MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Mar 28 2017, 9:34 am
this Memorandum Decision shall not be
                                                                            CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
court except for the purpose of establishing                                 and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
John L. Kellerman II
Kellerman Law Office
Batesville, IN 47006



                                         IN THE
    COURT OF APPEALS OF INDIANA

Tara Jean Davies,                                      March 28, 2017
Appellant-Petitioner,                                  Court of Appeals Case No.
                                                       24A05-1508-DR-1103
        v.                                             Appeal from the Franklin Circuit
                                                       Court
Guy Albert Pierce Davies,                              The Honorable J. Steven Cox,
Appellee-Respondent.                                   Judge
                                                       Trial Court Cause No.
                                                       24C01-1305-DR-401



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017           Page 1 of 16
                                      Statement of the Case
[1]   Tara Jean Davies (“Mother”) appeals the dissolution court’s final decree, which

      ended her marriage to Guy Albert Pierce Davies (“Father”). Mother presents

      the following issues for our review:

              1.      Whether the dissolution court abused its discretion when it
                      calculated Father’s child support obligation.

              2.      Whether the dissolution court abused its discretion when it
                      did not order Father’s child support obligation to be
                      retroactive.

              3.      Whether the dissolution court abused its discretion when it
                      did not order Father to pay child support by way of an
                      income withholding order.

              4.      Whether the dissolution court abused its discretion when it
                      did not order Father to pay a portion of one of their
                      children’s college expenses.

              5.      Whether the dissolution court erred when it made no
                      provision for either parent to claim the parties’ children as
                      dependents on their tax returns.

              6.      Whether the dissolution court erred when it made no
                      provision for the payment of the children’s uninsured
                      medical expenses.


[2]   We affirm and remand with instructions.




      Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017   Page 2 of 16
                                 Facts and Procedural History
[3]   On February 1, 2002, Father and Mother were married, and they had three

      children together, namely, D.D., G.D., and T.D. On May 13, 2013, Mother

      filed a petition for dissolution of the marriage. On June 11, the dissolution

      court issued a provisional order stating that the parties had agreed that they

      “shall not dissipate any assets or create new debt and shall continue to maintain

      their current debt as exercised for the previous two (2) years” and that Mother

      “is awarded temporary custody of the minor children herein, and no support is

      ordered.” Appellant’s App. at 36.


[4]   The dissolution court held a final hearing on the dissolution petition over the

      course of three days: November 26, 2013; July 1, 2014; and September 2, 2014.

      During those hearings, Father testified that: he was employed “drilling fuel oil

      and natural gas” in Vietnam and comes home for periods of time ranging from

      twenty-two to twenty-six days at a time; he has five children—three with

      Mother and two from a previous marriage; he pays $500 per month in child

      support for the two children from a previous marriage; and he pays “every bill

      that [he is] expected to pay.” Tr. at 5, 191. Mother testified that Father had not

      complied with the provisional order to “pay all of our bills exactly like they had

      been [paid] in the past” and, as a result, Mother had to use approximately

      $11,000 out of a savings account to pay the family’s bills. Id. at 54.




      Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017   Page 3 of 16
[5]   On April 27, 2015, the dissolution court entered the final decree on child

      custody, child support, and parenting time,1 which stated as follows:


               That [Mother] shall have sole custody of the minor children
               herein, [D.D., G.D., and T.D.] [Father] shall be entitled to
               visitation at all times when he shall be on break from his
               employment schedule. Should his break at home[,] according to
               his employment schedule[,] be longer than two consecutive
               weeks, support shall be half of the regular weekly amount for the
               remainder of that break. During this time period, [Mother] shall
               have liberal communication access with the children herein.
               Additionally, should [Father’s] break from his employment
               schedule last more than two consecutive weeks, [Mother] shall
               have alternate weekends and mid-week visitation with the minor
               children.

               The Court further finds that [Father] shall pay support in the
               amount of Four Hundred and Forty-two Dollars ($442.00)
               weekly commencing Friday, April 24, 2015[,] payable through
               the office of the Franklin County Circuit Court Clerk.


      Appellant’s App. at 34-35. Mother filed a motion to correct error, which was

      deemed denied. Mother appealed.


[6]   On February 9, 2017,2 pursuant to Indiana Appellate Rule 37(B), this court

      suspended consideration of the appeal and remanded to the trial court to (1)

      attach to the order a completed child support worksheet, signed by both parties,




      1
       The dissolution court noted that it had “ratified” the parties’ agreed entries regarding the division of the
      marital assets. Appellant’s App. at 34.
      2
        This court had granted Mother several extensions of time to file her brief on appeal due to the parties’
      attempts to settle the issues on appeal. Mother finally filed her appellant’s brief on October 13, 2016.

      Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017               Page 4 of 16
and/or (2) issue written findings articulating the factual circumstances

supporting the child support order. On February 10, the trial court filed, in

open court, its Final Order on Child Support, including the following findings

and conclusions:


        1.     On July, 1, 2014[,] the Petitioner herein submitted her
        child support worksheet as Exhibit #2 in the amount of $442.00
        per week, and;

        2.    Counsel for Respondent had no objection to Petitioner’s
        Exhibit #2, and;

        3.     The Court heard extensive evidence relating to the work
        schedules of the parties, earning capacities, relationships, plans
        for post-secondary education and visitation practices with their
        respective children during the remainder of the hearing of July 1,
        2014, as well as the balance of the hearing which was held on
        September 2, 2014, and;

        4.    The Court found that there were three children born to the
        marriage, and;

        5.    The oldest child was involved in the transition to post-
        secondary education, and;

        6.   The two younger children still visited extensively with the
        Respondent, and;

        7.    That the Respondent was then employed for months at a
        time on an oil rig in the Indian Ocean which required him to be
        absent for extended periods, and;

        8.     That Respondent, when he was local, opted to visit his
        children at a hotel or resort and incurred those expenses rather


Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017   Page 5 of 16
        than maintain a more permanent residence and the associated
        costs, and;

        9.     That the Petitioner, during the balance of the Final
        Hearing offered another child support worksheet marked as
        Exhibit #11, on September 2, 2014[,] in the amount of Five
        Hundred Thirty-nine Dollars ($539.00), which worksheet gave no
        credit for overnights, and;

        10. The Court found that there was a dispute between the
        parties as to which income amount should be utilized for the
        calculation of child support, and;

        11. The Court first considered Respondent’s request for joint
        custody but opted not to grant the request since the requirement
        to keep the Respondent informed as to medical, educational and
        religious decisions would work an undue hardship on the
        Petitioner given the difficulty in communicating with the
        Respondent when he was out of the country, and would,
        therefore, not meet the best interest standard of the children, and;

        12. The Court next considered the worksheets submitted as
        Petitioner’s Exhibit #2 and #11 respectively and found that given
        the extraordinary nature of the visitations which could not be
        reconciled under the Indiana Parenting Time Guidelines given
        the nature of Respondent’s work schedule and cost of
        maintaining a permanent residence even when out of the
        country, and given the fact that the Respondent, in fact, visited
        with the children full time when he was in the country, the Court
        concluded that it was inappropriate to give Respondent no credit
        for parenting time as indicated on Petitioner’s Exhibit #2, and;

        13. The Court next considered Respondent’s testimony
        relating to the expense he incurred while having the children
        when he was in country and how “make-up” time should be
        applied under the Indiana Parenting Time Guidelines, and;


Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017   Page 6 of 16
        14. The Court next considered the effects of the cost of
        visitations when the Respondent was in country as those costs
        related to Transferred Expenses up to 35%, Duplicated Fixed
        Expenses up to 50% and Controlled Expenses when exercising
        his ability to visit and when the applicable, assumed percentages
        of these expenses were applied to the work sheet, depending on
        the range applied by the Court, the Court found that the
        percentages could result in a support amount which was lower
        than the lowest amount sought by Petitioner of $442.00 per week
        as stated in her original worksheet which she submitted on July
        1, 2014, and;

        15. The Court found that it was in the children’s best interest
        that they be given as much time with Respondent as his work
        schedule would allow even though it found that it was not in
        their best interest that custody be shared under these facts, and;

        16. That given the extraordinary facts before the Court as to
        the parties[’] ability to support and their ability to continue the
        development of meaningful relationships with their children, the
        Court found that it was necessary to deviate from both the
        Indiana Parenting Time Guidelines and The Indiana Child
        Support Guidelines, and;

        17. That[,] based on Respondent’s skill set[,] his only ability to
        earn at his current rate of pay was to continue to work out of the
        country which necessarily perpetuated his intermittent absence
        from his children.

        18. Based on the foregoing analysis, the Court concluded that
        the better measure of support and that which was best reflective
        of the unusual facts before the Court was the amount reflected in
        Petitioner’s Exhibit #2 since it was admitted without objection
        and was higher than the amount that could potentially have been
        reached by the Court if it had applied the percentages relating to
        Transferred and Duplicated Fixed Expenses to the worksheet
        amount represented in Petitioner’s Exhibit #11. While the Court

Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017   Page 7 of 16
         was mindful that the parenting time was not shared under a joint
         custody order, that arrangement was not ordered for practical
         reasons. Nonetheless, the Court’s intention was that the parties
         share the physical custody with each other as equally as their
         respective schedules would allow. The Court therefore ordered
         that the support obligation would not terminate when
         Respondent exercised visitation but would, rather, be decreased
         by half when he physically had the children which was done in
         recognition of the custodial parent’s Controlled Expenses.

         The foregoing analysis and discussion was the basis for the
         Court’s deviation from the Indiana Support Guidelines as well as
         the Indiana Parenting Time Guidelines in the above-referenced
         Cause. Petitioner’s Exhibits #2 and #11 are before the Indiana
         Court of Appeals as part of the Record in the list of Exhibits in
         Cause Number 24A05-1508-DR-1103. Pursuant to the Order
         dated February 9, 2017, from the Indiana Court of Appeals in
         Cause Number 24A05-1508-DR-1103, the Court incorporates the
         above analysis as its reason for originally deviating from the
         Indiana Support Guidelines and the Indiana Parenting Time
         Guideline and incorporates the same as its rationale for the
         current Final Order on Child Support.

         IT IS THEREFORE ORDERED, ADJUDGED AND
         DECREED that support in this matter shall be and is hereby set
         in the amount of Four Hundred Forty-two Dollars ($442.00) per
         week commencing the 24th day of April, 2015.


February 10, 2017, Order at 1-3. Mother timely filed a supplemental

Appellant’s Brief to address the trial court’s findings and conclusions. 3




3
  Father was given the option to file a brief in response to the dissolution court’s new order and Mother’s
brief, but he chose not to do so.

Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017             Page 8 of 16
                                    Discussion and Decision
                                           Standard of Review

[7]   Initially, we note that Father has not filed an appellee’s brief. Accordingly, we

      will reverse the trial court’s judgment if the appellant presents a case of prima

      facie error. Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct. App. 2010). Prima

      facie error is error at first sight, on first appearance, or on the face of it. Id.

      Where an appellant does not meet this burden, we will affirm. Id.


[8]   The trial court here entered findings and conclusions sua sponte to accompany

      its dissolution decree. Accordingly, the specific factual findings control only the

      issues that they cover, while a general judgment standard applies to issues upon

      which there are no findings. Fetters v. Fetters, 26 N.E.3d 1016, 1019 (Ind. Ct.

      App. 2015), trans. denied. Not every finding needs to be correct, and even if one

      or more findings are clearly erroneous, we may affirm the judgment if it is

      supported by other findings or is otherwise supported by the record. Id. We

      may affirm a general judgment with sua sponte findings upon any legal theory

      supported by the evidence introduced at trial. Id. at 1019-20. Sua sponte

      findings control as to the issues upon which the court has found, but do not

      otherwise affect our general judgment standard of review, and we may look

      both to other findings and beyond the findings to the evidence of record to

      determine if the result is against the facts and circumstances before the court.

      Id. at 1020.




      Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017   Page 9 of 16
                                        Issue One: Child Support

[9]    Mother first contends that the dissolution court abused its discretion when it

       calculated Father’s child support obligation. A trial court’s calculation of child

       support is presumptively valid. Young v. Young, 891 N.E.2d 1045, 1047 (Ind.

       2008). We will reverse a trial court’s decision in child support matters only if it

       is clearly erroneous or contrary to law. Id. (citing Ind. Trial Rule 52(A)). A

       decision is clearly erroneous if it is clearly against the logic and effect of the

       facts and circumstances that were before the trial court. Id.


[10]   Mother maintains that there was “no need to deviate from the [Child Support]

       Guidelines” to achieve figures comparable to those arrived at by the Court

       selecting the amount that seemed “‘the better measure of support.’”

       Appellant’s Br. at 7 (quoting February 10 Order). And Mother avers that

       “[n]othing in [the dissolution court’s] analysis directly addresses the factors

       contained in [Indiana Code Section] 31-16-6-1[,]” which provides in relevant

       part as follows:


               (a) In an action for dissolution of marriage . . . , the court may
                   order either parent or both parents to pay any amount
                   reasonable for support of a child, without regard to marital
                   misconduct, after considering all relevant factors, including:

                       (1) the financial resources of the custodial parent;

                       (2) the standard of living the child would have
                       enjoyed if:

                               (A) the marriage had not been
                               dissolved[.]
       Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017   Page 10 of 16
[11]   We do not address the merits of Mother’s contentions on this issue. In

       calculating Father’s child support obligation, the dissolution court adopted the

       amount indicated in the child support worksheet Mother submitted, without

       objection, as Exhibit 2 at the final hearing. As such, any error was invited, and

       Mother cannot now complain. Balicki v. Balicki, 837 N.E.2d 532, 541 (Ind. Ct.

       App. 2005) (reiterating doctrine of invited error is grounded in estoppel and

       precludes a party from taking advantage of an error that she commits, invites,

       or which is the natural consequence of her own neglect or misconduct), trans.

       denied.; see also Laux v. Ferry, 34 N.E.3d 690, 695 (Ind. Ct. App. 2015) (holding

       father invited alleged error in calculating child support where dissolution court

       based amount on father’s child support worksheet). 4


                                  Issue Two: Child Support Retroactivity

[12]   Mother contends that the dissolution court abused its discretion when it did not

       make the child support order retroactive. Mother maintains that Father did not

       comply with the dissolution court’s provisional order that he continue to pay

       the family’s bills as he had done prior to the parties’ separation. Accordingly,

       Mother asserts that she had to pay more than her share of the bills while the




       4
         For the first time in her supplemental brief, Mother describes as “problematic” the provision for a reduction
       in Father’s child support obligation when Father exercises parenting time for longer than two consecutive
       weeks. Appellant’s Supp. Br. at 7-8. Because that provision was included in the dissolution court’s April 27,
       2015, child support order and was not amended in the court’s February 10, 2017, order, Mother could have
       raised her objection to the provision in her original Appellant’s Brief filed October 13, 2016. Having failed to
       do so, we hold that Mother has waived that issue for our review.

       Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017             Page 11 of 16
       dissolution was pending, and she sought retroactive child support from Father

       to make up the difference.


[13]   It is well established that “the trial court has the discretionary power to make a

       modification for child support relate back to the date the petition to modify is

       filed or any date thereafter chosen by the trial court.” Laux, 34 N.E.3d at 695

       (quoting Hatmaker v. Hatmaker, 998 N.E.2d 758, 763 (Ind. Ct. App. 2013), trans.

       denied). Here, contrary to Mother’s assertion, Father testified that he paid

       “every bill that [he was] expected to pay.” Tr. at 191. The dissolution court

       was entitled to credit that testimony over Mother’s testimony. In any event,

       when they separated, the parties agreed that Father would not pay provisional

       child support. Mother has not demonstrated that the dissolution court abused

       its discretion when it did not order retroactive child support.


                               Issue Three: Income Withholding Order

[14]   Mother contends that the dissolution court erred when it did not order Father’s

       child support obligation to be paid by means of an income withholding order.

       Indiana Code Section 31-16-15-0.5 (2017) provides in relevant part as follows:

               (a) Except as provided in subsection (c), in any proceeding in
               which a court has ordered, modified, or enforced periodic
               payments of child support, the court shall include a provision
               ordering that child support payments be immediately withheld
               from the income of the obligor in an amount necessary to comply
               with the support order, including amounts for current child
               support obligations, child support arrearage, medical support,
               interest, and fees.



       Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017   Page 12 of 16
[15]   We agree with Mother that the record does not indicate that a stay of an

       income withholding order under subsection (c) of the statute applies here. The

       dissolution court erred when it did not order that Father fulfill his child support

       obligation by way of an income withholding order. We remand with

       instructions to the dissolution court to issue such an order.


                                      Issue Four: College Expenses

[16]   Mother contends that the dissolution court abused its discretion when it did not

       order Father to pay for college expenses for D.D. As our supreme court has

       explained,

               Indiana Code Section 31-16-6-2 gives guidance regarding
               contribution toward post-secondary educational expenses, listing
               certain factors to take into account, such as “the child’s aptitude
               and ability,” “the child’s reasonable ability to contribute to
               educational expenses,” and “the ability of each parent to meet
               these expenses,” among other things.[] Furthermore, Child
               Support Guideline 8(b) lists expenses that may be included
               within a post-secondary educational expense order, such as
               tuition, books, lab fees, supplies, student activity fees, room and
               board under certain circumstances, transportation, car insurance,
               clothing, entertainment, and incidental expenses. This guideline
               also explicitly states that “[i]t is discretionary with the court to
               award post-secondary educational expenses and in what
               amount.” Child Supp. G. 8(b). It continues that the court
               should “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.


       Hirsch v. Oliver, 970 N.E.2d 651, 660-61 (Ind. 2012).



       Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017   Page 13 of 16
[17]   In support of her contention on this issue, Mother cites the following evidence:


               In this case, the parties’ oldest son was 16 years old when the
               Dissolution was filed and graduated high school in 2014 and
               began attending college that fall. (Tr. [at] 199). Mother hoped
               that his education would be free under the VA ([t]r. [at] 39) but
               father confirmed that Mother had incurred a loan for the son’s
               college education. (Tr. [at] 199). Unfortunately, no evidence was
               presented as to the amount of the expenses. This issue was raised in
               the Motion to Correct Error.


       Appellant’s Br. at 15 (emphasis added). Because Mother did not present any

       evidence regarding the amount of expenses she had incurred for D.D.’s college

       loans and the like, any error was invited and Mother cannot now complain.

       Balicki, 837 N.E.2d at 541. In any event, Mother has not demonstrated that the

       dissolution court abused its discretion when it did not order Father to share in

       the college expenses.


                                         Issue Five: Tax Returns

[18]   Mother contends that the dissolution court erred when it made no provision for

       the parties to claim their children as dependents on their tax returns. Mother is

       correct that Indiana Code Section 31-16-6-1.5 provides that “a court shall

       specify in a child support order which parent of a child may claim the child as a

       dependent for purposes of federal and state taxes.” We remand to the

       dissolution court to amend its child support order to comply with this statute.




       Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017   Page 14 of 16
                                  Issue Six: Uninsured Medical Expenses

[19]   Finally, Mother contends that the dissolution court erred when it did not

       provide for the allocation of the children’s uninsured medical expenses between

       the parties. Mother maintains that those expenses “should be allocated

       according to the Child Support Guidelines.” Appellant’s Br. at 14. But, while

       Mother states that Child Support Guideline 7 “requires that a calculation of

       Extraordinary health expenses be made[,]” she does not set out in her brief

       what the calculation is or what it would require Father to pay under the facts

       and circumstances here.5 Id. Neither does Mother direct us to any case law in

       support of her contention on this issue. Further, Mother refers to “proceedings

       [that occurred] after the initiation of this appeal” which “resulted in an order

       requiring both parents to maintain health insurance on the children, if available

       at reasonable cost[.]”6 Id.


[20]   Mother’s argument on this issue is difficult to discern. Regardless, Child

       Support Guideline 7 provides in relevant part that extraordinary health care

       expenses “are those uninsured expenses which are in excess of” 6% of the child

       support amount, which is designated to pay for health care. And “[c]alculation




       5
        In her motion to correct error, Mother asked the dissolution court to allocate the children’s uninsured
       medical expenses between the parties “according to the attached CSOW.” Appellant’s App. at 39. But
       Mother has not included any attachments to the motion to correct error in her appendix on appeal.
       6
         We note that this court has had jurisdiction over this matter since the notice of completion of the Clerk’s
       record was filed on September 11, 2015. Our supreme court has recognized that where the subject of the
       appeal is “‘entirely independent of the issues to be tried[,]’” subsequent trial court action does not interfere
       with the jurisdiction of the appellate court. Hickman v. Irwin Union Bank (In re Hickman), 811 N.E.2d 843, 848
       (Ind. Ct. App. 2004) (quoting Bradley v. State, 649 N.E.2d 100, 106 (Ind. 1995)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017             Page 15 of 16
       of the apportionment of the health care expense obligation is a matter separate

       from the determination of the weekly child support obligation.” Id. We

       remand to the dissolution court to determine an appropriate amount for Father

       to pay with respect to the children’s uninsured medical expenses.


[21]   In sum, we affirm the dissolution court, but remand with instructions that the

       court: issue an income withholding order; specify which parent may claim

       which child as a dependent for income tax purposes; and assess Father’s

       responsibility for the children’s uninsured medical expenses.


[22]   Affirmed and remanded with instructions.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 24A05-1508-DR-1103 | March 28, 2017   Page 16 of 16
