MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                       Oct 23 2019, 9:47 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                                  ATTORNEY FOR APPELLEE
Katherine A. Harmon                                      Stephenie K. Gookins
Jared S. Sunday                                          Cate Terry & Gookins, LLC
Mallor Grodner, LLP                                      Carmel, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Holly Diethrich,                                         October 23, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-DC-928
        v.                                               Appeal from the Vigo Superior
                                                         Court
Kyle Diethrich,                                          The Honorable Charles D. Bridges,
Appellee-Petitioner.                                     Special Judge
                                                         Trial Court Cause No.
                                                         84D02-1807-DC-5501



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DC-928 | October 23, 2019                     Page 1 of 13
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, Holly Diethrich (Mother), appeals the trial court’s Final

      Order on Dissolution (Final Order) in favor of Appellee-Petitioner, Kyle

      Diethrich (Father).


[2]   We affirm.


                                                   ISSUES
[3]   Mother presents us with two issues which we restate as:


              (1) Whether the trial court’s grant to Father of parenting time in
                 excess of that provided for in the Indiana Parenting Time
                 Guidelines (Guidelines) was clearly erroneous; and


              (2) Whether the trial court abused its discretion when it
                 unequally divided the marital estate.


                      FACTS AND PROCEDURAL HISTORY
[4]   Father manages a skilled-care nursing facility. Father is also a veteran who

      serves as a combat medic in the Army Reserve. Mother is the marketing team

      leader for a dentistry and orthodontics company. In 2011, before the parties

      began dating, Father purchased a home located on Anthony Lane in Terre

      Haute (premarital home). Mother did not contribute monetarily to the

      purchase of the premarital home. Mother began living in the home with Father

      after he purchased it. On a date which is unclear from the record, Father sold

      the premarital home and used $12,882.82 of the proceeds to renovate a home


      Court of Appeals of Indiana | Memorandum Decision 19A-DC-928 | October 23, 2019   Page 2 of 13
      located on Oakwood Place in Terre Haute (marital residence) that the couple

      moved into together.


[5]   The parties married on September 5, 2015. On February 15, 2018, one child

      was born of the marriage, C.D., who has congenital lobar emphysema. The

      management of this condition requires that C.D. receive daily nebulizer

      treatments and that C.D.’s liquid foods be thickened to deter aspiration.


[6]   Father filed for dissolution on July 20, 2018. During the pendency of the

      dissolution proceedings, Mother moved the trial court to have Father drug

      tested. The trial court denied that motion. On the same day that Mother filed

      her motion, Father underwent a voluntary hair follicle drug screen which

      showed that he was free from illicit substances.


[7]   On February 19, 2019, the trial court held the final hearing. By that time,

      Father had relocated to Mattoon, Illinois, which was approximately a one-hour

      drive from Mother’s home and C.D.’s day care in Terre Haute. Father testified

      that he is drug tested regularly by the Army and by his employer. Father

      expressed concern that he would eventually lose his employment if he were

      required to continue to leave work early in order to exercise his parenting time

      scheduled as part of the Preliminary Orders, which had not provided for any

      overnight parenting time. Father confirmed at the hearing that he had fed,

      bathed, and cared for C.D. overnight prior to the separation and that he was

      capable of administering the nebulizer treatments and thickened foods that she




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-928 | October 23, 2019   Page 3 of 13
      required. Father requested that he be reimbursed the $12,882.82 from the

      premarital home proceeds that he had invested in the marital home renovation.


[8]   Mother testified that she wanted Father to exercise parenting time in line with

      the Guidelines, except that she felt that overnight parenting time should be

      phased in. Mother requested an equal division of the marital estate. As to the

      proceeds of the sale of the marital home, Mother did not feel that Father was

      entitled to an unequal share in light of the $12,882.82 he had invested because

      “we lived there together.” (Transcript p. 104).


[9]   On April 8, 2019, the trial court issued its Final Order in which it ordered that

      Father would exercise parenting time overnights on Wednesday and Thursday

      each week and that every other week he would additionally exercise parenting

      time overnights on Saturday and Sunday. The trial court entered the following

      findings and conclusion relevant to parenting time:


              a. [] This schedule minimizes any driving by Mother.


              ****


              d. The [c]ourt notes that this Parenting Time Schedule does vary
              from the [Guidelines]. However, this has been done as an effort
              to grant as much parenting time to Father as possible. Father has
              demonstrated good character and the medical knowledge
              necessary to handle any of [C.D.’s] medical needs.


      (Appellant’s App. 13-14). The trial court divided the proceeds from the sale of

      the marital residence as follows:


      Court of Appeals of Indiana | Memorandum Decision 19A-DC-928 | October 23, 2019   Page 4 of 13
                 14. Sale of [the marital residence]. Real Property. The parties
                 shall divide the sales proceeds as follows:

                          a. Total amount of proceeds: $20,370.72

                          b. Total amount from sale of [Father’s] premarital home:
                          $12,882.82

                          c. Total amount paid in repairs/fees by [Father] out of
                          pocket: $1972.60 1

                          d. $20,370.72 – 12,882.82 = $7487.90

                          e. $7487.90/2 = $3474.00

                          f. [Father] receives after out of pocket reimbursement:
                          $17,613.07

                          g. [Mother] receives: $2757.65


       (Appellant’s App. pp.15-16).


[10]   Mother now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION
                                                I. Standard of Review

[11]   Mother challenges the portions of the Final Order granting parenting time to

       Father and dividing the marital estate. It appears that neither party requested

       that the trial court enter special findings of fact and conclusions of law pursuant

       to Indiana Trial Rule 52. When a trial court enters findings of fact and

       conclusions of law sua sponte, those findings control only with respect to the




       1
           Mother does not appeal the award of a reimbursement of half of this amount to Father.


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-928 | October 23, 2019             Page 5 of 13
       issues they cover, and the general judgment standard applies to issues upon

       which no findings were entered. Ahls v. Ahls, 52 N.E.3d 797, 800 (Ind. Ct. App.

       2016). Where the trial court entered findings, we consider whether the findings

       are supported by the evidence and whether the findings support the judgment.

       Id. We will only disregard a finding if it is clearly erroneous, meaning that

       there are no facts or inferences in the record to support it. Id. Matters falling

       under the general judgment standard are reviewed without reweighing evidence

       or considering witness credibility and may be affirmed upon any theory

       consistent with the evidence. Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind.

       2008).


                                               II. Parenting Time

[12]   Mother first challenges the trial court’s award of parenting time to Father in

       excess of that provided for in the Guidelines for a child of C.D.’s age.

       Following a dissolution of marriage, the non-custodial parent normally is

       entitled to reasonable parenting time. See Ind. Code § 31-17-4-1(a). The trial

       court entered findings to support its parenting time determination, so we review

       that portion of its Order under the clearly erroneous standard. See Ahls, 52

       N.E.3d at 800. In addition, we defer to the trial court’s judgment regarding

       parenting time issues and will reverse only where the court has manifestly

       abused its discretion. See Shady v. Shady, 858 N.E.2d 128, 143 (Ind. Ct. App.

       2006) (reviewing the portion of the trial court’s dissolution order pertaining to

       parenting time), trans. denied. Our review of parenting time determinations

       entails neither reweighing the evidence nor judging witness credibility, and no

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-928 | October 23, 2019   Page 6 of 13
       abuse of discretion will be found “if there is a rational basis in the record

       supporting its determination.” Id. The best interests of the child are the

       foremost consideration in parenting time determinations. Perkinson v. Perkinson,

       989 N.E.2d 758, 761 (Ind. 2013).


[13]   The trial court did not afford Father any overnight parenting time as part of its

       Preliminary Orders. In its Final Order, the trial court ruled that Father’s

       parenting time would be increased to include overnights with C.D. on

       Wednesdays and Thursdays and weekend overnights on Saturday and Sunday

       on alternating weekends. Therefore, Father would exercise parenting time

       chiefly through two overnights with C.D. one week and four overnights with

       her the next. 2 The trial court crafted its order in an effort to provide as much

       parenting time to Father as possible because it found that he had demonstrated

       good character and had the medical knowledge necessary to address C.D.’s

       needs. The trial court also found that its parenting time schedule minimized

       driving for Mother. The trial court’s findings as to Father were supported by

       evidence that Father worked full-time as a rehabilitation facility manager, was a

       veteran and military medic who knew how to administer the nebulizer

       treatments and the thickened liquids C.D. required, had tested negative for

       controlled substances when Mother moved unsuccessfully to have him drug

       tested, and was an active participant in C.D.’s life and caregiving both before



       2
         The trial court also ordered that holiday, special day, and extended parenting time would occur pursuant to
       the Guidelines appropriate for a child of three years of age. Mother does not address this portion of the trial
       court’s parenting time order on appeal.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-928 | October 23, 2019                   Page 7 of 13
       and after the dissolution proceedings began. In addition, although these

       findings were not extensive, we find that they provided a rational basis for the

       trial court’s grant of overnight parenting time to Father. See Shady, 858 N.E.2d

       at 143.


[14]   Mother does not directly challenge the evidence supporting these findings.

       Rather, she appears to argue that the trial court’s findings do not support its

       parenting time order and that the trial court abused its discretion, first directing

       our attention to the portion of the Guidelines providing that very young

       children have a great need for continuous contact with their primary caregiver,

       who provides a sense of continuity and security. Parenting Time G. II(C)(1).

       Mother also directs us to the Guidelines that provide for one overnight per

       week for infants aged thirteen to eighteen months and for two overnights per

       week for children aged nineteen months through three years. Parenting Time

       G. II(C)(3)(B), (C). Mother argues that the trial court’s parenting time order is

       greatly in excess of those provisions and is in direct contradiction to the

       Guideline’s emphasis on continuous contact with the primary caregiver.

       Lastly, Mother contends that the trial court’s parenting time order “does not

       serve [C.D.] well or recognize her best interests at her young age.” (Appellant’s

       Br. p. 15).


[15]   In addressing Mother’s arguments, we begin by noting that, although the

       Guidelines provide that it is beneficial for a very young child to have

       continuous contact with his primary caregiver, the Guidelines are also generally

       premised on the assumption that it is normally in a child’s best interests to have

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-928 | October 23, 2019   Page 8 of 13
       “frequent, meaningful and continuing contact with each parent” and that “both

       parents nurture their child in important ways, significant to the development

       and well being of the child.” Parenting Time G. pmbl. The Guidelines further

       provide that a non-custodial parent who has had regular care responsibilities for

       the child “shall” have overnight parenting time and that overnight contact

       between a parent and a very young child provides opportunities for them to

       grow as a family. Parenting Time G. II(B), (C)(1) cmt. 3. The commentary to

       the Guidelines suggests that “[i]f workable, it is recommended that no more

       than two days go by without contact with the noncustodial parent.” Parenting

       Time G. II(C)(1) cmt. 2. Mother does not contest that Father had regular care

       responsibilities for C.D. before and after separation. We conclude that the trial

       court’s order balances and serves the goals of the Guidelines in that the majority

       of C.D.’s time will continue to be spent with Mother while allowing Father also

       to have significant and continuous contact with his minor daughter.


[16]   We also observe that the trial court was not required to order parenting time

       consistent with the Guidelines for overnight parenting time for very young

       children. While there is a presumption that the Guidelines apply in all cases, a

       trial court may deviate from them. See Parenting Time G. pmbl. (C)(3). Even

       the Specific Parenting Time Provisions containing the age-specific overnight

       guidelines cited by Mother in support for her argument provide that they “are

       designed to assist parents and the court in the development of a parenting plan”

       and that “[t]hey represent the minimum recommended time a parent should

       have to maintain frequent, meaningful, and continuing contact with a child.”


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-928 | October 23, 2019   Page 9 of 13
       Parenting Time G. II(A) (emphasis added). What is more, because the trial

       court granted Father parenting time in excess of that provided in the Guidelines

       for the non-custodial parent, it was not required to give a written explanation

       for its order. Parenting Time G. pmbl. (C)(3). Nevertheless, as set forth above,

       the trial court provided an adequate explanation.


[17]   Lastly, we reject Mother’s contention that the trial court’s order does not serve

       C.D. well and was not in her best interests. Mother supports her argument with

       citations to her own testimony that C.D. does not transition well from

       caregivers and takes time to adjust upon her return to Mother’s home. The trial

       court heard this testimony but apparently did not give a great deal of weight to

       it, and we find that this argument is unavailing in that it requires us to reweigh

       evidence in contravention to our standard of review. See Shady, 858 N.E.2d at

       143. Mother also states that Father now lives an hour away from Mother, but

       she does not explain how the trial court’s order is not in C.D.’s best interest in

       light of that fact. We conclude that the trial court’s parenting time

       determination was not clearly erroneous or an abuse of the trial court’s

       discretion and that Mother has failed to convince us that the order was not in

       C.D.’s best interests. See Ahls, 52 N.E.3d at 800; Shady, 858 N.E.2d at 143;

       Perkinson, 989 N.E.2d at 761.


                                             III. Property Division

[18]   Mother also argues that the trial court abused its discretion when it divided the

       proceeds from the sale of the marital residence. The trial court did not enter

       specific findings in support of this portion of the Final Order. Therefore, we

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-928 | October 23, 2019   Page 10 of 13
       review this claim under the standard of review applicable to general judgments.

       Ahls, 52 N.E.3d at 800.


[19]   There is a statutory presumption that an equal division of a marital estate is just

       and reasonable. See I.C. § 31-15-7-5. However, this presumption may be

       rebutted with evidence regarding the contribution of each spouse to the

       acquisition of the property and the extent to which the property was acquired

       by each spouse before marriage. See I.C. § 31-15-7-5(1), (2)(A). The division of

       a marital estate is left to the sound discretion of the trial court. Helm v. Helm,

       873 N.E.2d 83, 89 (Ind. Ct. App. 2007). “The presumption that a dissolution

       court correctly followed the law and made all the proper considerations in

       crafting its property distribution is one of the strongest presumptions applicable

       to our consideration on appeal.” Id.


[20]   In the Final Order, the trial court divided the marital home sale proceeds and

       awarded Father the amount he had invested from the sale of the premarital

       home into the marital residence. The parties agree that, other than the disputed

       division of the proceeds of the sale of the marital residence, the trial court

       equally divided the marital assets and debts. Mother’s first challenge to the

       division of the proceeds of the sale of the marital residence is that the trial court

       did not state its reasons for the unequal division. However, although the trial

       court did not enter specific, formal findings to support this portion of its Order,

       its ruling that the “[t]otal amount from the sale of [Father’s] premarital home”

       was to be set over to Father made it clear that it was doing so because Father

       solely made this contribution to the marital residence and that the contribution

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-928 | October 23, 2019   Page 11 of 13
       came from assets that he owned prior to the marriage. Both of these

       considerations are valid statutory factors a trial court may consider to support

       the unequal division of a marital estate. See I.C. § 31-15-7-5(1), (2)(A).

       Therefore, Mother’s argument that the “Order is entirely silent as to why

       [Father] was entitled to an unequal share of the marital estate” is inaccurate,

       and, therefore, unpersuasive. (Appellant’s Br. p. 19).


[21]   Mother also challenges the substance of the division of the marital residence

       sale proceeds. However, Mother’s argument consists of bald assertions that

       “[w]hile Indiana law allows the presumption of an equal division to be

       rebutted, [Father] failed to rebut the presumption” and “the unequal division of

       the marital estate is not just and reasonable.” (Appellant’s Br. pp. 16, 19).

       Father requested this unequal division of the marital residence sale proceeds

       and supported that request with testimony at the final hearing that he alone

       purchased the premarital home, Mother lived there with him but did not pay

       the mortgage or other bills, and he used the proceeds of the sale of the

       premarital home to renovate the marital residence. Mother does not address

       this evidence or support her argument with legal authority that a trial court

       abuses its discretion in unequally dividing a marital estate under like

       circumstances. We conclude that Mother’s argument is unpersuasive and that

       she has failed on appeal to rebut the strong presumption that the trial court

       correctly applied the law and made all appropriate considerations in crafting its

       property division order. See Helm, 873 N.E.2d at 89.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-928 | October 23, 2019   Page 12 of 13
                                             CONCLUSION
[22]   Based on the foregoing, we conclude that the trial court’s parenting time order

       was not clearly erroneous or an abuse of its discretion and that Mother has

       failed to meet her burden on appeal to persuade us that the trial court abused its

       discretion when it unequally divided the marital residence sale proceeds.


[23]   Affirmed.


[24]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-928 | October 23, 2019   Page 13 of 13
