                                                               FILED
                                                          Apr 26 2017, 5:31 am

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Perry D. Shilts                                            Douglas E. Johnston
Shilts & Setlak, LLC                                       Angelica N. Fuelling
Fort Wayne, Indiana                                        Tourkow, Crell, Rosenblatt &
                                                           Johnston, LLP
                                                           Fort Wayne, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Karen B. Salser,                                           April 26, 2017
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           02A03-1606-DR-1380
        v.                                                 Appeal from the Allen Superior
                                                           Court
Gregg A. Salser,                                           The Honorable Sherry A. Hartzler,
Appellee-Respondent.                                       Magistrate
                                                           The Honorable Charles F. Pratt,
                                                           Judge
                                                           Trial Court Cause No.
                                                           02D08-1412-DR-1616



Brown, Judge.




Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017              Page 1 of 33
[1]   Karen B. Salser (“Mother”) appeals from the amended decree of dissolution of

      marriage issued by the trial court regarding her marriage to Gregg A. Salser

      (“Father”). Mother raises four issues which we consolidate and restate as

      whether the court erred in entering its child support order and educational

      support order. We reverse and remand.


                                       Facts and Procedural History

[2]   Father and Mother married on January 2, 1993. In 2001, the parties adopted

      their son Derric, who was five years old at the time, and was nineteen years old

      and a freshman at Purdue University at the time of dissolution. A week before

      adopting Derric, Mother became pregnant and later gave birth to daughter E.S.,

      who was thirteen years old at the time of the dissolution hearing.


[3]   On December 29, 2014, Mother filed a Petition for Dissolution of Marriage. At

      the time of the hearing, Mother was forty-eight years old and is a practicing

      nurse practitioner. Prior to Derric’s adoption, she worked full-time, and after

      the adoption and the birth of E.S., she was a stay-at-home parent for the next

      four or five years. Once E.S. started preschool, she resumed working as a nurse

      practitioner on a part-time basis. For the past five years, except for one year

      when she home-schooled E.S. for fourth grade, Mother has worked part-time as

      a nurse practitioner at an integrative medical office owned by Dr. Gladd. Prior

      to that, she worked with Lutheran Cardiac, Dr. Sloan, and Parkview Memorial

      Hospital on a part-time basis. When she started at Dr. Gladd’s office, she

      worked one-and-one-half to two days per week, but this has increased to two to

      three days per week and had been three days per week for the two years prior to
      Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 2 of 33
      trial. Mother earns $55 per hour at Dr. Gladd’s office. Her annual income was

      $48,292 in 2012, $49,786 in 2013, and $39,946 in 2014. In 2015, through

      November 29, 2015, she had earned $47,066.75.


[4]   Father worked with a number of different companies as a pharmaceutical sales

      representative over the past twenty years. At the time of the dissolution

      hearing, Father worked for Depomed, where he had begun working in August

      2015. His compensation includes a $95,000 annual salary as well as a potential

      annual bonus of up to $27,000 based on criteria identified in his employment

      contract.


[5]   Derric received an ROTC scholarship to attend Purdue University that paid for

      tuition, books, and miscellaneous expenses, leaving $10,000 to $12,000 in

      yearly expenses. The parties did not have savings earmarked to assist in paying

      these expenses. Derric obtained a $5,500 loan for his freshman year, from 2015

      to 2016. He also had savings in his name and savings bonds available to him to

      assist in paying his college expenses.


[6]   E.S. is involved in a number of after-school activities, including volleyball,

      choir, and swimming. After-school care is available for her in the event that

      both parents are working.


[7]   On September 22, 2015, the court held a hearing on a motion by Father to

      modify support as to the request for an educational support order for Derric,




      Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 3 of 33
      and the matter was taken under advisement. 1 The court held the final hearing

      on the dissolution petition on December 11, 14, and 22, 2015. At the hearing,

      Mother testified that her duties in Dr. Gladd’s integrative medical practice are

      significantly different from the duties of a nurse practitioner in a traditional

      medical practice and that she enjoys her current practice and does not wish to

      leave. She also testified that there are no additional hours available at Dr.

      Gladd’s office but that she would “absolutely” work additional hours “as the

      hours become available . . . .” Transcript 1 at 176. She also testified that she

      believed her being a stay-at-home mom for four years, subsequently working

      part-time, and home-schooling E.S. for a year was all by agreement with

      Father.


[8]   Father testified that during the marriage he “wanted [Mother] to work full-

      time” and indicated that Mother “defied” him in that regard. Transcript 2 at

      77. He testified that as of the date of trial, he had earned a single bonus at his

      current job amounting to $1,300 and that such bonuses are based upon

      performance. Regarding Derric’s college costs, Father requested that the court

      order Mother and him to equally contribute to those remaining expenses, and

      Mother testified that she was unable to contribute financially to those costs.


[9]   On March 18, 2016, the court issued its Decree of Dissolution of Marriage. On

      April 7, 2016, Mother filed a motion to correct error, and on April 25, 2016, the




      1
          Neither Father’s motion, nor the transcript of this hearing, is included in the record on appeal.


      Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017                               Page 4 of 33
court conducted a hearing on the motion. 2 On May 24, 2016, the court issued

its Amended Decree of Dissolution of Marriage (the “Amended Decree”). The

court awarded joint legal custody of E.S. and ordered that the parties share

parenting time equally, alternating weekly. It determined the total value of the

marital estate to be $527,019.85, awarded Mother net assets totaling $246,265,

awarded Father net assets totaling $280,754.85, and ordered that Father pay

Mother $17,245 to equalize the division of assets. The Amended Decree

contained findings consistent with the foregoing as well as the following:

                             CUSTODY AND PARENTING TIME


                                                     *****


           9. Historically, the parties jointly were involved in the raising of
           the children, but [Mother] was the primary caregiver inasmuch as
           for periods of time she either was a full-time stay-at-home
           mother, home-schooled [E.S.] for at least one school year and
           during the majority of the marriage worked only on a part-time
           basis. However, early in the marriage she worked full-time, and
           at times of [Father’s] unemployment, [Mother] was able to work
           additional hours.


                                                     *****


                                            CHILD SUPPORT




2
    The transcript of this hearing is not included in the record.


Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017    Page 5 of 33
        37. Father is employed with Depomed at an annual salary of
        Ninety-Five Thousand Dollars ($95,000.00), and is eligible for
        periodic bonuses.


        38. His first bonus with this employer was in the sum of One
        Thousand Three Hundred Dollars ($1,300.00) and will vary from
        time to time. Mother also receives bonuses from time to time.


        39. Because the bonuses are uncertain and not predictable, the
        Court does not factor same into the base child support
        calculation.


        40. Mother is a Nurse Practitioner, presently employed by Dr.
        Gladd, M.D. She presently works on a part-time basis and
        makes Fifty Five Dollars ($55.00) per hour. Mother holds an
        advanced degree (Master’s degree) and licensure to be a Nurse
        Practitioner in the State of Indiana.


        41. Mother has been a Nurse Practitioner for at least fifteen (15)
        years.


        42. In the past, she has worked as a Nurse Practitioner for an
        endocrinologist, family practice, occupational medicine, and
        presently works in the area of integrative medicine.


        43. Her licensure allows her to practice in any medical field,
        including a general family practice, occupational medicine,
        cardiac care unit, and even in a nursing home setting.


        44. Mother testified that she values her role of mother and thus
        does not seek full-time employment.


        45. No evidence was presented that she is incapable of full-time
        employment.
Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017    Page 6 of 33
        46. Although working on a part-time basis during the younger
        years of the children, with the eldest child, Derric now being out
        of the home and the younger child now being in middle school,
        Mother is capable of working on a full-time basis.


        47. The court therefore finds that her income should be imputed
        at her current hourly rate for a forty (40) hour week, or Two
        Thousand Two Hundred Dollars ($2,200.00) per week.
        Additionally, this Court previously found in the Court’s ruling on
        the apportionment of college expenses for their child, Derric, that
        Mother holds an advanced degree, has the ability to work full-
        time and earn substantially more income. Accordingly, the
        Court assigns potential income of Two Thousand Two Hundred
        Dollars ($2,200.00).


        48. At that income level, the parents are approximately equal
        wage earners.


                                               *****


        50. Based upon the relative incomes of the parties, the cost of
        health insurance premiums for the children, and the parenting
        time apportionment, the Court deviates from the recommended
        support guidelines as the recommended child support is nominal
        and the parenting plan will result in an equal sharing of
        controlled and transferred expenses of the child. Thus, the Court
        Orders that there shall be a Zero Dollar ($0) child support order
        entered commencing the first Friday after the entry of this Decree
        herein. In addition to regular support, the parties shall equally
        share in the cost of the child’s private schooling cost. Any
        agreed-upon activities of the child shall also be borne equally.


                                               *****



Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017    Page 7 of 33
                           POST SECONDARY EDUCATION


        52. The parties’ child, Derric, commenced his freshman year at
        Purdue University in August, 2015.


        53. Pursuant to the Court’s prior Order herein, both parties are
        capable of contributing to the cost of the child’s education at
        Purdue University.


        54. The Court finds that Mother has an advanced degree and is
        capable of making an income substantially more than in her
        current part-time employment.


                                               *****


        56. The Court also finds that Derric has available to him a
        number of United States Savings Bonds, of which the present
        value is currently unknown. These United States Savings Bonds
        were gifted to the child by the parties and others, and are set over
        to the child to be used as he sees fit.


        57. The cost for [Derric] to attend Purdue University is
        approximately Twenty-Three Thousand Eight Hundred Twenty-
        Eight ($23,828.00) per year.


        58. [Derric] received a scholarship from the Navy ROTC in the
        amount of Ten Thousand Two Dollars ($10,002.00) per year.
        This covered the cost of fees and tuition for the 2015/2016
        academic year.


        59. The Court finds that Derric will also receive a stipend of
        Two Hundred Fifty Dollars ($250.00) per month intended to
        cover incidentals, uniforms and equipment for his ROTC
        training.
Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 8 of 33
        60. After applying Derric’s Navy ROTC scholarship, the costs
        for housing, food, books, supplies, travel expenses, and
        miscellaneous fees and expenses are not fully covered.


        61. Based upon the incomes set forth above, the Court finds
        [and] Orders that Mother and Father shall have an equal share of
        income for purposes of this educational support order.


                                               *****


        65. The Court allocates the expense for the 2015/2016 academic
        year . . . as follows: Derric shall be responsible for the first thirty-
        four percent (34%) of the costs. The remaining expenses shall be
        the parental share of which Father shall pay fifty percent (50%)
        and Mother shall pay fifty percent (50%).


        66. For the next three academic years and one (1) semester, the
        Court allocates the education expenses as follows: Derric shall be
        responsible for the first thirty-four percent (34%) of the costs.
        The remaining expenses shall be the parental share of which
        Father shall pay fifty percent (50%) and Mother shall pay fifty
        percent (50%).


        67. Any scholarships or grants, currently the Navy ROTC
        scholarship, shall be credited toward Derric’s share of expenses,
        with any excess amount credited toward Mother’s share and
        Father’s share on an equal basis.


                                               *****


        71. Derric testified in court that he felt he wanted parent
        contributions “as they said they would.” Although on cross-
        examination, Mother’s counsel elicited testimony from Derric
        that he could cover his expenses through student loans, the

Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017      Page 9 of 33
               parties’ ability to pay and the prior history of both parties having
               college degrees (or more) all support a finding that they should
               contribute to the education of Derric as requested by Father and
               as Derric indicated that they had previously agreed.


                                                      *****


               76. The evidence established that Derric borrowed money for the
               freshman year since there was no ruling by the Court on college.
               Accordingly, the payments ordered herein shall be made to
               Derric and he may use them as he sees fit to repay said loan or as
               he decides.


       Appellant’s Appendix 2 at 28, 34-40.


                                                     Discussion

[10]   The issue is whether the trial court erred in entering its child support order and

       educational support order. Where, as here, the trial court issued findings of fact

       and conclusions at the request of one of the parties, we apply a two-tiered

       standard of review. Quinn v. Quinn, 62 N.E.3d 1212, 1220 (Ind. Ct. App. 2016).

       First, we determine whether the evidence supports the findings, and second,

       whether the findings support the judgment. Id. The trial court’s findings are

       controlling unless the record includes no facts to support them either directly or

       by inference. Id. Legal conclusions, however, are reviewed de novo. Id. We set

       aside a trial court’s judgment only if it is clearly erroneous. Id. “Clear error

       occurs when our review of the evidence most favorable to the judgment leaves

       us firmly convinced that a mistake has been made.” Id.



       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 10 of 33
[11]   Child support calculations are made utilizing the income shares model set forth

       in the Indiana Child Support Guidelines. Sandlin v. Sandlin, 972 N.E.2d 371,

       374 (Ind. Ct. App. 2012). 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. Id. A trial

       court’s calculation of a child support obligation is presumptively valid and will

       be reversed only if it is clearly erroneous or contrary to law. Young v. Young,

       891 N.E.2d 1045, 1047 (Ind. 2008). Again, “[a] decision is clearly erroneous if

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

       trial court.” Id. In conducting our review, we will not reweigh the evidence

       and will consider only the evidence most favorable to the judgment. Saalfrank v.

       Saalfrank, 899 N.E.2d 671, 674 (Ind. Ct. App. 2008).


[12]   Mother challenges the court’s rulings regarding: (A) imputing potential income

       to her; (B) not including the parties’ potential bonuses in calculating income;

       and (C) ordering Mother to equally contribute to Derric’s college expenses. We

       examine each argument separately.


       A. Potential Income


[13]   Mother argues that, “[a]t the heart of this appeal is the trial court’s decision to

       assess potential income to [Mother] . . . in an amount twice that of her historic

       earnings,” which she terms a case of first impression. Appellant’s Brief at 16.

       She asserts that her average earnings for the previous three years was $43,226


       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 11 of 33
       per year, or $831.28 per week, and that in 2015 through November 1st she had

       earned $47,066.75, which included a bonus of $1,996.25. She argues that in the

       eight years prior to the dissolution hearing she had worked only part-time and

       testified she wanted to remain in that capacity in order to continue providing

       care and supervision for her daughter as she had in the past. She states that she

       enjoys her current integrative medicine practice and that there are no additional

       hours available with her current employer. As she testified at trial, she does not

       wish to leave her current employer for a different practice, despite the fact that

       her training would allow her to do so. She argues that, should the trial court’s

       reasoning prevail, decisions by “[t]eachers and judges leaving private practice,

       teaching disliked subjects and accepting reduced income to pursue public

       service” would be called into question as those individuals would not be

       theoretically living up to their earning potential. Id. at 23. She also states that,

       “[g]iven that there is no dispute as to [Mother’s] historical employment and

       income, the trial court’s decision to assess this potential income to [Mother] is

       unexplainable.” Id. at 24.


[14]   Father disputes Mother’s suggestion that this is a case of first impression and

       cites to cases imputing potential income for a voluntarily underemployed

       parent. He argues that the court was presented with evidence demonstrating

       that Mother worked full-time prior to having children, that she worked two jobs

       while he was unemployed, and that “the only reason she was not working full-

       time is because her passion ‘is to be a mom.’” Appellee’s Brief at 13. He

       asserts that Derric is now in college and E.S. is thirteen years old “and is a very


       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 12 of 33
       involved young woman,” id. at 16, that the court ordered equal parenting time,

       and that “it is uncontroverted that [Mother] has the children much less than

       when the children were younger and the parties were married.” Id. at 13.

       Father argues that there was no evidence presented that Mother was unable to

       work full-time and rather she simply chooses not to do so, that her stated reason

       of wanting to prioritize being a mother “is no longer applicable,” and

       accordingly the court did not err in its child support calculation. Id. at 16.


[15]   Ind. Child Support Guideline 3(A) provides the framework for a court to

       determine the amount of child support based upon weekly gross income and

       states that “‘weekly gross income’ is defined as actual weekly gross income of

       the parent if employed to full capacity, potential income if unemployed or

       underemployed, and imputed income based upon ‘in‑kind’ benefits.” Child

       Supp.G.3(A)(1) (emphasis added). Regarding potential income, the Guidelines

       state:

                If a court finds a parent is voluntarily unemployed or
                underemployed without just cause, child support shall be
                calculated based on a determination of potential income. A
                determination of potential income shall be made by determining
                employment potential and probable earnings level based on the
                obligor’s work history, occupational qualifications, prevailing job
                opportunities, and earnings levels in the community. If there is
                no work history and no higher education or vocational training,
                the facts of the case may indicate that Weekly Gross Income be
                set at least at the federal minimum wage level.




       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017    Page 13 of 33
       Child Supp.G.3(A)(3). The commentary to Guideline 3(A) cautions courts to

       use “a great deal of discretion” in making a determination of potential income.

       Child Supp.G.3(A) cmt. 2(c). It describes two purposes for making a potential

       income determination, including “to discourage a parent from taking a lower

       paying job to avoid the payment of significant support” and “to fairly allocate

       the support obligation when one parent remarries and, because of the income of

       the new spouse, chooses not to be employed.” Id.; see also Sandlin, 972 N.E.2d

       at 375 (“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.”). This Court has observed that,

       “[w]hile the Guidelines clearly indicate that a parent’s avoidance of child

       support is grounds for imputing potential income, it is not a necessary

       prerequisite,” noting that, the commentary suggests as an example that finding

       potential income may be appropriate where a parent “is unemployed by reason

       of involuntary layoff or job termination . . . .” In re Paternity of Pickett, 44

       N.E.3d 756, 766 (Ind. Ct. App. 2015). The commentary also observes that

       attributing potential income can result in unrealistic support obligations which

       could be contrary to the best interests of the children and provides six examples

       to illustrate some of the considerations affecting whether to attribute potential

       income to a parent. Child Supp.G.3(A) cmt. 2(c).


[16]   In Sandlin, we stated that “the Guidelines do not require or encourage parents

       to make career decisions based strictly upon the size of potential paychecks, nor


       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017    Page 14 of 33
       do the Guidelines require that parents work to their full economic potential.”

       Sandlin, 972 N.E.2d at 375. “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. We observed that the

       Guidelines instruct courts to “review the obligor’s work history, occupational

       qualifications, prevailing job opportunities, and earning levels in the

       community.” Id.


[17]   In this case, the evidence is undisputed that Mother has for most of the past five

       years worked in Dr. Gladd’s integrative medical office on a part-time basis and

       currently works three days a week. There are no additional hours available for

       Mother to work in Dr. Gladd’s office, although she testified that she would

       “absolutely” work additional hours “as the hours become available . . . .”

       Transcript 1 at 176. Mother does not wish to leave her integrative medicine

       practice for a traditional medicine practice, which would be required were she

       to seek full-time employment and attempt to earn income approaching the level

       assigned to her by the trial court of $2,200 per week, or $114,400 annually.


[18]   Father argues that we should affirm the court’s determination of potential

       income based upon Turner v. Turner, 785 N.E.2d 259 (Ind. Ct. App. 2003). In

       that case, the trial court imputed potential income to the father in the amount of

       $500 per week, rather than his actual income of $300 per week, finding that he

       was voluntarily underemployed as a disc jockey working four days per week.

       785 N.E.2d at 260-261. The court entered findings in Turner that “[the father]

       has been employed at [at] least three (3) different jobs in the last five years.

       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 15 of 33
       [The father] is underemployed given his work history, his skills, and earning

       abilities,” and that “[i]t is impossible for the court to determine [father’s] actual

       gross income as . . . he is paid in cash . . . and he has not reported any income

       on tax returns for the last three years. [The father] has the education, work

       history, skills, and ability to earn more than $300 per week,” and that a

       reasonable sum to impute to the father was $500 per week, which was the same

       as the mother’s full-time employment income. Id. at 265. We affirmed,

       observing that “the court found that [the father] had made that amount of

       money in the past and that he can use his current income of $300 per week to

       supplement the income of any new job he may find.” Id. at 266.


[19]   Here, Mother has held the same job for the past five years and has an

       established history of earning on average $46,008 per year in each of the past

       three years prior to 2015 and $47,066.75 through November 1st of 2015 after she

       increased her days worked to three days per week. Mother is working in the

       field that she trained for as a nurse practitioner. Whereas the court in Turner

       entered a specific finding that the father “is underemployed given his work

       history, his skills, and earning abilities,” id. at 265, here the court made no such

       finding, instead determining simply that, despite her work history to the

       contrary, Mother should be working full-time because the parties’ older child is

       in college and their younger child is now thirteen years old.


[20]   As noted, the premise of the rule of imputing income is that the children should

       receive the same portion of parental income after a dissolution that they would

       have received if the family had remained intact. Sandlin, 972 N.E.2d at 374; see

       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 16 of 33
       also Payton v. Payton, 847 N.E.2d 251, 253 (Ind. Ct. App. 2006) (“Child support

       awards under the Guidelines are designed to provide the children as closely as

       possible with the same standard of living they would have enjoyed had the

       marriage not been dissolved.”). We find that Mother was neither voluntarily

       unemployed nor underemployed without just cause, nor are there present other

       circumstances such as an involuntary termination which might support the

       court’s conclusion to assess potential income to Mother which more than

       doubles the annual salary she has earned. The record reveals that the court’s

       determination of potential income would effectively force Mother to leave her

       current practice, which is not a career decision she would like to make, and seek

       employment as a nurse practitioner elsewhere. Accordingly, we conclude that

       the court’s decision to assign potential income to Mother was clearly erroneous.

       We reverse the court’s finding, and remand with instructions to recalculate

       Mother’s income based upon her present earnings and make other necessary

       adjustments to the Amended Decree based thereon.


       B. Bonus Income


[21]   Mother argues that Father’s employment arrangement provides the potential for

       $27,000 in bonus income annually, that such a potential bonus amounts to

       “additional income equaling 28.4% more than his base income,” and that the

       court erred in failing to account for such income. Appellant’s Brief at 25. She

       argues that “[e]mployment bonuses can be treated in numerous ways, including

       being ignored completely, having a percentage of each bonus paid to the

       support receiving parent, or being included in the base support calculation.” Id.

       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 17 of 33
       She contends that, assuming we find that the court erred in determining

       potential income and that accordingly she would be a support-receiving parent,

       “the trial court should have entered an order that [Father] pay a percentage of

       each bonus to [Mother] . . . .” Id. She also asserts that the court can account

       for her bonus income by using her gross income for the last four years “or

       [Mother’s] gross income for 2015 through November 29, 2015, where bonuses

       of $1,500.00 were specifically identified as having been received by her in

       2015.” Id.


[22]   Father argues that the Guidelines make clear that each situation is fact-sensitive

       and that the court was free to exclude irregular income so long as it articulated

       a reason for doing so that comports with the Guidelines’ principles, which it did

       in this matter. He points out that he had earned only $1,300 in bonuses the

       previous four months, which is nowhere near $27,000, and his bonuses are not

       guaranteed.


[23]   Ind. Child Support Guideline 3A addresses the definition of weekly gross

       income for the purposes of calculating child support and notes that “[w]eekly

       gross income of each parent includes income from any source, except as

       excluded below, and includes, but is not limited to, income from salaries,

       wages, commissions, bonuses . . . .” (Emphasis added). The Commentary to

       Guideline 3A provides further explanation as follows:


               2. Determination of Weekly Gross Income. Weekly Gross
               Income is the starting point in determining the child support
               obligation, and it must be calculated for both parents. . . .

       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 18 of 33
        The Child Support Obligation Worksheet does not include space
        to calculate Weekly Gross Income. It must be calculated
        separately and the result entered on the worksheet.


        In calculating Weekly Gross Income, it is helpful to begin with
        total income from all sources. This figure may not be the same
        as gross income for tax purposes. . . .


                                               *****


        b. Overtime, Commissions, Bonuses and Other Forms of
        Irregular Income. There are numerous forms of income that are
        irregular or nonguaranteed, which cause difficulty in accurately
        determining the gross income of a party. Overtime,
        commissions, bonuses, periodic partnership distributions,
        voluntary extra work and extra hours worked by a professional
        are all illustrations, but far from an all-inclusive list, of such
        items. Each is includable in the total income approach taken by
        the Guidelines, but each is also very fact sensitive.


        . . . . Care should be taken to set support based on dependable
        income, while at the same time providing children with the
        support to which they are entitled.


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


Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 19 of 33
               One method of treating irregular income is to determine the ratio
               of the basic child support obligation (line 4 of the worksheet) to
               the combined weekly adjusted income (line 3 of the worksheet)
               and apply this ratio to the irregular income during a fixed period.
               For example, if the basic obligation was $110.00 and the
               combined income was $650.00, the ratio would be .169 ($110.00
               / $650.00). The order of the court would then require the obligor
               to make a lump sum payment of .169 of the obligor’s irregular
               income received during the fixed period.


                          The use of this ratio will not result in an exact
               calculation of support paid on a weekly basis. It will result in an
               overstatement of the additional support due, and particularly so
               when average irregular income exceeds $250.00 per week or
               exceeds 75% of the regular adjusted Weekly Gross Income. In
               these latter cases the obligor may seek to have the irregular
               income calculation redetermined by the court.


                                                      *****


               Judges and practitioners should be innovative in finding ways to
               include income that would have benefited the family had it
               remained intact, but be receptive to deviations where reasons
               justify them. The foregoing discussion should not be interpreted
               to exclude consideration of irregular income of the custodial
               parent.


       Child Supp.G.3(A) cmt. 2.


[24]   The court declined to include bonus income in the base child support

       calculation, finding that such bonuses “are uncertain and not predictable.”

       Appellant’s Appendix 2 at 34. We observe that Father’s employment contract

       provides for a potential annual bonus of up to $27,000, which is equal to 28.4%

       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 20 of 33
       of his annual salary, and that he had earned $1,300 in bonus pay in the initial

       four months of working. Thus, it is potentially a substantial portion of his

       annual income as a pharmaceutical sales representative.


[25]   The Guidelines specify that courts include bonus income in calculating child

       support. We find the court’s reason to not include bonus income unpersuasive,

       and accordingly we conclude that its findings regarding bonus income are

       clearly erroneous. As discussed above, one method for determining how to

       include bonus income in a child support calculation is to calculate a percentage

       to be paid on a periodic, predetermined basis. A ratio discerned by dividing the

       weekly child support amount by the combined weekly adjusted income is one

       way to set this percentage. On remand, in recalculating child support without

       ascribing potential income to Mother, we order the court to include the parties’

       bonus income and set the amount in accordance with the Guidelines.


       C. Post-Secondary Education Expenses


[26]   Mother argues that the evidence submitted “reflects a paycheck-to-paycheck

       payment of living expenses during the provisional period,” that she received

       $129 per week in child support prior to the Amended Decree which assessed

       potential income and ended payments from Father, and that this fact worsened

       her already precarious financial situation. Appellant’s Brief at 27. She asserts

       that, despite the court’s findings that she “was barely satisfying her budget,




       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 21 of 33
       which included $29.00[ 3] [sic] per week in support, but did not include a

       mortgage nor expenses for her son’s college education,” it “referred to

       [Mother’s] potential income again” to support its decision to require both

       parties to contribute equally to Derric’s college expenses. Id. at 29. She argues

       that, as such, she should not have been ordered to contribute toward those

       expenses for the 2015-2016 academic year, and at a minimum if this Court

       remands with instructions to remove the determination of potential income, it

       should order the court to alter the percentages for contribution for that year.

       She similarly argues that this Court should not order her to contribute to

       Derric’s college expenses for the following three years or at a minimum adjust

       the percentages should this Court reverse the trial court’s potential income

       determination and account for Father’s potential bonuses.


[27]   Father argues that the evidence presented revealed that Mother “was ‘staying

       above water…taking care of the home and the expenses of the home and

       expenses of the children, etc.’” Appellee’s Brief at 19 (quoting Transcript 1 at

       50). He also asserts that Mother was awarded assets from the marital estate

       totaling $246,265, plus a $17,245 property equalization payment, and the

       amount she is required to contribute each year toward Derric’s college is

       approximately $6,913. He further argues that, as the court found, Mother has

       the ability to earn a salary that far exceeds her actual salary and this, coupled




       3
        The court entered provisional orders on March 12, 2015, ordering in part that Father pay $129 per week in
       child support. Appellant’s Appendix at 124, 127.

       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017                     Page 22 of 33
       with the parties’ assurances to Derric that they would contribute to his college

       expenses, supports the court’s conclusion.


[28]   “[A] child support order and an educational expense order are separate and

       distinct.” Panfill v. Fell, 19 N.E.3d 772, 777 (Ind. Ct. App. 2014), trans. denied.

       Ind. Code § 31-16-6-2 governs educational support and provides that an

       educational support order may include amounts for the child’s education in

       institutions of higher learning. “Although a parent is under no absolute legal

       duty to provide a college education for his children, a court may nevertheless

       order a parent to pay part or all of such costs when appropriate.” Id. (quoting

       Gilbert v. Gilbert, 777 N.E.2d 785, 793 (Ind. Ct. App. 2002)). The commentary

       for Indiana Child Support Guideline 8 provides in part that “[i]t is discretionary

       with the court to award post-secondary educational expenses and in what

       amount” and that, “[i]n making such a decision, the court should consider post-

       secondary education to be a group effort, and weigh the ability of each parent to

       contribute to payment of the expense, as well as the ability of the student to pay

       a portion of the expense.” Id. at 777-778 (quoting Child Supp.G. 8 cmt. (b)).

       The commentary also instructs:

               If the court determines that an award of post‑secondary
               educational expenses is appropriate, it should apportion the
               expenses between the parents and the child, taking into
               consideration the incomes and overall financial condition of the
               parents and the child, education gifts, education trust funds, and
               any other education savings program. The court should also take
               into consideration scholarships, grants, student loans, summer
               and school year employment and other cost‑reducing programs
               available to the student. These latter sources of assistance should
       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 23 of 33
               be credited to the child’s share of the educational expense unless
               the court determines that it should credit a portion of any
               scholarships, grants and loans to either or both parents’ share(s)
               of the education expense.


       Child Supp.G. 8 cmt. (b).


[29]   In this case, the court ordered the parties to evenly share in the costs associated

       with Derric’s college expenses that are not covered by his scholarship. The

       court arrived at this conclusion based upon its determination imputing potential

       income to Mother, setting each parents’ income at a roughly equal level. In

       Part A, we concluded that this determination was clearly erroneous.

       Consequently, the underpinning of the court’s post-secondary education

       expenses determination is also clearly erroneous. On remand, we instruct the

       court to enter an order for Derric’s post-secondary education expenses which

       weighs the relative abilities of Mother and Father to contribute to the payment

       of the expenses, taking into consideration the incomes and overall financial

       condition of each of them, as well as the other factors noted above and in the

       Guidelines.


                                                     Conclusion

[30]   For the foregoing reasons, we reverse the trial court’s Amended Decree and

       remand for a recalculation of child support and post-secondary educational

       expenses consistent with this opinion.


[31]   Reversed and remanded.



       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 24 of 33
Vaidik, C.J., concurs.


Bradford, J., dissents with separate opinion.




Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 25 of 33
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Karen B. Salser,                                           April 26, 2017
       Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                  02A03-1606-DR-1380
               v.                                                 Appeal from the Allen Superior
                                                                  Court
       Gregg A. Salser,                                           The Honorable Charles F. Pratt,
       Appellee-Respondent.                                       Judge
                                                                  The Honorable Sherry A. Hartzler,
                                                                  Magistrate
                                                                  Trial Court Cause No.
                                                                  02D08-1412-DR-1616



       Bradford, Judge, dissenting.


[32]   Because I do not believe that the trial court erred in deciding the instant matter,

       I must dissent.

               Where, as here, a trial court enters findings of fact and
               conclusions of law, this Court first determines whether the
               evidence supports the findings. In re Adoption of T.L., 4 N.E.3d
               658, 662 (Ind. 2014). Then, the Court determines whether the
               findings support the judgment. Id. The trial court’s findings of
       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017              Page 26 of 33
               fact and conclusions of law will be set aside only if they are
               clearly erroneous, or, in other words, the record contains no facts
               or inferences to support them. Id. The trial court’s judgment is
               clearly erroneous when “‘it is unsupported by the findings of fact
               and the conclusions of law relying on those findings.’” Id.
               (quoting In re Adoption of T.W., 859 N.E.2d 1215, 1217 (Ind. Ct.
               App. 2006)).


       D.D. v. D.P., 8 N.E.3d 217, 220 (Ind. Ct. App. 2014). Specifically, based on my

       review of the record, I do not believe that the trial court erred in (1) imputing

       income to Mother, (2) excluding the parties’ bonuses from the calculation of the

       parties’ weekly income, or (3) ordering that Mother to pay half of the eldest

       child’s college expenses.


              A. Deference to the Trial Court in Family Law Cases
[33]   It is undisputed that in family law matters, appellate courts grant deference to

       the trial court. See generally, In re Marriage of Richardson, 622 N.E.2d 178, 178

       (Ind. 1993) (expressing a preference “for granting latitude and deference to our

       trial judges in family law matters”). In explaining the rationale for this

       deference, the Indiana Supreme Court has stated the following:


               Appellate deference to the determinations of our trial court
               judges, especially in domestic relations matters, is warranted
               because of their 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.

       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 27 of 33
       Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).


                                 B. Imputing Income to Mother
[34]   Indiana Child Support Guideline 3(A)(3) provides that “[i]f a court finds a

       parent is voluntarily … underemployed without just cause,” it may impute

       potential income to the parent. “A determination of potential income shall be

       made by determining employment potential and probable earnings level based

       on the obligor’s work history, occupational qualifications, prevailing job

       opportunities, and earnings levels in the community.” Ind. Child Support

       Guideline 3(A)(3). Comment (c)(2) to this Guideline provides that

               When a parent has some history of working and is capable of
               entering the work force, but without just cause voluntarily fails or
               refuses to work or to be employed in a capacity in keeping with
               his or her capabilities, such a parent’s potential income shall be
               included in the gross income of that parent. The amount to be
               attributed as potential income in such a case may be the amount
               that the evidence demonstrates he or she was capable of earning
               in the past.… Discretion must be exercised on an individual case basis
               to determine whether under the circumstances there is just cause to
               attribute potential income to a particular unemployed or underemployed
               parent.


       (Emphasis added).


[35]   Review of the record reveals that the trial court heard evidence indicating that

       Mother, a licensed nurse practitioner, has the ability to work full-time but

       simply chooses not to, numerous opportunities are available in Mother’s line of

       work within the community, and Mother would make the same hourly rate


       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 28 of 33
       ($50 per hour) or higher if she were to accept a full-time position. In addition,

       while Mother claims that she does not work full time because her “passion” is

       to be a mother, the parties’ oldest child is away at college and their youngest

       child is thirteen. Also, Mother and Father split joint and physical custody of

       the youngest child “50/50” so the youngest child is only in Mother’s care every

       other week. In light of these facts coupled with the high level of deference we

       grant the trial court in family law matters, I would conclude that the trial court

       did not abuse its discretion in finding that Mother is voluntarily underemployed

       and in imputing income to Mother.


                             C. Exclusion of the Parties’ Bonuses
[36]   Comment b to Indiana Child Support Guideline 3(A)(1) provides that bonuses

       are “includable in the total income approach taken by the Guidelines, but each

       is also very fact sensitive.” Comment b goes on to provide that “[w]hen the

       court determines that it is not appropriate to include irregular income in the

       determination of the child support obligation, the court should express its

       reasons.” Ind. Child Support Guideline 3(A)(1) cmt. b. We have previously

       observed that applicable case law supports the idea that exclusion of bonuses

       “should be based on dependability.” Thompson v. Thompson, 696 N.e.2d 80, 84

       (Ind. Ct. App. 1998). In making this observation, we noted that “[t]he thrust of

       the commentary and related cases is that the trial court’s discretion in excluding

       overtime and bonus income is grounded in a determination that the income is

       not dependable or would place a hardship on a parent to maintain.” Id. We

       also reiterated that in addition to articulating its reasons for excluding bonuses

       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 29 of 33
       from a calculation of a party’s income, the trial court’s reasoning “must indicate

       that the determination was made” in light of the dependability of such

       compensation. Id.


[37]   In this case, the trial court excluded any bonuses received by the parties from

       the determination of the parties’ income. The trial court noted that Father’s

       “first bonus with [his] employer was in the sum of One Thousand Three

       Hundred Dollars ($1,300.00) and will vary from time to time. Mother also

       receives bonuses from time to time.” Appellant’s App. Vol. II, p. 34. For

       instance, Mother’s pay stubs for the latter part of 2015 indicate that Mother had

       received quarterly bonuses totaling $1,998.25. Appellant’s App. Vol. II, pp.

       137-42. In excluding the parties’ bonuses from the calculation of their income,

       the trial court found that while both parties receive occasional bonuses, the

       amount of said bonuses “are uncertain and not predictable.” Appellant’s App.

       Vol. II, p. 34. The trial court’s determination is supported by the record as the

       court heard evidence that while Father has the potential to earn up to

       $27,000.00 per year in bonuses, such bonuses are solely dependent upon sales

       which are undoubtedly impacted by the economy. In fact, in the four months

       preceding the evidentiary hearing, Father had earned only $1,300.00, which is

       far less than one-third of the maximum which Father could potentially earn

       during any given year. Again, in light of these facts coupled with the high level

       of deference we grant the trial court in family law matters, I would conclude

       that the trial court did not abuse its discretion in excluding the parties’ bonuses

       from the calculation of the parties’ income.


       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 30 of 33
                                   D. Derric’s College Expenses
[38]   Indiana Child Support Guideline 8(b) provides that

               The authority of the court to award post-secondary educational
               expenses is derived from [Indiana Code section] 31-16-6-2. It is
               discretionary with the court to award post-secondary educational
               expenses and in what amount. In making such a decision, the
               court should consider post-secondary education to be a group
               effort, and weigh the ability of each parent to contribute to
               payment of the expense, as well as the ability of the student to
               pay a portion of the expense.


       When determining whether or not to award post-secondary educational

       expenses, the court should consider each parent’s income, earning ability,

       financial assets and liabilities. Ind. Child Support Guideline 8(b).

               If the court determines that an award of post-secondary
               educational expenses is appropriate, it should apportion the
               expenses between the parents and the child, taking into
               consideration the incomes and overall financial condition of the
               parents and the child, education gifts, education trust funds, and
               any other education savings program. The court should also take
               into consideration scholarships, grants, student loans, summer
               and school year employment and other cost-reducing programs
               available to the student. These latter sources of assistance should
               be credited to the child’s share of the educational expense unless
               the court determines that it should credit a portion of any
               scholarships, grants and loans to either or both parents’ share(s)
               of the education expense.


       Id.




       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 31 of 33
[39]   Review of the record reveals that in ordering the parties to pay equal shares of

       Derric’s college expenses, the trial court considered Derric’s aptitude and

       scholarships received together with the parties’ financial situations. The cost of

       Derric’s attendance at Purdue University is approximately $23,828.00 per year.

       The trial court found that Derric had received a Navy ROTC scholarship in the

       amount of $10,002.00 per year. Thus, the trial court determined that Derric’s

       scholarship covered his portion of his college expenses.


[40]   The trial court also found that both Father and Mother were capable of

       contributing to Derric’s education. Specifically, the trial court found that in

       light of the incomes applied by the trial court in determining child support,

       including the income imputed to Mother, the parties “shall have an equal share

       of income for purposes of this educational support order.” Appellant’s App.

       Vol. II, p. 37. In reaching this finding, the trial court again noted that Mother

       has an advanced degree and is capable of making an income substantially more

       than in her current part-time employment. (Appellant’s App. Vol. II, p. 37)

       The trial court also noted that the parties managed their debts and assets in such

       a manner in order to have the disposable income and resources available to

       assist Derric with his postsecondary education. (Appellant’s App. Vol. II, p.

       37)


[41]   In Pickett, the trial court ordered the parties to pay an equal portion of their

       daughter’s college expenses which remained after the daughter’s scholarships

       and grants had been applied. 44 N.E.3d at 765. In doing so, the trial court

       determined that the Appellant was voluntarily underemployed and imputed

       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 32 of 33
       income to him. Id. at 765-66. On appeal, we concluded that the trial court did

       not abuse its discretion in finding that Appellant was voluntarily

       underemployed, in imputing income to him, or in ordering him to pay half of

       the remaining balance of his daughter’s college expenses. Id. at 767.


[42]   Similarly, in the instant matter, the trial court heard evidence about the parties’

       financial situations and earning capabilities. The trial court found that Mother

       was voluntarily unemployed and was capable of earning an income that was

       significantly higher than what she was currently earning. The trial court also

       determined that given the way the parties had managed their finances during

       the marriage, the parties did not have any significant debt that would impair

       their ability to pay a portion of Derric’s remaining college expenses. These

       determinations were supported by the evidence presented to the trial court

       during the evidentiary hearing. As such, I again would conclude that, in light

       of these facts coupled with the high level of deference we grant the trial court in

       family law matters, the trial court did not abuse its discretion in ordering the

       parties’ to pay an equal portion of Derric’s remaining college expenses.


                                                E. Conclusion
[43]   Given that I would find that the trial court’s challenged findings and

       conclusions are not clearly erroneous, I would vote to affirm the judgment of

       the trial court.




       Court of Appeals of Indiana | Opinion 02A03-1606-DR-1380 | April 26, 2017   Page 33 of 33
