      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                           FILED
      regarded as precedent or cited before any                                  Feb 25 2020, 8:49 am
      court except for the purpose of establishing
                                                                                      CLERK
      the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                                     Court of Appeals
      estoppel, or the law of the case.                                                and Tax Court




      ATTORNEY FOR APPELLANT
      Lori S. James
      Beaver & Beaver, P.C.
      Rensselaer, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      T.D.,                                                    February 25, 2020
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               19A-DR-1868
              v.                                               Appeal from the Jasper Circuit
                                                               Court
      A.D.,                                                    The Honorable John D. Potter,
      Appellee-Petitioner                                      Judge
                                                               Trial Court Cause No.
                                                               37C01-0504-DR-113



      Crone, Judge.


                                             Case Summary
[1]   T.D. (“Husband”) appeals the trial court’s order (“the Order”), which, among

      other things, denied his request to modify custody, reduced his parenting time,


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1868 | February 25, 2020                   Page 1 of 12
      and modified his child support. He argues that the trial court abused its

      discretion in all three instances. We conclude that Husband has failed to show

      that the denial of his request to modify custody is contrary to law and that the

      trial court abused its discretion as to parenting time. Accordingly, we affirm the

      Order on these issues. However, because we are unable to determine the basis

      for the trial court’s child support award, we reverse that portion of the Order

      and remand with instructions to the trial court to explain the basis for the award

      or if necessary to recalculate Husband’s child support obligation consistent with

      the Indiana Child Support Guidelines.


                                  Facts and Procedural History
[2]   Husband and A.D. (“Wife”) got married in 1991. They had three children:

      M.D., born in June 1992; C.D., born in February 2000; and E.D., born in

      February 2003. Appellant’s App. Vol. 2 at 13. In April 2005, Wife filed a

      petition for dissolution. Id. In November 2005, the trial court entered an order

      dissolving the parties’ marriage. Id. at 58. Pursuant to the dissolution order,

      Husband and Wife were granted joint legal custody of the children, and Wife

      was granted physical custody. Id. at 59-60. Husband was granted visitation “to

      include but not limited to shared parenting time” pursuant to the Indiana

      Parenting Time Guidelines. Id. at 60. In addition, because of Husband’s

      unusual work schedule, the trial court found that he should keep the children

      overnight for two nights on his days off from work each week, “which days off

      change from Monday and Tuesday to Wednesday and Thursday[,]” and

      provide care for the children during the time Wife was working. Id. Husband

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1868 | February 25, 2020   Page 2 of 12
      received credit for 156 overnight visits with the children and was ordered to pay

      weekly child support of $138.00. Id. at 61.


[3]   In November 2008, Husband filed a petition for modification of child support

      alleging a change of work status, income, and parenting time. Appellant’s App.

      Vol. 3 at 6. In February 2009, the trial court issued an order granting

      Husband’s petition for modification of child support and ordering him to pay

      child support of $93.00 per week. Id. at 12.


[4]   In September 2011, Husband filed a petition for modification of child support

      alleging that M.D. had moved out of Wife’s home and was living in Husband’s

      home. Id. at 22. In January 2012, the trial court issued an order granting

      Husband’s petition and ordered him to pay Wife weekly child support of

      $24.00. 1 Following Husband’s motion to reconsider, the trial court found that it

      had erred in its child support calculation and ordered Husband to pay Wife

      $20.00 per week. Id. at 66.


[5]   In January 2019, Husband filed a petition seeking emancipation of C.D., a

      motion to modify custody asking for physical custody of E.D., and a motion to

      modify child support. Appellant’s App. Vol. 4 at 22, 24. In February 2019,

      Wife filed a motion to modify custody alleging that there had been a continuing

      and substantial change in circumstances affecting E.D.’s best interests such that




      1
       Because of the split custody arrangement, Husband’s weekly child support was $78.00 and Wife’s was
      $54.00, but to simplify matters, the trial court offset those amounts and ordered Husband to pay Wife $24.00
      per week. Appellant’s App. Vol. 3 at 49-50.

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1868 | February 25, 2020               Page 3 of 12
      the parties’ equally shared parenting time should be modified. Id. at 31.

      Husband then filed a motion requesting that the trial court conduct an in

      camera interview of then sixteen-year-old E.D., which the trial court granted.

      Id. at 35.


[6]   In April 2019, the trial court held a hearing on the outstanding motions and

      conducted an in camera interview of E.D. Each party submitted a child

      support worksheet. On July 10, 2019, the trial court issued the Order, in which

      it found C.D. emancipated and made the following findings regarding E.D.:


              As to Mother[’s] and Father’s cross Motions to Modify Custody,
              the Court finds that the current Order of the Court alternating
              weeks is no longer in the best interests of the child, [E.D.] [E.D.]
              has to pack her things weekly, which for a teenage girl is a much
              bigger burden than for an elementary school-aged child when this
              original agreement between the parties was executed. The Court
              has examined the statutory factors and finds that the Mother
              should have primary physical custody of the parties’ minor child,
              [E.D.], subject to the Father’s right of visitation at a minimum
              pursuant to the Indiana Parenting Time Guidelines, but the
              Court cautions both parents that visitation is and should be
              flexible, especially with [E.D.’s] busy sports and activity
              schedules. Father lives in a different school district and contends
              that [E.D.] could be driven to a bus stop (a few miles) every
              morning to catch a bus to Rensselaer where she goes and
              participates in varsity sports and other activities. That extra time
              and commute would not be in the best interest of [E.D.], adding
              at least one hour to her school day and moving her from the City
              of Rensselaer where her friends, school, life and activities are
              centered, and have been centered, her entire academic life.
              Adding to the further complication of living with Father is that
              he also lives in a different time zone. [E.D.] gets along with
              everyone, including her parents’ significant others. Father’s

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1868 | February 25, 2020   Page 4 of 12
              concerns about Mother’s boyfriends were not backed by any
              evidence other than his opinion. Father’s complaint about
              Mother and her significant other’s drug use is not as damning as
              Father tried to portray. The marijuana and drug paraphernalia
              found at Mother’s house in a military camouflage bag belonging
              to another family member was found by [E.D.] and
              photographed at her Father’s request over one year ago. The
              Court is concerned with Mother and her significant other using
              marijuana because it is apparent that if and when they are doing
              so, their child knows.


              ….


              Finally, the Court does not reveal in camera conversations with
              children unless required by law or with notice to the child. In
              this case, the Court will reveal that [E.D.] cares about both
              parents, wishes they got along, and wants to live in one place,
              one house, primarily. The Court understands that sentiment and
              agrees.


      Appealed Order at 1-3. The trial court ordered Husband to pay Wife weekly

      child support of $134.00 for the support of E.D. Id. at 3. This appeal ensued.


                                     Discussion and Decision
[7]   As an initial matter, we observe that Wife has not filed an appellee’s brief. In

      such cases, we need not undertake the burden of developing an argument for

      the appellee, and we will reverse the judgment if the appellant presents a case of

      prima facie error, that is “at first sight, on first appearance, or on the face of it.”

      Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006) (quoting Santana

      v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999)).


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1868 | February 25, 2020   Page 5 of 12
[8]   In addition, it appears that the trial court entered sua sponte findings.


              In such a situation, the specific factual findings control only the
              issues that they cover, and a general judgment standard applies to
              issues upon which there are no findings. It is not necessary that
              each and every finding be correct, and even if one or more
              findings are clearly erroneous, we may affirm the judgment if it is
              supported by other findings or is otherwise supported by the
              record. We may affirm a general judgment with sua sponte
              findings on any legal theory supported by the evidence. In
              reviewing the accuracy of findings, we first consider whether the
              evidence supports them. We then consider whether the findings
              support the judgment. We will disregard a finding only if it is
              clearly erroneous, which means the record contains no facts to
              support it either directly or by inference.


      Clary-Ghosh v. Ghosh, 26 N.E.3d 986, 990 (Ind. Ct. App. 2015) (citations and

      quotation marks omitted), trans. denied (2016).


        Section 1 – Husband has failed to show that the denial of his
                request to modify custody is contrary to law.
[9]   Husband contends that the trial court erred in denying his motion to modify

      custody “without considering any differing factors since the prior Court Order.”

      Appellant’s Br. at 6. Here, Wife had been granted physical custody of E.D. in

      the 2005 dissolution order. Under Indiana Code Section 31-17-2-21, a court

      may not modify a child custody order unless (1) modification is in “the best

      interests of the child” and (2) there is a “substantial change” in one of several

      factors that a court may consider in initially determining custody. The party

      seeking modification of a custody order “bears the burden of demonstrating

      [that] the existing custody should be altered.” Steele-Giri v. Steele, 51 N.E.3d 119,
      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1868 | February 25, 2020   Page 6 of 12
       124 (Ind. 2016). “[T]his ‘more stringent standard’ is required to support a

       change in custody, as opposed to an initial custody determinations where there

       is no presumption for either parent because ‘permanence and stability are

       considered best for the welfare and happiness of the child.’” Id. (quoting Lamb

       v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)). Additionally, Indiana appellate

       courts have a well-established preference “for granting latitude and deference to

       our trial judges in family law matters.” Id. (quoting In re Marriage of Richardson,

       622 N.E.2d 178 (Ind. 1993)). We neither reweigh evidence nor reassess witness

       credibility, and we view the evidence most favorably to the judgment. Best v.

       Best, 941 N.E.2d 499, 502 (Ind. 2011).


[10]   Also, because the trial court denied Husband’s petition to modify the custody,

       he appeals from a negative judgment. On appeal from a negative judgment, we

       will not reverse the judgment of the trial court unless it is contrary to law.

       Riggen v. Riggen, 71 N.E.3d 420, 422 (Ind. Ct. App. 2017). The judgment is

       contrary to law only if the evidence leads to but one conclusion and the trial

       court reached the opposite conclusion. Id.


[11]   Husband argues that he introduced evidence of changed circumstances, and

       Wife did not. However, she did not have that burden. Husband’s argument

       fails to persuade us that the evidence leads to only one conclusion, which is the

       opposite of that reached by the trial court.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1868 | February 25, 2020   Page 7 of 12
        Section 2 – Husband has failed to establish that the trial court
            abused its discretion in modifying his parenting time.
[12]   Husband next contends that the trial court erred in modifying parenting time.

       We defer to the trial court on issues of parenting time and will uphold the trial

       court’s determination unless we find an abuse of discretion. Dumont v. Dumont,

       961 N.E.2d 495, 501 (Ind. Ct. App. 2011), trans. denied (2012). A trial court

       does not abuse its discretion as long as its determination is supported by a

       rational basis. Id.


               Thus, it is not enough that the evidence might support some
               other conclusion, but it must positively require the conclusion
               contended by for the appellant before there is a basis for reversal.
               We will not reweigh the evidence or judge the credibility of the
               witnesses. In all parenting time issues, courts are required to give
               foremost consideration to the best interest of the child.


       Id. (citations and quotation marks omitted).


[13]   Indiana has long recognized that the right of parents to visit their children is a

       precious privilege, and thus a noncustodial parent is generally entitled to

       reasonable visitation rights. Perkinson v. Perkinson, 989 N.E.2d 758, 762 (Ind.

       2013). Indiana Code Section 31-17-4-2 provides,


               The court may modify an order granting or denying parenting
               time rights whenever modification would serve the best interests
               of the child. However, the court shall not restrict a parent’s
               parenting time rights unless the court finds that the parenting
               time might endanger the child’s physical health or significantly
               impair the child’s emotional development.


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1868 | February 25, 2020   Page 8 of 12
[14]   Husband first asserts that the trial court abused its discretion in modifying

       parenting time because neither party raised the issue of parenting time. He is

       mistaken. Wife’s February 2019 motion specifically alleged that there had been

       a continuing and substantial change in circumstances affecting E.D.’s best

       interests and requested that the parties’ equally shared parenting time be

       modified. Appellant’s App. Vol. 4 at 31. In addition, Wife testified at the

       hearing that the current parenting time schedule did not provide the appropriate

       schedule for E.D. Tr. Vol. 2 at 47. Wife’s child support worksheet suggests

       that Husband should be granted a credit for parenting time of 104 overnights.

       Appellant’s App. Vol. 4 at 42. This is less than the parenting time credit of 156

       overnights Husband received pursuant to the 2005 dissolution order. Thus,

       Wife clearly raised the issue of parenting time. 2


[15]   Husband also argues that the trial court abused its discretion in modifying his

       parenting time by considering the same factors it used to award him 156 days in

       the 2005 dissolution order. He points out that the parties’ residences have not

       changed since the dissolution and that the trial court mistakenly believed that

       he lived in a different time zone than Wife. It is true that the trial court erred in

       finding that Husband and Wife live in different time zones; although Wife lives

       in Rensselaer and Husband lives in a rural area about seventeen miles away,




       2
          Husband cites Green v. Green, 889 N.E.2d 1243 (Ind. Ct. App. 2008), trans. denied (2009), in which another
       panel of this Court concluded that the trial court abused its discretion by reducing the noncustodial parent’s
       visitation where the issue of parenting time had not been raised. Id. at 1252-53. Here, Wife clearly raised the
       issue of parenting time, and therefore Green is inapplicable.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1868 | February 25, 2020                 Page 9 of 12
Husband has a Rensselaer address and is in the same time zone as Wife.

Nevertheless, even though Husband and Wife’s residences have not changed

since the dissolution, Husband’s argument ignores that as E.D. has grown her

life has changed. When the parties’ marriage was dissolved in 2005, E.D. was a

two-year-old toddler; when the trial court interviewed her, she was a sixteen-

year-old high school student. The Indiana Parenting Time Guidelines

recognize that a child’s age is relevant to setting a reasonable parenting time

schedule based on the child’s best interests. See Ind. Parenting Time Guidelines

§ II (C) - (E) (specific parenting time provisions based on child’s age). Here, the

trial court considered E.D.’s “busy sports and activity schedules” and that “her

friends, school, life and activities” are centered in Rensselaer. Appealed Order

at 2. Husband also ignores that the trial court considered E.D.’s wishes, finding

that she wants to live in “one place, one house primarily.” 3 Id. at 3. We

conclude that Husband has failed to establish that the trial court abused its

discretion in modifying his parenting time. 4




3
  In considering the best interests of the child, more consideration is given to the child’s wishes if the child is
at least fourteen years old. Ind. Code § 31-17-2-8; see also In re Paternity of Snyder, 26 N.E.3d 996, 998 (Ind.
Ct. App. 2015) (applying factor in Ind. Code § 31-17-2-8 to analyze child’s best interests under Ind. Code §
31-17-4-2).
4
  Husband briefly argues that reducing his parenting time was an abuse of discretion because the trial court
did not find that parenting time by the noncustodial parent might endanger E.D.’s physical health or
significantly impair her emotional development. The parenting time awarded by the trial court conforms
with the Parenting Time Guidelines, and so such findings were not required. See Clary-Ghosh, 26 N.E.3d at
991 (“Because the parenting time modifications were consistent with the Parenting Time Guidelines, we do
not believe an endangerment or impairment finding was necessary.”).

Court of Appeals of Indiana | Memorandum Decision 19A-DR-1868 | February 25, 2020                    Page 10 of 12
                 Section 3 – The trial court’s child support award is
                             unsupported by the record.
[16]   Last, Husband contends that the trial court erred in ordering him to pay Wife

       $134.00 each week in child support because the trial court did not explain how

       it calculated that amount. “In any proceeding for the award of child support,

       there shall be a rebuttable presumption that the amount of the award which

       would result from the application of the Indiana Child Support Guidelines is

       the correct amount of child support to be awarded.” Ind. Child Support Rule 2.

       “We will reverse a trial court’s decision in child support matters only if it is

       clearly erroneous or contrary to law.” In re Paternity of C.B., 112 N.E.3d 746,

       757 (Ind. Ct. App. 2018) (quoting Young v. Young, 891 N.E.2d 1045, 1047 (Ind.

       2008)), trans. denied (2019).


[17]   Husband argues that it is unknown how the trial court derived its child support

       obligation of $134.00; there is nothing in the Order as to what weekly gross

       income the trial court imputed to each party, whether it gave Husband credit

       for the health insurance premium he pays for E.D., or what amount of

       overnight credit was provided to Husband. Wife’s child support worksheet lists

       Husband’s weekly gross income as $973.00 and Wife’s weekly gross income as

       $763.00. Appellant’s App. Vol. 4 at 42. Her worksheet provided credits to

       Husband of $22.02 for the health insurance premium he pays for E.D. and for

       104 overnights and calculated a final recommended child support obligation of




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1868 | February 25, 2020   Page 11 of 12
       $79.76. 5 Id. The Order is silent as to how the trial court determined that

       Husband’s child support obligation should be $134.00. We observe that a trial

       court may deviate from the Child Support Guidelines, but if it does so “the

       court shall enter a written finding articulating the factual circumstances

       supporting that conclusion.” Ind. Child Support Rule 3. Accordingly, we

       reverse the child support award and remand with instructions to the trial court

       to articulate its basis for its child support award or if necessary recalculate the

       award in conformance with the Child Support Guidelines.


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


       May, J., and Pyle, J., concur.




       5
         Husband’s child support worksheet lists Husband’s weekly gross income as $855.97 and Wife’s as $724.52.
       Husband’s Ex. C. Because Husband was seeking physical custody of E.D., he proposed that Wife receive a
       parenting time credit for 96-100 overnights and recommended that she pay him child support of $71.00.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1868 | February 25, 2020           Page 12 of 12
