MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Oct 27 2017, 8:39 am
regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court


estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Irving Marshall Pinkus                                   Katherine A. Harmon
Pinkus & Pinkus                                          Jared S. Sunday
Indianapolis, Indiana                                    Mallor Grodner LLP
                                                         Indianapolis, Indiana
Christopher Price
Certified Legal Intern
Pinkus & Pinkus
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lisa Haynes Whorley,                                     October 27, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         29A05-1611-DR-2637
        v.                                               Appeal from the Hamilton
                                                         Superior Court
John F. Whorley, Jr.,                                    The Honorable Daniel J. Pfleging,
Appellee-Respondent.                                     Special Judge
                                                         Trial Court Cause No.
                                                         29D02-1406-DR-5652



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017         Page 1 of 42
                               Case Summary and Issues
[1]   Lisa Haynes Whorley (“Mother”) and John F. Whorley, Jr. (“Father”) were

      married in 2003 and, after having two children together, separated in 2014. The

      trial court held a dissolution hearing over eight days in 2016 and issued

      Findings of Fact and Conclusions of Law on Final Dissolution on November 9,

      2016. Mother appeals the trial court’s dissolution decree, raising the following

      consolidated issues for our review:


              1) Whether the trial court erred in awarding the parties joint legal
              custody of the children and naming Father the ultimate decision-
              maker;


              2) Whether the trial court erred in determining the opportunity
              for additional parenting time need only be offered to Mother
              when Father or Father’s housekeeper was unavailable to care for
              the children for a period that included an overnight;


              3) Whether the trial court erred in its determination of Father’s
              gross weekly income for child support purposes;


              4) Whether the trial court properly valued certain items of
              marital property; and


              5) Whether the trial court erred in unequally dividing the marital
              estate, awarding 57.5% to Father and 42.5% to Mother.


[2]   With respect to issues concerning the parties’ children, we conclude the trial

      court did not err in awarding joint legal custody of the children to the parties

      while designating Father as the ultimate decision-maker in the event of an

      Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 2 of 42
      impasse or in determining the opportunity for additional parenting time need

      only be extended if a party needs child care overnight. The trial court did err,

      however, in determining the opportunity for additional parenting time need not

      be extended to Mother if Father’s housekeeper is available to care for the

      children because she is not a “household family member.” The trial court also

      erred in failing to account for Father’s irregular income in the child support

      calculation.


[3]   With respect to issues concerning the marital estate, we conclude the trial court

      did not err in valuing certain items of marital property. However, we conclude

      there is no rational basis set forth in the trial court’s order supporting an

      unequal division of marital property because the trial court clearly erred in its

      findings regarding one of the relevant statutory factors and we are unable to

      infer from the trial court’s findings that it considered two additional factors.


[4]   We therefore affirm in part, reverse in part, and remand this case to the trial

      court.



                            Facts and Procedural History
[5]   Mother and Father met in Indianapolis in 1996 when they both worked for the

      same employer. In 1998, Father was offered a promotion that required he

      relocate to Las Vegas, Nevada. At Father’s request, Mother left her

      employment and moved to Las Vegas to be with him. Mother made a down

      payment on a house the parties owned and lived in together for a couple of


      Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 3 of 42
      years. The parties eventually sold that house; Mother moved into an apartment

      and Father bought a new house, although the two were engaged. Marisol

      Ortega began providing housekeeping services for Father at his home in 2002.


[6]   The parties married in 2003. By this time, Father had approximately

      $6,000,000 in a Merrill Lynch account. The parties had their first child in 2004.

      Ortega then began providing nanny services for the Whorleys as well as

      housekeeping. Also in 2004, the parties purchased farmland in Murfreesboro,

      Tennessee, across the road from the farm where Father was born, for

      $1,000,000. Mother and Father moved back to Indiana in 2005; Ortega came

      with them to be a live-in housekeeper and nanny, a position she still retains in

      Father’s household. The parties’ second child was born in 2006. The children

      have attended a private school in Indianapolis since pre-school.


[7]   Mother was a Certified Public Accountant and was employed until the parties’

      first child was born. When she left Indiana, she was making approximately

      $90,000 per year. She made $40,000 per year at her last job in Las Vegas. Once

      the parties’ children were born, Mother was a stay-at-home parent for ten years

      until these dissolution proceedings began. She did not keep her CPA license

      current during this time. By the final hearing, Mother was working as a

      substitute at the children’s school. Throughout the parties’ relationship, Mother

      suffered from alcoholism. Father was unaware of her illness until October

      2012, at which time Mother checked into an outpatient treatment program with

      Father’s knowledge and support. Mother has been sober since October 2012



      Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 4 of 42
      and has taken a professionally monitored home breathalyzer test twice a day

      since August 2013.


[8]   After returning to Indiana, Father retired from the employment that had taken

      him to Las Vegas. He was involved with several different endeavors after his

      retirement in 2007. In 2008, the parties gave $400,000 to Oak Tree Associates,

      LLC, a real estate investment company in which Father’s former boss, James

      Lintzenich, was the primary partner. The money was given pursuant to a

      Promissory Note between Oak Tree and the Whorleys with a promise of

      repayment with interest by August 15, 2012. Father testified that the money

      was not repaid by that date, nor has any money been received since. In fact,

      Oak Tree no longer exists as a corporate entity. In 2012, Father started Core

      Principle, a company “intended to impact college student performance through

      increasing class attendance using GPS fencing technology . . . .” Transcript,

      Volume V at 145. Father was the sole owner of the company. Mother initially

      assisted with accounting and payroll services and was the company’s CFO for a

      time. In 2014, the parties invested $300,000 in Core Principle from a margin

      credit line against a joint account. Lintzenich loaned Core Principle $400,000

      in late 2014/early 2015 pursuant to a convertible note. Mother insisted this

      money was actually repayment for the parties’ earlier loan to Oak Tree but

      Father categorically denied that was the case. Father invested an additional

      $195,000 over the last half of 2015 out of his pre-dissolution disbursement from

      one of the parties’ joint accounts. Father testified that because of the

      uncertainty surrounding the business as an asset subject to division in the


      Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 5 of 42
       divorce, he was unable to secure additional outside investments and he closed

       the company in early 2016. In 2015, Father returned to employment with his

       original employer.


[9]    The parties separated in 2014. A provisional agreement in 2015 provided the

       parties would share joint legal and physical custody of the children, with the

       parties splitting parenting time equally. The parties adopted the Indiana

       Parenting Time Guidelines and made provisions regarding opportunities for

       additional parenting time if a parent required child care for two or more hours.

       The trial court later amended this provision to require the opportunity for

       additional parenting time to be extended only if child care was needed for three

       or more hours “by any individual other than someone who is defined as a

       family or household member as defined in Shelton v. Shelton, 840 N.E.2d 835

       (Ind. 2006).” Appellee’s Appendix, Volume 2 at 50. Father interpreted this to

       mean if Ortega could be with the children, Mother need not be offered

       additional parenting time. Also, as part of the provisional agreement, each

       party received a pre-dissolution distribution of $1,000,000 from their joint

       Fidelity account.


[10]   The trial court heard testimony and received 114 exhibits into evidence over

       eight days in February, July, and August of 2016. After the first four days of

       hearings in February, the trial court dissolved the marriage of the parties and

       bifurcated the remaining issues. On November 9, 2016, the trial court issued its

       Findings of Fact and Conclusions of Law on Final Dissolution addressing

       issues of custody, parenting time, and child support, as well as the value of

       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 6 of 42
certain marital assets1 and the division of the marital estate. Relevant to the

issues presented on appeal, the trial court concluded:


            10. Father, as the party seeking other than an equal distribution
            of the property, has the burden of presenting relevant evidence to
            rebut the presumption that an equal division of the marital
            property between the parties is just and reasonable and has done
            so pursuant to the findings of the Court.


            11. The Court further finds that Father be awarded a larger
            percentage of the assets based upon the evidence in support of the
            contribution of Father to the acquisition of the property,
            regardless of whether the contribution was income producing, the
            extent to which the property was acquired by Father prior to the
            marriage or through inheritance or gift, and the dissipation of the
            marital estate due to Mother’s alcohol treatment programs and
            over-employment of the children’s nanny during the marriage, all
            in compliance with Ind. Code § 31-15-7-5.


            ***


            15. The best interests of the children are served by the parents’
            continual sharing of joint physical custody.


            16. The best interest[s] of the minor children are served by the
            parents’ sharing of joint legal custody, with Father having the
            ultimate decision making authority if a dispute arises. Both
            parties are ordered to not withhold agreement on legal decisions
            unreasonably.




1
    The parties stipulated to the value of several assets prior to trial.


Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 7 of 42
               17. The parents shall continue to share equal parenting time with
               the minor children with a week-on week[-]off schedule. Holidays
               and special days shall be pursuant to the Indiana Parenting Time
               Guidelines, with Father designated as the custodial parent.


               18. Father should pay support to Mother in the amount of
               $622.12 per week through the Indiana Child Support Collection
               Unit, pursuant to Court’s Exhibit B, the attached Child Support
               Obligation Worksheet [finding Father’s weekly gross income to
               be $7,848.27].


       Appealed Order at 23-24. Mother now appeals certain provisions of the trial

       court’s order.



                                  Discussion and Decision
                                      I. Standard of Review
[11]   The parties requested the trial court enter findings of fact and conclusions

       thereon pursuant to Trial Rule 52(A). We therefore apply the following two-

       tier standard of review: we first determine whether the evidence supports the

       findings of fact and then determine whether the findings of fact support the

       judgment. Troyer v. Troyer, 987 N.E.2d 1130, 1134 (Ind. Ct. App. 2013). We

       will set aside findings if they are clearly erroneous, which occurs only when the

       record contains no facts to support them either directly or by inference.

       Campbell v. Campbell, 993 N.E.2d 205, 209 (Ind. Ct. App. 2013), trans. denied. A

       judgment is clearly erroneous if it applies the wrong legal standard to properly

       found facts. Id. To determine whether the findings or judgment are clearly


       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 8 of 42
       erroneous, we consider only the evidence favorable to the judgment and all

       reasonable inferences therefrom, and we do not reweigh the evidence or assess

       witness credibility. Granzow v. Granzow, 855 N.E.2d 680, 683 (Ind. Ct. App.

       2006).


                                          II. Child Custody
[12]   The trial court made the following findings about custody of the parties’

       children:


                20. Both parties underwent psychological testing . . . . [The
                doctor] did not see anything in the psychological testing which
                would prevent either party from being able to appropriately
                parent the children.


                21. Certain actions by both parties have not been in the best
                interest of the minor children . . . .


                22. Mother struggled with alcoholism throughout the years until
                attending an outpatient program at Fairbanks in 2012.


                23. Mother has been sober since October 11, 2012 as confirmed
                by her twice daily testing using the SoberLink device.


                24. Father refuses to accept Mother’s recovery.


                25. Father wishes to have the children evaluated to determine if
                Mother’s drinking alcohol during pregnancy had a negative effect
                on the children’s health or contributed towards their medical
                conditions. Mother is adamantly opposed to this occurring. The
                Court refuses to order such an evaluation.


       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 9 of 42
               26. The children have been counseling with Dr. Dalton for over
               two (2) years.


               27. Dr. Dalton . . . testified that the children still need
               counseling. . . . The Doctor believed the parties were incapable of
               co-parenting at this time.


               28. Father has requested the parties share physical custody of the
               children and that he receive sole legal custody. Mother has
               requested she be granted sole physical custody and that the
               parties share legal custody, with her being the ultimate decision
               maker.


               29. The Court hereby finds that it is in the best interest of the
               minor children that the parents continue to share joint physical
               custody.


               30. The Court hereby further finds that it is in the best interest of
               the minor children that the parents share joint legal custody, with
               Father having the ultimate decision making authority if a dispute
               arises. Both parties are ordered to not withhold agreement on
               legal decisions (regarding education, health care, and the
               religious upbringing of the children) unreasonably.


       Appealed Order at 4-5.


[13]   It is somewhat difficult to discern Mother’s true argument regarding the trial

       court’s custody decision. She argues the trial court erred in awarding joint legal

       custody without considering all the relevant factors, referencing disharmony

       and contentiousness between the parties that “all but guarantee[s] the inability

       of the parties to successfully co-parent.” Brief of Appellant at 22. That

       argument would make it seem she does not believe the trial court should have
       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 10 of 42
       awarded joint legal custody. Yet, she requested joint legal custody before the

       trial court. She also argues the trial court erred in awarding Father “de facto

       sole legal custody” by making him the ultimate decision-making authority in

       case of a dispute, but that is essentially the result she sought in the trial court,

       albeit in her favor. Id. at 19. She requests a reversal of the trial court’s order,

       but, because of her inconsistent positions, it is unclear what result she is

       ultimately advocating. Therefore, we will simply review the trial court’s

       decision to grant joint legal custody to determine if it is supported by the law

       and the evidence.


[14]   A trial court may award joint legal custody of a child if the court finds that such

       an award would be in the best interest of the child. Ind. Code § 31-17-2-13.

       The court is to consider as “a matter of primary, but not determinative,

       importance” that the parents have agreed to an award of joint custody. Ind.

       Code § 31-17-2-15. The court is also to consider:


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


               (2) whether the persons awarded joint custody are willing and
               able to communicate and cooperate in advancing the child’s
               welfare;


               (3) the wishes of the child, with more consideration given to the
               child’s wishes if the child is at least fourteen (14) years of age;


               (4) whether the child has established a close and beneficial
               relationship with both of the persons awarded joint custody;

       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 11 of 42
               (5) whether the persons awarded joint custody:
                     (A) live in close proximity to each other; and
                     (B) plan to continue to do so; and


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


[15]   Id. The trial court acknowledged this statutory authority regarding the award of

       joint custody in its order. See Appealed Order at 3-4, ¶ 18. Mother contends

       the trial court erred in awarding joint custody with Father as the final decision-

       making authority because it did not consider all the relevant factors.

       Specifically, Mother contends the trial court erred in “placing so heavy an

       emphasis on Mother’s past illness . . . as a basis for depriving her of legal

       custody over her children” while not considering “Father’s present day

       suitability and fitness as a parent.” Br. of Appellant at 20-21.


[16]   With respect to custody determinations, we presume the trial court reached the

       correct result and we review its decision for an abuse of discretion. Periquet-

       Febres v. Febres, 659 N.E.2d 602, 605 (Ind. Ct. App. 1995), trans. denied.

       Although the ability to cooperate is a prime consideration in an award of joint

       custody, the statute also states agreement to joint custody is of primary but not

       determinative importance. Therefore, an order of joint custody may be made

       even over the objections of one of the parents, although “a more careful

       scrutiny of evidence is necessary.” Walker v. Walker, 539 N.E.2d 509, 513 (Ind.

       Ct. App. 1989). Here, although Mother objects now, she did not object to joint

       legal custody with ultimate decision-making authority in one parent in the trial


       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 12 of 42
       court; to the contrary, she requested that basic arrangement in the trial court,

       with herself as the ultimate decision-maker. In fact, it was Father who

       advocated for sole legal custody in the trial court. Nonetheless, after

       thoroughly reviewing the record, we do not believe the arrangement the trial

       court ordered is clearly erroneous.


[17]   We disagree with Mother that the trial court placed a heavy emphasis on her

       alcoholism. The trial court mentioned Mother’s illness, acknowledged her four

       years of sobriety, admonished Father for his failure to do the same, and refused

       to indulge Father’s request to subject the children to unwarranted medical

       testing. The trial court’s findings in this respect actually acknowledge Mother’s

       progress and current ability to appropriately and safely parent the children. We

       further disagree with Mother that the trial court did not appropriately consider

       both parties’ fitness and suitability as parents. The trial court acknowledged

       both Mother’s and Father’s shortcomings in dealing with the children and also

       noted testimony from a doctor who had conducted psychological testing on the

       parties that he saw nothing to indicate either parent would be unable to

       appropriately parent the children. Mother’s arguments about Father’s

       “misconduct,” see, e.g., Br. of Appellant at 21, are essentially requests that we

       reweigh the evidence and find the balance in her favor. This we cannot do. See

       Lindquist v. Lindquist, 999 N.E.2d 907, 911 (Ind. Ct. App. 2013). Although the

       trial court did not make specific findings about the relationship between each

       parent and the children, the proximity within which the parties live, or the

       nature of the home environment each parent provides, it is clear from the


       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 13 of 42
       testimony that these factors are easily satisfied in favor of joint custody. The

       sticking point is the parties’ willingness and ability to communicate and

       cooperate in parenting their children.


[18]   Mother and Father provisionally agreed to joint legal and physical custody and

       that was the arrangement they operated under for over two years. Certainly

       there is ample evidence in the record that the parties had disagreements and

       arguments between themselves and that they were unnecessarily entrenched

       and petty about parenting time, trying to ensure that neither of them received

       even a minute more parenting time than the other and refusing to accommodate

       each other in changing schedules or facilitating activities on each other’s time.

       The children’s counselor did not recommend joint custody. This evidence does

       cast some doubt on the parties’ ability to effectively make joint decisions

       regarding the children’s day-to-day activities. And yet, there is no evidence that

       the parties have fundamental differences in their philosophies of child rearing

       and education, their religious beliefs, or their lifestyles. See Walker, 539 N.E.2d

       at 513 (holding evidence supported trial court’s determination that joint custody

       was in child’s best interest over mother’s objection because there was no

       evidence that “child rearing [had become] a battleground”). To award full joint

       legal custody would be to impose an untenable situation on the parties and

       more importantly, on the children. But to award sole legal custody to one

       parent in this situation would be to reward one parent and punish the other

       when neither has demonstrated a greater inclination for cooperation and




       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 14 of 42
       compromise. As the Walker court noted with approval, a joint custody

       arrangement


               does not translate into a requirement that the parents have an
               amicable relationship. Although such a positive relationship is
               preferable, a successful joint custody arrangement requires only
               that the parents be able to isolate their personal conflicts from
               their roles as parents and that the children be spared whatever
               resentments and rancor the parents may harbor. Moreover, the
               potential for cooperation should not be assessed in the
               “emotional heat” of the divorce.


               If the parents outside of the divorce setting, have each
               demonstrated that they are reasonable and are willing to give
               priority to the best interest of their child, then the judge need only
               determine if the parents can separate and put aside any conflicts
               between them to cooperate for the benefit of their child. The
               judge must look for the parents’ ability to cooperate and if the
               potential exists, encourage its activation by instructing the
               parents on what is expected of them.


       Id. at 512 (quoting Beck v. Beck, 432 A.2d 63, 71-72 (N.J. 1981)).


[19]   The trial court found a joint custody arrangement was in the children’s best

       interest and encouraged Mother and Father to be reasonable in their joint

       decision-making efforts. As the trial court awarded joint physical custody with

       a true 50/50 split of parenting time—a finding Mother does not appeal—an

       award of joint legal custody makes a certain amount of logistical sense. But

       acknowledging the parties have at times acted less than admirably in dealing

       with each other with respect to the children, the trial court also included a

       failsafe so decisions do not get held up indefinitely. We cannot know whether

       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 15 of 42
       this arrangement will ultimately work, and we add our own admonition to the

       trial court’s: it will only work if both parties try to make it work. The parties

       have been given a valuable chance to be equally involved in their children’s

       lives and must each act reasonably in making decisions in the children’s best

       interest. Father should not interpret his “ultimate decision-making authority”

       as a license to ignore Mother’s input. Nonetheless, the trial court, which

       interacted with the parties firsthand over several months, believed joint legal

       custody was the best arrangement for this family. See Best v. Best, 941 N.E.2d

       499, 502 (Ind. 2011) (because trial court judges have direct interactions with the

       parties over an extended period of time, they “are in a superior position to

       ascertain information and apply common sense, particularly in the

       determination of the best interests of the involved children”). The evidence

       supports the trial court’s decision that an award of a joint custody in the interest

       of promoting collaboration between Mother and Father is in the children’s best

       interest. We find no abuse of discretion in the trial court’s decision.


                                        III. Parenting Time
[20]   The trial court made the following finding regarding the opportunity for

       additional parenting time:


               Going forward, the opportunity for additional parenting time
               shall only apply to times when either party requires care for the
               children [by] other than a family or household member for a period of
               time that includes an overnight. This modification will alleviate
               Mother’s perceived need to investigate whether or not she is
               being offered the time she believes she is entitled to receive. Ms.


       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 16 of 42
               Ortega is deemed to be a household member for purposes of this
               IPTG provision. See Ind. Parenting Time G., Sec. I. (C)(3).


       Appealed Order at 6, ¶ 36 (emphasis added). The relevant Parenting Time

       Guideline states:


               When it becomes necessary that a child be cared for by a person
               other than a parent or a responsible household family member, the
               parent needing child care shall first offer the other parent the
               opportunity for additional parenting time, if providing the child
               care by the other parent is practical considering the time available
               and the distance between residences.


       Ind. Parenting Time Guideline I(C)(3) (emphasis added). The commentary to

       this guideline provides: “[t]he household family member is defined as an adult

       person residing in the household, who is related to the child by blood, marriage or

       adoption.” (Emphasis added.) Providing opportunities for additional parenting

       time “promotes the concept that a child receives greater benefit from being with

       a parent rather than a child care provider who is not a household family

       member.” Id. “It is presumed that this rule applies in all cases which the

       guidelines cover; however, the parties or a trial court may, within discretion,

       determine that a deviation is necessary or appropriate. Any such deviation

       must be accompanied by a written explanation.” Id.


[21]   Mother argues the trial court erred in two respects: one, in stating the

       opportunity for additional parenting time will only arise if a “family or

       household member” is unavailable to care for the children; and two, in

       modifying the length of time which invokes the opportunity.

       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 17 of 42
[22]   As to Mother’s first contention, we agree the trial court erred in concluding

       Mother would not need to be offered the opportunity for additional parenting

       time if Ortega were available to care for the children. First, the trial court did

       not apply the plain language of the guideline. The guideline states the

       opportunity for additional parenting time arises when the child must be cared

       for by someone other than a parent or a responsible household family member. The

       trial court’s finding states the opportunity for additional parenting time will

       only be offered to Mother when the children require care by someone other

       than a “family or household member.” Appealed Order at 6, ¶ 36. The

       language used by the trial court does not appear in the guideline and clearly

       alters the guideline’s intended meaning. Second, the trial court used that

       misquoted language to find that Ortega – Father’s live-in, full-time housekeeper

       and nanny – is a “household member” and therefore a suitable caregiver for this

       purpose. The commentary to the guideline makes clear that the “responsible

       household family member” must both live in the household and be related to

       the children. By misquoting the guideline to create two separate categories of

       “family member” and “household member,” and then using that misquoted

       language to declare Ortega to be a qualified person for this purpose, the trial

       court effectively denied Mother the opportunity to ever be offered additional

       parenting time. As this court has previously stated, “Relegating [the non-

       custodial parent’s] interest in additional parenting time to third-in-line abrogates

       the goal of the Indiana Parenting Time Guidelines—promoting the best

       interests of the child through frequent, meaningful, and continuing contact

       between children and their parents.” Shelton v. Shelton, 835 N.E.2d 513, 518
       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 18 of 42
       (Ind. Ct. App. 2005), summarily aff’d by 840 N.E.2d 835 (Ind. 2006). Ortega is

       not a “household family member” and therefore, when Father is not available to

       care for the children, regardless of whether Ortega is available, Mother should

       be offered the opportunity for additional parenting time with the children.


[23]   Mother also argues the trial court deviated from the guidelines in modifying the

       length of time which would invoke the opportunity for additional parenting

       time without providing a written explanation for the deviation. In this case, the

       parties had initially agreed that two hours would be the threshold. While this

       case was pending, the trial court modified the threshold to three hours. In the

       final decree, the trial court changed the time period to overnights. The

       guidelines do not specify an amount of time that invokes section I(C)(3); on the

       contrary, the commentary to the guideline states “[t]he period of absence which

       triggers the exchange will vary depending upon the circumstances of the

       parties.” Because there is no time limit in the rule, the trial court’s decision is

       not a deviation from the rules and therefore does not require a written

       explanation. Moreover, the preamble to the Parenting Time Guidelines states

       that “[d]eviations from these Guidelines by either the parties or the court that

       result in parenting time less than the minimum time set forth below must be

       accompanied by a written explanation . . . .” Parenting Time G. Preamble

       (C)(3). Because the issue is Mother’s opportunity to exercise additional

       parenting time, the trial court’s decision does not result in her having less than

       the minimum time allowed by the Guidelines and does not necessarily require a

       written explanation. Nonetheless, the trial court did explain why it was


       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 19 of 42
       limiting the opportunity for additional parenting time to situations in which

       childcare was needed overnight. We cannot say the trial court abused its

       discretion in implementing an overnight threshold for the parties’ exercise of

       additional parenting time.


                          IV. Father’s Weekly Gross Income
[24]   Mother next contends the trial court erred in failing to include Father’s 2016

       and future bonuses in its calculation of Father’s weekly gross income for child

       support purposes. The trial court found that Father earns approximately

       $450,000 per year, but because his effective tax rate is over the tax rate

       presumed by the Indiana Child Support Guidelines, the trial court reduced his

       weekly gross income from $8,635.85 to $7,848.27 for child support purposes.

       Although Father testified his base pay for 2016 was $450,000, he also

       acknowledged the possibility of bonuses and further acknowledged that in 2016,

       his total compensation package was in excess of $2,000,000, which included an

       additional $287,500 in cash bonuses and $1,320,000 in equity (stock) awards.

       See Petitioner’s Exhibit 32. The trial court did not mention in its order nor did

       it factor into its child support calculation any irregular income.


[25]   Father contends Mother has waived this issue by failing to submit a copy of her

       proposed child support worksheet to the trial court as required by the Child

       Support Guidelines and local rule. See Ind. Child Support Guideline 3(B);




       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 20 of 42
       Hamilton County Local Rule 402.10.2 In response, Mother has tendered to this

       court the proposed findings of fact she filed with the trial court which included

       a child support worksheet.3 Although this was filed at the conclusion of the

       hearing rather than at the start, the trial court stated that filing both attorney fee

       affidavits and child support worksheets at the conclusion of the hearing “might

       be easier.” Tr., Vol. V at 83-84. We therefore decline to hold Mother has

       waived consideration of this issue, as she did in fact file a child support

       worksheet.


[26]   Mother’s worksheet shows her proposed child support calculation was based on

       a weekly gross income figure for Father of $8,653.84. Appellant’s Appendix,

       Volume 2 at 30.4 This is basically the same figure the trial court used before

       applying a tax rate credit to arrive at Father’s weekly gross income.5 However,

       Mother’s proposed findings also include a paragraph that, had the trial court

       adopted it, would require Father to convey a lump sum of ten percent of his

       2016 irregular income (which Mother calculated to be $160,755 for 2016) to



       2
        The local rule requires a child support worksheet to be filed prior to any hearing or trial; the Child Support
       Guidelines require a worksheet to be completed and filed “when the court is asked to order support.”
       3
        Mother did not file an appendix at the time she filed her Appellant’s Brief. Based on Father’s argument
       about this issue in his brief, she has requested leave to file a belated appendix which includes both parties’
       proposed findings of fact. Although we can envision very few circumstances in which an appendix
       containing all relevant documents should not be filed with the original brief, we grant Mother’s motion with
       an order issued contemporaneously with this opinion in order to fully adjudicate this issue.
       4
         The trial court imputed income to Mother in the amount of $530 per week. Mother’s worksheet included
       this same amount of income and she does not challenge that amount on appeal.
       5
        In fact, $450,000 translates to weekly gross income of $8,653.84 rather than $8,635.84. It appears the trial
       court transposed two numbers in arriving at a figure of $8,635.84. However, the difference in the child
       support amount with the correct number is negligible.

       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017            Page 21 of 42
       Mother and to do the same in all subsequent years. The evidence of Father’s

       irregular income was minimal, at best. Yet, the trial court made no finding

       regarding Father’s potentially substantial irregular income, not even to state

       why it was declining to include any bonus income. See Commentary to

       Guideline 3A(2)(b) (“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.”). It is clear Father received in 2016 a cash

       “M[anagement] I[ncentive] P[lan] Award” of $287,500 for his work in 2015.

       Because Father returned to work for his company in 2015, it is not clear

       whether this bonus is representative of the bonus he might receive in years to

       come. Moreover, Father’s “2016 Total Equity Award” of $1,320,000 in stock

       options does not have a fixed value until and unless those options are vested

       and Father chooses to sell them. Therefore, we cannot agree with Mother’s

       argument on appeal that the trial court erred by failing to include any amount

       of the bonus income in Father’s weekly gross income figure. See Commentary

       to Guideline 3A(2)(b) (noting it may not be equitable to include irregular

       income “by the process of determining the average of the irregular income by

       past history and including it in the obligor’s gross income calculation”).


[27]   Nonetheless, the Guidelines specify that courts should include bonus income in

       calculating child support. Salser v. Salser, 75 N.E.3d 553, 563 (Ind. Ct. App.

       2017). They also note that irregular income is “very fact sensitive” and that

       judges should be “innovative in finding ways to include income that would

       have benefited the family had it remained intact . . . .” Commentary to


       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 22 of 42
       Guideline 3A(2)(b). One such equitable way to treat irregular income “may be

       to require the obligor to pay a fixed percentage of [irregular income] in child

       support on a periodic but predetermined basis . . . .” Id. That is the method

       Mother advocated. Although we disagree with Mother that the equity award

       should be included at the time it is granted—as noted above, it is not apparent

       from the record that the equity award is vested or that it has a present fixed

       value—the cash bonus would certainly have immediately benefited the family

       had it remained intact, and some part of that irregular income should be

       included in Father’s child support obligation. Because the trial court failed to

       include any consideration of Father’s irregular income in the child support

       calculation, we conclude the trial court clearly erred. On remand, we order the

       trial court to fashion a child support award that takes into consideration

       Father’s irregular income and to set the amount and method of payment in

       accordance with the Guidelines.


                              V. Valuation of Marital Assets
[28]   Mother contends the trial court erred in its valuation of certain marital assets.

       Specifically, Mother alleges: 1) the trial court erred in finding that James

       Lintzenich’s payment of $400,000 in 2014-15 was not a repayment of money

       the parties loaned to him in 2008; 2) the trial court erred in finding that Father’s

       company Core Principle had no value; and 3) the trial court erred in valuing the

       parties’ real property in Tennessee at $1,500,000.




       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 23 of 42
                                       A. Standard of Review
[29]   The trial court has broad discretion to value the marital assets and we review

       the trial court’s valuation for an abuse of that discretion. Pitcavage v. Pitcavage,

       11 N.E.3d 547, 563 (Ind. Ct. App. 2014). A trial court does not abuse its

       discretion if its decision is supported by sufficient evidence or reasonable

       inferences from the evidence. Trabucco v. Trabucco, 944 N.E.2d 544, 558 (Ind.

       Ct. App. 2011), trans. denied. If the trial court’s valuation is within the scope of

       the evidence, the result is not an abuse of discretion. Webb v. Schleutker, 891

       N.E.2d 1144, 1151 (Ind. Ct. App. 2008).


                  B. Lintzenich Loan and Value of Core Principle
[30]   Because these two issues are entwined, we address them together. With respect

       to the transactions between the Whorleys and Lintzenich and the value of Core

       Principle, the trial court found:


               89. During the time frame following the date of the Petition for
               Divorce until the Parties physically separated, the Parties lived
               off the joint Fidelity account . . . by paying for the marital
               expenses directly from it.


               90. The Parties each received a pre-distribution of $1,000,000
               from the Fidelity account . . ., pursuant to the Provisional
               Agreement approved by the Court on February 5, 2015.


               ***


               94. The [Fidelity] account had an associated line of credit which
               was approved of jointly by the parties.

       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 24 of 42
        ***


        96. Although Mother has requested the court consider reducing
        the line of credit by the $300,000 which was used to help fund
        Core Principle, the court declines to do so. The parties jointly
        agreed to the line of credit and the payment in question was
        made prior to the date of filing.


        ***


        98. Father had started a business, Core Principle, prior to the
        date of filing. Core Principle created software to help track the
        attendance of college students.


        99. At the time the dissolution proceeding was filed, Father was
        employed by Core Principle. He maintained that employment
        until he left in June 2015 to take the job with [his original
        employer].


        100. After the dissolution proceeding was filed, Father attempted
        to get Mother to agree to the sale of the business or to take steps
        to obtain additional investments in the business. Mother refused
        to consent to either occurring.


        101. Father was forced to take a loan from James C. Lintzenich
        to attempt to keep Core Principle viable.


        102. Core Principle relinquished its office space in December
        2015 and is no longer in operation.


        103. Core Principle is indebted in the amount of $400,000 to
        James C. Lintzenich . . . . Father shall be solely responsible for
        the repayment of this debt. Father shall receive Core Principle


Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 25 of 42
               and shall have the ability to dispose of the assets of the same as
               he sees fit.


               ***


               118. The parties had made an investment of $400,000 into Oak
               Tree Consulting in August 2008.


               119. The investment was due to be repaid by August 15, 2012
               . . . . However, as of the date of the final hearing, no repayment
               had occurred.


               120. Father anticipates that some repayment may occur in the
               future but is unsure as to the amount or date of repayment.


               121. The parties shall equally divide any repayment that occurs
               from the Oak Tree Consulting investment.


       Appealed Order at 14-18. The trial court ultimately valued Core Principle at

       negative $400,000. Id. at 19.


[31]   Essentially, Mother contends the trial court erred in not including an additional

       $895,000 in the marital pot representing the cash injected into Core Principle in

       its waning months. In May 2014, $300,000 from the parties’ margin credit line

       on their Fidelity account was transferred to Core Principle. Mother said she

       was unaware a draw had been made on the credit line for that purpose until

       several weeks later. However, she also testified that she and Father had

       discussed that very thing and both signed the paperwork that opened up the

       capacity to make such a draw. She argues that although she was aware of and


       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 26 of 42
       agreed to opening the credit line, she did not know Father was actually going to

       withdraw money. The trial court clearly did not give credit to Mother’s

       testimony on this matter. Father testified an additional $195,000 came from his

       portion of the pre-distribution from the Fidelity account, and therefore, his

       monetary contributions to Core Principle had no effect on the marital estate.

       To the extent Mother argues he should not have made those investments, there

       is no harm to her. That leaves the $400,000 from Lintzenich.


[32]   At first glance, that the parties loaned a company in which Lintzenich was the

       primary partner $400,000 in 2008 and then Lintzenich loaned $400,000 to Core

       Principle in 2014-15 does not seem like a coincidence. And perhaps it is not.

       Mother’s “take” on that transaction was “that it’s at least a subtle or an indirect

       payback of the [original] loan.” Tr., Vol. III at 12. She testified that “months

       before [Lintzenich’s] payments came in, . . . [Father] talked to me a couple

       times about how [Lintzenich] was thinking about investment . . . [but] I think

       the simplest way to look at it for me is that it really was – even if he was

       directed to make payments or it was involved in another agreement, that it

       really was to pay back the $400,000.” Id. at 13. However, there is evidence in

       the record to support the trial court’s findings to the contrary. Father denied

       that Lintzenich’s loan to Core Principle was a repayment of the earlier loan,

       testifying that “it is my statement that it has never been in any way connected to

       any other investment or loan.” Tr., Vol. V at 159. A 2008 promissory note

       between the Whorleys and Lintzenich’s company, Oak Tree, showing Oak Tree

       is obligated to repay the loan from the Whorleys with interest was introduced


       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 27 of 42
       into evidence, as was a 2014 convertible note between Lintzenich and Core

       Principle showing Core Principle is obligated to repay Lintzenich in either cash

       or shares. The documentary evidence supports the trial court’s findings that

       these were two separate and unrelated transactions.


[33]   Mother testified she believed Core Principle was worth $370,000 on the date the

       dissolution was filed. Father testified he did not believe Core Principle had any

       value at the time of the final hearing. During an earlier hearing, Father testified

       extensively about Core Principle, noting the original plan was to bring in three

       million dollars during the first two years, but “due to the uncertainty of the

       outcome of this [dissolution] process,” Core Principle was unable to bring in

       any money after the dissolution proceedings began besides Father’s additional

       contributions and the Lintzenich note. Tr., Vol. II at 17. Even after the

       infusion of cash, by October of 2015, only approximately $25,000 remained in

       Core Principle’s bank account. For the fall semester of 2015, Core Principle

       was providing its service as a free pilot project to seventeen universities. Father

       testified the lack of capital had caused the company to go from five employees

       to three and to move out of its rented office space, but he was trying to keep the

       company afloat long enough to live up to those contracts. At the final hearing,

       Father testified he had closed the company earlier in 2016. The trial court’s

       decision that Core Principle did not have any positive value is within the scope

       of the evidence – the trial court can value an asset as of any time between the

       date of filing and the date of the final hearing. Pitcavage, 11 N.E.3d at 563.




       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 28 of 42
       Even accepting Mother’s valuation at the outset of the divorce proceedings, the

       company incurred debt in excess of that value in trying to remain viable.


[34]   The trial court ordered that if Oak Tree ever repaid the 2008 loan, the

       repayment was to be split between the parties. The trial court further ordered

       Father to be solely responsible for repaying the loan from Lintzenich. In the

       final analysis, the documentary evidence and testimony support the trial court’s

       findings regarding these items.


                                       C. Tennessee Property
[35]   With respect to the property the parties owned in Tennessee, the trial court

       found:


               85. Father’s expert . . . testified that he believed the value of the
               Tennessee real estate to be $1,035,170 . . . .


               86. Mother’s expert . . . testified that he believed the value of the
               Tennessee real estate to be $2,040,000 . . . .


               87. The property was purchased by the Whorleys in 2004 for
               $1,000,000.


               88. The Court finds that the value of the Tennessee real estate is
               $1,500,000 and shall be awarded to Father.


       Appealed Order at 14.


[36]   Mother contends the trial court’s valuation is not supported by the evidence

       because no expert testified to that value. Yet, the trial court’s valuation—an

       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 29 of 42
       average of the parties’ two appraisals—falls squarely within the scope of the

       evidence. See Webb, 891 N.E.2d at 1151 (holding trial court’s determination

       that value of farm equipment was an average between the two values offered by

       the parties was within the scope of the evidence and not an abuse of discretion);

       Cleary v. Cleary, 582 N.E.2d 851, 852-53 (Ind. Ct. App. 1991) (holding the trial

       court’s method of averaging two values offered into evidence to determine the

       value of an asset is not against the logic and effect of the facts before the court).

       The trial court did not abuse its discretion in valuing the Tennessee property.


                            VI. Distribution of Marital Estate
[37]   Finally, Mother contends the trial court erred in making an unequal distribution

       of the marital estate because the trial court failed to consider each statutory

       factor in dividing the marital estate and improperly weighed the factors it did

       consider.


[38]   The division of marital assets lies in the trial court’s discretion and we will

       reverse only for an abuse of that discretion. Fischer v. Fischer, 68 N.E.3d 603,

       608 (Ind. Ct. App. 2017), trans. denied. Although the facts and reasonable

       inferences might allow for a different conclusion, we will not substitute our

       judgment for the trial court’s. Hendricks v. Hendricks, 784 N.E.2d 1024, 1027

       (Ind. Ct. App. 2003). Indiana Code section 31-15-7-4(b) requires the trial court

       to divide the marital property in a just and reasonable manner. Section 31-15-7-

       5 states the court “shall presume that an equal division of the marital property

       between the parties is just and reasonable.” This presumption can be rebutted


       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 30 of 42
by a party who presents evidence of the following factors showing that an equal

division would not be just and reasonable:


        (1) The contribution of each spouse to the acquisition of the
        property, regardless of whether the contribution was income
        producing.


        (2) The extent to which the property was acquired by each
              spouse:

                 (A) before the marriage; or
                 (B) through inheritance or gift.


        (3) The economic circumstances of each spouse at the time the
        disposition of the property is to become effective . . . .


        (4) The conduct of the parties during the marriage as related to
        the disposition or dissipation of their property.


        (5) The earnings or earning ability of the parties as related to:


                 (A) a final division of property; and
                 (B) a final determination of the property rights of the
                 parties.


Ind. Code § 31-15-7-5. In dividing the marital property, the trial court must

consider all the statutory factors, but is not required to explicitly address each

one in its order. Del Priore v. Del Priore, 65 N.E.3d 1065, 1078 (Ind. Ct. App.

2016), trans. denied. We presume the trial court considered all the factors, and

the trial court need only state its reasons for deviating from an equal division.

Shumaker v. Shumaker, 559 N.E.2d 315, 318 (Ind. Ct. App. 1990). Nonetheless,
Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 31 of 42
       because the trial court may not rely on just one of the factors to support an

       unequal division of property, Helm v. Helm, 873 N.E.2d 83, 90 (Ind. Ct. App.

       2007), we must be able to infer from the trial court’s findings that it did indeed

       consider all the factors in conjunction with each other, Montgomery v. Faust, 910

       N.E.2d 234, 239 (Ind. Ct. App. 2009). As long as we are able to say the trial

       court considered all the evidence bearing on the statutory factors, there is no

       requirement that the trial court find a certain number of the factors weigh in

       favor of an unequal division to support such a result.


[39]   The trial court made the following findings regarding distribution of the marital

       estate:


                 69. The extent to which each spouse has contributed to the
                 acquisition of the property, regardless of whether the contribution
                 was income producing, favors a balancing of the factors in favor
                 of Father.


                 70. Prior to the Parties’ marriage, Father’s net worth was
                 approximately $5,797,489 . . . . Mother did not provide
                 documentation of any assets that she brought into her marriage.


                 71. During the marriage, Father managed the Parties’
                 investments and increased the value of the marital estate during
                 that time.


                 ***


                 75. Throughout the marriage and during the pendency of the
                 divorce, Father’s continued employment and business endeavors
                 helped sustain the marital estate.

       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 32 of 42
        76. The extent to which the property was acquired by each
        spouse prior to the marriage or through inheritance or gift favors
        a balancing of the factors in favor of Father.


        77. The conduct of the Parties during the marriage as related to
        the disposition or dissipation of their property favors a balancing
        of the factors in favor of Father.


        78. Although Mother was a stay-at-home mother throughout the
        Parties’ marriage, the Parties employed a nanny, Marisol Ortega,
        for sometimes over 80 hours per week from 2005 through 2013,
        to assist Mother in parenting the minor children . . . . [T]he
        parties paid Marisol Ortega a total of $576,636.64 from 2005 to
        2013.


        79. The Parties also employed a night nanny after both children
        were born and an additional part-time nanny . . . for which there
        were expenses incurred.


        80. The Parties paid approximately $8,750 for Mother’s
        Treatment Program and Breathalyzer monitoring through Sober
        Link . . . .


        81. The Parties further paid for numerous counselors and
        treatment at Fairbanks treatment center in an attempt to address
        Mother’s alcoholism. The costs for the same were substantial.


        82. Father has the burden of presenting relevant evidence to
        rebut the presumption that an equal division of the marital
        property between the Parties is just and reasonable.


        83. Father has rebutted the presumption in favor of an equal
        division of the marital estate by virtue of the evidence in support
        of the contribution of each spouse to the acquisition of the

Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 33 of 42
               property, regardless of whether the contribution was income
               producing, the extent to which the property was acquired by each
               spouse prior to the marriage or through inheritance or gift, and
               the distribution and dissipation of the marital estate during the
               marriage.


               ***


               126. Father is entitled to 57.5% of the remainder of the marital
               estate as an unequal, yet equitable distribution of the marital
               estate.


       Appealed Order at 12-13, 18. Mother contends the trial court abused its

       discretion in dividing the marital property unequally because it did not clearly

       consider the parties’ relative earning capacity and economic circumstances, did

       not consider her contributions to the parties’ marital estate, and erroneously

       considered the money paid to family help and to Mother’s recovery as

       dissipation of assets. We agree with Mother on this point.


                     A. Contributions to Acquisition of Property
[40]   The trial court made explicit findings as to this factor and found it weighed in

       Father’s favor. See Appealed Order ¶¶ 69-75. The trial court focused on

       Father’s substantial assets at the time of the marriage and his employment and

       management of the parties’ assets during the marriage. The trial court noted

       Mother did not provide any evidence of the assets she owned at the time of the

       marriage. However, the trial court did not mention evidence that Mother

       provided the down payment for the house the parties purchased in Las Vegas, a

       house they later sold and presumably used the proceeds from to buy a new
       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 34 of 42
       house in which the parties eventually settled together and welcomed their first

       child. See Chestnut v. Chestnut, 499 N.E.2d 783, 786 (Ind. Ct. App. 1986)

       (holding trial court properly considered wife’s contributions during the parties’

       cohabitation before marriage). There was evidence Mother left a higher-paying

       job in Indiana to join Father in Las Vegas at his request but continued to work

       until the parties’ first child was born. Moreover, despite the fact the parties

       hired help for their home and children, there is no evidence Mother abdicated

       housekeeping and childrearing responsibilities for the ten years she was a stay-

       at-home parent. Further, Mother’s presence in the home allowed Father the

       time and support necessary for him to pursue his business and entrepreneurial

       goals. We live in an age that honors the marital partnership by valuing the

       contributions of spouses who do not work outside of the parties’ home as we do

       the monetary contributions of wage earners. Both parties made substantial

       contributions to the acquisition of property. Nonetheless, considering our

       standard of review and Father’s monetary contributions to the parties’ marital

       estate throughout the marriage, we cannot say the trial court’s finding that this

       factor weighs in favor of an unequal division is clearly erroneous.


                      B. How and When Property Was Acquired
[41]   The trial court also made a general finding about this factor and found it

       weighed in Father’s favor, though there were no other specific findings

       supporting this conclusion. See Appealed Order at ¶ 76. There is little evidence

       of how Father amassed nearly six million dollars before the parties’ marriage,

       but there was evidence that Mother made the down payment on their first Las

       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 35 of 42
       Vegas house because Father did not “have those resources. He still had some

       . . . I believe a good amount of debt . . . .” Tr., Vol. II at 130. It would appear

       then that Father amassed the bulk of that money during the parties’

       cohabitation. See Tr., Vol. V at 126 (Father testifying that his employer made

       him a financial incentive offer if he stayed for four years and he earned “the first

       lump sum of money” from that in 2000 or 2001). There is no evidence of

       inheritance or gift, and Father concedes in his brief that this factor “is at most

       neutral.” Appellee’s Brief at 38.


                            C. Present Economic Circumstances
[42]   The trial court made no findings with respect to the economic circumstances of

       the parties at the time the disposition was to become effective. The evidence

       shows Father makes a guaranteed salary of nearly half a million dollars with the

       potential for earning several times that salary through bonuses and stock

       options each year. He lives in the marital home which is mortgage-free and

       collects rent from a garage apartment tenant. The amount in his retirement

       account is nearly three times the amount in Mother’s. Mother, who was a CPA

       when the parties met, has been out of the workforce for at least ten years. Even

       if she were to desire to return to work as a CPA, she would have to renew her

       license and it would take time to return to the workforce in this capacity. She

       currently works as substitute teacher at the children’s school, earning $13.71 an

       hour, although it is unclear how many hours a week she works. For purposes

       of child support, the trial court found Mother to be voluntarily underemployed,

       and Mother does not dispute the income the trial court imputed to her. But

       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 36 of 42
       even at that imputed salary, $530 per week, Mother would earn less than

       $30,000 per year. And Mother was required to buy a house when she moved

       out of the marital home. The parties’ incomes and resources are disparate, yet

       each will have the children in his or her care an equal amount of time. Mother

       is at a distinct disadvantage when it comes to her economic circumstances at

       the time of the dissolution.


               D. Conduct of the Parties with Respect to Property
[43]   The trial court made several findings about this factor and again, found it

       weighed in favor of Father. See Appealed Order at ¶¶ 77-81. The trial court

       focused on the money the parties spent on household help and Mother’s

       alcoholism-related treatment and essentially determined those expenditures

       constituted dissipation of marital assets by Mother.


[44]   “Waste and misuse are the hallmarks of dissipation. . . . It generally involves

       the use or diminution of the marital estate for a purpose unrelated to the

       marriage . . . .” In re Marriage of Coyle, 671 N.E.2d 938, 943 (Ind. Ct. App.

       1996). Factors to be considered in determining whether dissipation has

       occurred include whether the expenditure benefitted the marriage or was made

       for a purpose entirely unrelated to the marriage, the timing of the transaction,

       whether the expenditure was excessive or de minimus, and whether there was

       intent to hid, deplete, or divert the marital asset. Goodman v. Goodman, 754

       N.E.2d 595, 598 (Ind. Ct. App. 2001).




       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 37 of 42
[45]   As for the parties’ household help, the trial court found the parties had spent

       nearly $600,000 over eight years paying Ortega “to assist Mother in parenting

       the minor children.” Appealed Order at 12. The trial court apparently found

       this to be an unnecessary and excessive expense. First, the tenor of the trial

       court’s finding—that it was Mother’s responsibility alone to parent the children

       and that she was unable to do so—strikes us as inappropriate. It is the

       responsibility of both parents to parent their children. In this regard, we note

       that now that the parties have divorced, Mother cares for the children when

       they are with her on her own and Father continues to employ Ortega and enjoy

       the benefits of her assistance. Second, both parties acquiesced in and were able

       to afford employing household help, and the expenditure was clearly made for

       the benefit of the marriage. See, e.g., Tr., Vol. V at 205 (Father testifying, “[I]t

       was clear to me from the start that we would do better as a couple and . . . as a

       family if we had a lot of childcare support.”). There is no evidence supporting

       the notion that the parties’ mutually agreed employment of full-time household

       help was a waste or misuse of the marital assets.


[46]   As for the money spent on Mother’s rehabilitation and treatment, again, there is

       no evidence supporting the trial court’s finding that those funds were misused

       or wasted for a purpose unrelated to the marriage. If Mother had, for instance,

       diabetes, no one would say the money spent on treating that disease had been

       wasted. There is no reason to do so with respect to the disease of alcoholism,

       either. When Father found out about Mother’s alcoholism, he encouraged her

       to get treatment for her own health, the safety and security of their children,


       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 38 of 42
       and the health of their marriage. Father also encouraged Mother to enter the

       Soberlink program even though Candace Backer, who oversees the program,

       did not necessarily think the program would be beneficial to Mother because

       she had already been sober for nearly a year. Backer testified the program is

       intended for people who have difficulty maintaining their recovery and need a

       higher level of accountability and she felt Mother was already past that stage of

       recovery. Nonetheless, Backer agreed to accept Mother into the program at the

       parties’ request. That Mother continued to use the Soberlink breathalyzer

       device twice a day and incur those monitoring expenses is apparently due to

       Father’s insecurity about a possible relapse despite 1,067 consecutive tests over

       two and one-half years that showed no presence of alcohol.


[47]   In short, although the evidence supports the factual findings of the trial court

       about how much was spent and on what, all of these expenses were incurred

       openly with the mutual agreement and knowledge of both parties and for

       purposes related to the marriage. The trial court’s findings do not support the

       trial court’s conclusions that Mother dissipated marital assets or that this factor

       weighs in favor of an unequal distribution.


                                           E. Earning Ability
[48]   Although the trial court did make findings regarding the parties’ current income

       in the context of their child support obligations, it made no findings with

       respect to the parties’ relative earning abilities in considering the appropriate

       division of the marital estate. There is nothing in the evidence to suggest Father

       will not or could not continue to make a substantial salary in his chosen field,
       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 39 of 42
       supplemented by his other business interests. Mother, on the other hand, will

       likely have to undergo some additional education whether she intends to obtain

       employment as a CPA or enter some other field. It is unlikely she will be able

       to match her previous high salary for a considerable time, if ever. The earnings

       and future earning ability of Father at the time of the dissolution are vastly

       superior to Mother’s.


                                                F. Summary
[49]   We recognize that we will reverse a property division only if there is no rational

       basis for the award. Helm, 873 N.E.2d at 89. Here, there is nothing in the trial

       court’s order to suggest the trial court considered the parties’ present economic

       circumstances or earning ability—factors which clearly weigh in Mother’s

       favor—and it unfairly penalized Mother in considering the conduct of the

       parties with respect to their property during the marriage. In addition, it does

       not appear there was substantial property acquired by either party before their

       relationship began. Based on the record before us, we conclude there is no

       rational basis supporting the trial court’s determination that Father rebutted the

       presumption that an equal division of the marital property is just and

       reasonable. We therefore remand for the trial court to effectuate an equal

       distribution of the property.



                                               Conclusion
[50]   The trial court did not clearly err in awarding the parties’ joint legal custody of

       their children with Father as the ultimate decision-making authority, nor did
       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 40 of 42
       the trial court err in ordering the opportunity for additional parenting time need

       only be offered if a parent needed child care for a period including an overnight.

       Those orders of the trial court are affirmed. However, the trial court did err in

       interpreting Indiana Parenting Time Guideline I(C)(3). Although Ortega is a

       “household member,” she is not a “household family member” and therefore

       her availability does not affect the opportunity for additional parenting time.

       This order of the trial court is reversed. The trial court also erred in failing to

       include any of Father’s irregular income in the child support calculation. The

       child support order is remanded for further consideration consistent with our

       decision herein.


[51]   Further, the trial court did not err in valuing the loan to be repaid by

       Lintzenich, Father’s company Core Principle, or the parties’ Tennessee

       property. The trial court’s valuation orders are affirmed. But the trial court’s

       conclusion that Father has rebutted the presumption of an equal division of the

       marital property is clearly erroneous, as it rests on improper considerations and

       was made without taking into account all of the relevant factors. The trial

       court’s property division is therefore reversed.


[52]   We remand this case for the trial court to amend its order with respect to

       parenting time and child support consistent with this opinion and to further

       amend its order to effect an equal division of the marital property.


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




       Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017   Page 41 of 42
Vaidik, C.J., and Bailey, J., concur.




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