a year.” Appellant’s

Appendix at 29.

      In February 2011, following a confrontation between Father’s wife and Mother,

Father filed a verified motion for emergency hearing and modification of custody. Mother

responded with a verified petition to modify child support. Following a hearing on these

motions, the trial court entered an order in September 2011. This order denied modification

of custody, but modified Father’s weekday parenting time, described the parties’ financial

circumstances, and modified child support. Portions of the order relevant to the issues on

appeal follow.

      17. Mother’s income has been reduced which is a substantial changes [sic] in
      circumstance warranting a child support modification. One year has elapsed
      since the child support order, and Father’s current order of child support
      differs by more than 20% from the amount he should be paying under the
      Child Support Guidelines.
      18. Mother was not able to keep her current position, which was taken by her
      assistant at a much reduced salary. Mother had the possibility of remaining
      with the company but only if she relocated to Kansas City and accepted a
      different position which required significant travel.
      19. Due to the corporate reorganization described above and because a non-
      compete limited her employment opportunities, Mother started her own
      company, Aramat Consulting, . [sic]
      20. Mother currently receives business income of $1,067.32 per week and has
      business expenses which are attributable to the production of that income.
      However, for purposes of calculating her income for child support purposes,
      Mother did not reduce her business income by her business expenses even
      though she would be entitled to do so under the Child Support Guidelines.
      21. Father is also self-employed. When calculating his income, Father reduced
      his income by his business expenses.
      22. To calculate child support Father’s income was set at $2,258.00 per week.
      23. The Court finds Mother’s income to be $1,067.32 per week and Father’s
      income to be $2,258.00 per week and hereby orders Father to pay child support
      in the amount of $374.00 taking into consideration Mother’s payment of the


                                            4
       child-care costs for the children and the premiums for health insurance
       coverage for the children.
       24. Uninsured medical, dental, orthodontic, and prescription expenses of the
       children shall be paid by the 6% Rule with Mother annually paying $1,838.00
       of such expenses with the remainder split 67.9% to Father and 32.1% to
       Mother.
       25. The children’s extracurricular expenses shall be paid 67.9% by Father and
       32.1% by Mother.
       26. The parents shall continue to share the tax exemptions for the children as
       previously ordered.
       27. Given the disparity in income between the parties, Father is ordered to pay
       a portion of Mother’s attorney’s fees in the sum of $3,750.00.

Id. at 9-10.

       Father now appeals and Mother cross appeals.

                                  Discussion and Decision

                                   I. Standard of Review

       Child support calculations are made utilizing the income shares model set forth in the

Indiana Child Support Guidelines. See McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct.

App. 2004). The Guidelines apportion the cost of supporting children between the parents

according to their means, on the premise that children should receive the same portion of

parental income after a dissolution that they would have received if the family had remained

intact. See id. The trial court is vested with broad discretion in making child support

determinations. Carter v. Dayhuff, 829 N.E.2d 560, 569 (Ind. Ct. App. 2005). A calculation

of child support under the Guidelines is presumed to be valid. McGill, 801 N.E.2d at 1251.

       We will reverse a trial court’s grant or denial of a request for modification of child

support only where the court has abused its discretion. Carter, 829 N.E.2d at 569-70. An

abuse of discretion occurs when the trial court misinterprets the law or the decision is clearly

                                               5
against the logic and effect of the facts and circumstances before the court. Id. We do not

reweigh the evidence or judge the credibility of the witnesses upon review; rather, we

consider only the evidence most favorable to the judgment and the reasonable inferences to

be drawn therefrom. Id. at 570.

                                      II. Child Support

       Child support orders may be modified “upon a showing of changed circumstances so

substantial and continuing as to make the terms unreasonable,” or 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 § 3l-

16-8-l(b).

                            A. Imputation of Income to Mother

       Trial courts may impute income to a parent for purposes of calculating child support

upon determining that he or she is voluntarily unemployed or underemployed. Matter of

Paternity of Buehler, 576 N.E.2d 1354, 1355-56 (Ind. Ct. App. 1991). The Child Support

Guidelines permit imputation to discourage parents – both the payor-non-custodial parent and

the recipient-custodial parent – from avoiding significant child support obligations by

becoming unemployed or taking a lower paying job. See id. But the Guidelines do not

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

paychecks, nor do the Guidelines require that parents work to their full economic potential.


                                              6
Id. “It is not our function . . . to approve or disapprove of the lifestyle of [parents] or their

career choices and the means by which they choose to discharge their obligations in general.”

Id. “To determine whether potential income should be imputed, the trial court should review

the obligor’s work history, occupational qualifications, prevailing job opportunities, and

earning levels in the community.” Homsher v. Homsher, 678 N.E.2d 1159, 1164 (Ind. Ct.

App. 1997).

          The record reveals sufficient basis for the trial court to not impute income to Mother.

Mother earned slightly less than $80,000 in 2009, and was on pace to make more than that in

2010 when she left her position as branch director of Favorite Healthcare Staffing to start her

own company, Aramat Consulting. At Favorite Healthcare, Mother was a branch director

and director of operations responsible for management, recruitment, hiring, retention, and

sales in Indiana. Her work at Aramat is substantially similar.

          Mother testified regarding Favorite Healthcare’s reorganization of some of its staff

and responsibilities prior to Mother leaving. This includes her testimony that her direct

supervisor was demoted and that another supervisor, who was a regional director, was

repositioned to become a branch director in Portland1 with a salary reduced by more than

two-thirds. Mother also testified that upon leaving Favorite Healthcare, her assistant took

over her position for an annual salary of $32,000, which Mother “was told was more




          1
              The record does not indicate if this refers to Portland, Indiana, or another Portland in the United
States.


                                                         7
comparable for the position.”2 Tr. at 104. Mother stated that there might have been an

opportunity for her to remain at Favorite Healthcare and be paid the same salary, but she

would be reassigned to a position managing vendors, which Mother noted she had “already

done”; the position would be in Kansas City, so it would require her relocation; and the

position would involve her traveling seventy-five percent of the time. This description of the

potential Kansas City opportunity suggests Mother was focused on advancing her career by

taking on new responsibilities in a position which did not require relocation or extensive

travel. See id. at 94 (Mother stating that while running Aramat she can vary her hours

according to the children’s activities and needs).

        Mother testified that she began to consider other employment options in June 2010.

She explored returning to a career in nursing, but concluded her potential income as a nurse

would be too low for her to support her family. She began to explore working at a company

similar to Favorite Healthcare, but due to a one-year non-compete clause in her Favorite

Healthcare contract, she stopped exploring this and other similar companies and decided to

start Aramat. She also noted that she did not consider seeking unemployment benefits to be a

viable option because she felt a need to personally provide for her children. Id. at 119-20.

        Father argues Mother “rush[ed]” to quit and should have stayed at her former position

until she was terminated or “received some unsatisfactory change to her former job.” Brief

of Appellant at 11. But the law does not require her to have waited. Whether Mother chose


        2
          The potential lack of reliability of the hearsay statement regarding the appropriate value of Mother’s
position is irrelevant for our analysis. We will consider this evidence as if it were not hearsay because a
challenge was not preserved with a contemporaneous objection, and we do not discount its reliability for lack

                                                       8
to leave her job or was fired is only one part of the trial court’s broader determination of

whether Mother’s employment and income circumstances changed due to a desire to avoid

significant child support obligations by becoming unemployed or taking a lower paying job.

Mother’s testimony explaining the circumstances which led to her leaving Favorite

Healthcare and starting Aramat supports the trial court’s apparent conclusion that Mother did

not so intend, and that income should not be imputed to Mother.

                        B. Calculation of Mother’s Income from Aramat

        Father next argues the trial court miscalculated Mother’s income from Aramat. In

support, he refers us to portions of the transcript of Mother’s testimony and Aramat invoices

which Mother submitted to the trial court. He also points out the fluctuation of Mother’s

income and argues Mother’s reports are suspicious and somewhat fraudulent because her

fiancé’s business is one of Aramat’s two clients. While we agree that the patronage of

Aramat by Mother’s fiancé makes the amount of her income somewhat suspicious, especially

as one of two clients, we decline to reweigh the evidence and conclude that the trial court’s

decision is clearly against the logic and effect of the facts and circumstances in this regard.

        We acknowledge that there is some inconsistency in the evidence regarding Mother’s

current income. Mother’s testimony suggests a weekly income of about $1,154 per week,

Aramat invoices in total suggest a weekly income of about $1,286 per week, and Aramat

invoices based on the last three months (February, March, and April) suggest a weekly

income of about $1,154 per week. We refer to the last three months because those could be


of further detail because we do not weigh the evidence or judge the credibility of witnesses.

                                                     9
the most relevant and Mother received the same amount for each of the last three months

after several months of fluctuating payment from one of her clients, so it appears to be a new,

regular rate. We refrain from finding or concluding that the trial court must use the number

for the last three months, and we note that one of Mother’s clients paid her two February

payments and no March payment, which suggests some error because this client paid $2,000

each of the four previous months (October through January) and again for the following

month, April. We refrain from finding or concluding that this was an error, but point this out

for the trial court’s benefit.

       In any event, there is no evidence in the record which suggests Mother’s income is

about $1,067 per week, as the trial court found and used to calculate the parties’ child support

obligations. The only portion of the record where this number appears is Mother’s child

support obligation worksheet. Therefore, we remand with instructions for the trial court to

evaluate the evidence heretofore presented and determine Mother’s current income.

                                    C. Clothing Allowance

       Father argues the trial court erred in not explicitly eliminating Father’s obligation to

pay to Mother an allowance for the children’s clothing of $600 per year. Mother agrees and

notes that she does not read the trial court order to require Father’s continued payment of the

clothing allowance. Brief of Appellee and Cross-Appellant at 9-10 n.2. We also agree, and

remand with instructions for the trial court to explicitly order that Father is no longer required

to pay to Mother a clothing allowance.




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                              D. Father’s Parenting Time Credit

       Under Child Support Guideline 6, a non-custodial parent is afforded “credit” to his or

her child support obligation for hosting his or her children overnight. The credit is based

upon the number of overnights a child or children spends with the non-custodial parent.

Grant v. Hager, 868 N.E.2d 801, 802 (Ind. 2007). “If the court determines it is necessary to

deviate from the parenting time credit, it shall state its reasons in the order.” Ind. Child

Support Guideline 6 (cmt.).

       On appeal Father and Mother agree that the trial court erred in calculating the number

of overnights for which Father should receive credit, 181, and also agree that the correct

number for which Father should receive credit is 113. We therefore remand to the trial court

with instructions to adjust Father’s parenting time credit to 113 days without holding a

hearing.

                                         Conclusion

       The trial court did not abuse its discretion by declining to impute income to Mother.

We reverse and remand, however, with instructions for the trial court to evaluate the

evidence presented and calculate Mother’s current income, and to reduce Father’s parenting

time credit to 113 overnights. Upon doing so, we order the trial court to recalculate the

parties’ child support obligations without the necessity of holding another hearing, and

explicitly order that Father cease paying to Mother a clothing allowance.

       Reversed and remanded.

BAILEY, J., and MATHIAS, J., concur.


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