      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                  Jan 20 2016, 5:51 am

      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Dan J. May                                               Jeffry G. Price
      Kokomo, Indiana                                          Peru, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Janel Manriquez,                                         January 20, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               52A04-1503-DR-118
              v.                                               Appeal from the Miami Superior
                                                               Court II
      Derek Lee Manriquez,                                     The Honorable George A.
      Appellee-Plaintiff                                       Hopkins, Special Judge
                                                               Trial Court Cause No.
                                                               52D02-1309-DR-270



      Altice, Judge.


                                               Case Summary


[1]   Janel Manriquez (Mother) appeals the trial court’s final decree of dissolution of

      her marriage to Derek Lee Manriquez (Father). Although she sets out five

      issues for review, her arguments boil down to two issues. First, did the trial

      Court of Appeals of Indiana | Memorandum Decision 52A04-1503-DR-118 | January 20, 2016            Page 1 of 9
      court err in failing to divide Father’s 2013 tax refund between the parties?

      Second, did the trial court abuse its discretion in the determination of parenting

      time?


[2]   We affirm.


                                       Facts & Procedural History


[3]   Mother and Father were married on December 30, 2008. They have two

      children together, J.M. and B.M., born July 2008 and October 2011

      respectively. The parties separated in August 2013 and Mother filed for divorce

      on September 10, 2013, a little more than a year after the family returned from

      living in Texas.


[4]   Since July 2012, Father has worked night shifts at the Indiana Department of

      Correction. He works from about 6:00 p.m. until 6:00 a.m. on seven nights

      over a two-week period. The first week he works on Monday, Tuesday,

      Friday, Saturday, and Sunday. He then works Wednesday and Thursday the

      next week. In light of Father’s non-traditional work schedule and Mother’s

      unemployment, the parties shared custody of the children after their separation.

      They agreed that Mother would care for the children in her home on the days

      Father worked, and Father would care for them on the remaining days in his

      parents’ home, where he was temporarily living to save money. This

      arrangement resulted in the parties having an equal amount of parenting time

      during a two-week period.



      Court of Appeals of Indiana | Memorandum Decision 52A04-1503-DR-118 | January 20, 2016   Page 2 of 9
[5]   Following a provisional hearing on February 10, 2014, the trial court granted

      legal custody of the children to Father and continued the parties’ arrangement

      regarding shared physical custody. This was despite Mother’s request for

      custody of the children with Father having parenting time on alternating

      weekends. The court found that while the shared arrangement was “unwieldy”

      it was “satisfactory and justifie[d] a deviation from the Specific Parenting Time

      Provisions (Section II) of the Indiana Parenting Time Guidelines”. Appellant’s

      Appendix at 20. Additionally, the court ordered Father to pay $27 per week in

      child support.


[6]   The final hearing was held on November 13 and December 8, 2014. Both

      parties sought legal and physical custody of the children. J.M. was in first

      grade at the time of the final hearing. Mother testified that if she obtained

      custody of the children, J.M.’s school would change because she lived in a

      different county.


[7]   With respect to custody, Mother testified that the existing arrangement was not

      in the best interest of the children. She noted several disagreements between

      her and Father that had made the children upset. She indicated that this had

      been the atmosphere and relationship between the parties since the provisional

      order. Further, Mother’s proposed child support worksheet was calculated

      based on Father exercising parenting time pursuant to the Indiana Parenting

      Time Guidelines (the IPTG).




      Court of Appeals of Indiana | Memorandum Decision 52A04-1503-DR-118 | January 20, 2016   Page 3 of 9
[8]    The record indicates that Mother became employed full time during the

       provisional period. Since March 2014, she has worked Monday through Friday

       from 8:30 a.m. to 5:30 p.m. Father’s testimony indicated that the parties

       modified the shared-custody arrangement once Mother began working. In

       vague terms, Father testified that after she became employed, Mother would

       care for the children while he was working “whenever she was home”.

       Transcript at 117. Father indicated that if he had custody of the children, he

       would propose that the “sharing of [the] kids…stay like that”. Id.


[9]    On December 15, 2014, the trial court issued its final decree of dissolution in

       which the court divided the parties’ marital estate and determined child custody

       and support. Relevant to this appeal, the court split a $1015 tax refund between

       the parties, awarded physical and legal custody of the children to Father,

       ordered Mother to pay child support of $59 per week, and indicated that the

       IPTG applied.


[10]   Mother filed a motion to correct error on January 7, 2015, arguing among other

       things that the court failed to include Father’s 2013 tax refund in the marital

       estate. Shortly thereafter, she filed an amended motion, in which she added a

       claim that the trial court erred “by failing to incorporate into its ruling the

       agreement of the parties to continue the shared custody arrangement whereby

       both parties testified and agreed that the Mother should have the children while

       the Father worked his night shift and vice versa.” Appellant’s Appendix at 24.

       Father filed a response to the amended motion to correct error, but Mother did

       not include this document in her appendix.

       Court of Appeals of Indiana | Memorandum Decision 52A04-1503-DR-118 | January 20, 2016   Page 4 of 9
[11]   The trial court did not rule upon the motion to correct error or set it for hearing

       within forty-five days. Accordingly, the motion was deemed denied on or

       about February 21, 2015. Mother timely appealed.


                                               Discussion & Decision


                                         1. Division of Marital Property


[12]   Mother initially contends that the trial court erred by failing to divide Father’s

       2013 tax refund. She directs us to the provisional hearing and order referencing

       the parties’ 2013 tax returns. Specifically, at the provisional hearing, Father

       testified that he had filed his 2013 tax return and expected a refund of

       “approximately 42 hundred.” Supplemental Transcript at 39. Accordingly, the

       trial court provisionally ordered:

                  11. The father has filed tax returns for tax year 2013. Upon
                  receipt of any refund(s) the father shall deliver the refund(s) to his
                  attorney who shall hold the same in trust until further order of
                  the court.


                  In the event the mother receives any tax refund(s) for tax year
                  2013, she shall deliver the refund(s) to her attorney who shall
                  hold the same in trust until further order of the court.


       Appellant’s Appendix at 20.1




       1
           The provisional order terminated once the final decree was entered. Ind. Code § 31-15-4-14.


       Court of Appeals of Indiana | Memorandum Decision 52A04-1503-DR-118 | January 20, 2016            Page 5 of 9
[13]   Mother fails to acknowledge that no evidence was presented at the final hearing

       regarding Father’s 2013 tax return. Indeed, her own exhibit listing assets and

       debts of the marriage generally indicated “Tax Refund” with a value of $1,015.

       Volume of Exhibits at Petitioner’s Exhibit 1. Her testimony did not further

       enlighten the trial court regarding Father’s 2013 tax return. She testified that

       the parties had already divided a tax refund from 2012 in the amount of $2500.

       She then acknowledged that her attorney “ha[d] the 2013…tax refund of a

       thousand fifteen in [his] trust account”. Transcript at 20. No mention was

       made of a separate tax refund in the amount of $4200.


[14]   In its order, the trial court provided: “The parties received a tax refund in the

       amount of $1,015.00. Each party shall receive one half of the refund except the

       amount for mother shall be offset by the amount she owes the father for the

       unpaid medical bills ($236.40).” Appellant’s Appendix at 16. This was clearly

       supported by the evidence presented at the final hearing. Further, even if we

       were to assume that Father’s 2013 tax refund was erroneously excluded from

       the marital estate, Mother invited that error. “The doctrine of invited error is

       grounded in estoppel and precludes a party from taking advantage of an error

       that he or she commits, invites, or which is the natural consequence of his or

       her own neglect or misconduct.” Balicki v. Balicki, 837 N.E.2d 532, 541 (Ind.

       Ct. App. 2005), trans. denied. See also Galloway v. Galloway, 855 N.E.2d 302, 306

       (Ind. Ct. App. 2006) (the burden of producing evidence as to the value of

       marital property rests squarely on the shoulders of the parties and their

       attorneys). Having failed to introduce evidence of the value or existence of a


       Court of Appeals of Indiana | Memorandum Decision 52A04-1503-DR-118 | January 20, 2016   Page 6 of 9
       separate tax refund, Mother is estopped from challenging the trial court’s

       distribution. See Galloway, 855 N.E.2d at 306.


                                              2. Parenting Time


[15]   Mother does not challenge the trial court’s award of legal and physical custody

       of the children to Father. She contends only that the trial court abused its

       discretion by failing to order parenting time beyond the minimum set out in the

       IPTG. Specifically, Mother argues that the trial court should have continued

       the parties’ arrangement in which she would have the children overnights when

       Father worked his night shifts.


[16]   Decisions about parenting time require courts to give “foremost consideration”

       to the best interest of the children. Perkinson v. Perkinson, 989 N.E.2d 758, 761

       (Ind. 2013). We review such decisions for an abuse of discretion. Id.

       “Judgments in custody matters typically turn on the facts and will be set aside

       only when they are clearly erroneous.” Id. We will not substitute our judgment

       if any evidence or legitimate inferences support the trial court’s judgment. Id.

       See also Gomez v. Gomez, 887 N.E.2d 977, 983 (Ind. Ct. App. 2008) (“on appeal

       it is not enough that the evidence might support some other conclusion, but it

       must positively require the conclusion contended for by appellant before there is

       a basis for reversal”).


[17]   The evidence reveals that upon their separation Mother and Father

       implemented a unique arrangement to provide care for the children while

       Father worked his night shifts. This arrangement resulted in the parties

       Court of Appeals of Indiana | Memorandum Decision 52A04-1503-DR-118 | January 20, 2016   Page 7 of 9
       effectively having the children an equal amount of time over a two-week period.

       By the time of the provisional hearing, Mother was no longer in favor of this

       arrangement and sought primary custody with Father having parenting time

       pursuant to the IPTG. The trial court, however, chose to provisionally adopt

       the parties’ original arrangement, which the court found “unwieldy” but

       “satisfactory”. Appellant’s Appendix at 20.


[18]   Once Mother began working in March 2014, the parties apparently modified

       the arrangement. Although not specifically defined at trial, it can be reasonably

       inferred that the modified arrangement resulted in some reduction in Mother’s

       time with the children due to her work schedule. Mother testified at the final

       hearing that the custody arrangement was not working in the best interest of the

       children, and she testified regarding disagreements between she and Father that

       had negatively affected the children. As a result, Mother asked the trial court

       for custody of the children and submitted a child support worksheet indicating

       that Father should be credited with ninety-eight overnights per year, which

       equates to parenting time pursuant to the IPTG.


[19]   In its final order, the trial court summarily granted custody to Father and

       ordered that the parties apply the IPTG. Mother argues on appeal that the trial

       court abused its discretion because it “ignored [Mother] and [Father’s] agreed

       joint parenting plan” without explanation. 2 Appellant’s Brief at 12. On the




       2
         To the extent Mother asserts that the trial court erred by not entering written findings regarding the best
       interest of the children, we observe that neither party requested that the court enter specific findings. See

       Court of Appeals of Indiana | Memorandum Decision 52A04-1503-DR-118 | January 20, 2016                Page 8 of 9
       contrary, the record firmly establishes that at the provisional hearing and the

       final hearing, Mother was opposed to the shared parenting plan originally

       implemented by the parties. She expressly testified at the final hearing that the

       plan was no longer in the children’s best interest. Accordingly, no agreed

       parenting plan existed between the parties at the time of the final hearing. 3

       Under the circumstances, we do not find that the trial court abused its

       discretion by applying the IPTG rather than continuing the provisional

       arrangement.


[20]   Judgment affirmed.


       Robb, J., and Barnes, J., concur.




       Hegerfeld v. Hegerfeld, 555 N.E.2d 853, 856 (Ind. Ct. App. 1990) (“[n]either [party] requested specific findings;
       therefore, it was unnecessary for the trial court to make specific findings that the custody award was in the
       children’s best interest”).
       3
        The IPTG certainly encourage parenting plans created by the parties. Section II(A) provides that if such an
       agreement is reached, “the parenting plan shall be reduced to writing, signed by both parties, and filed for
       approval by the court in order to be enforceable.”

       Court of Appeals of Indiana | Memorandum Decision 52A04-1503-DR-118 | January 20, 2016                Page 9 of 9
