Diamond Z. Wittlief v. Tom Franklin Hirschauer, III (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                  FILED
regarded as precedent or cited before any                                          Oct 23 2020, 9:11 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




APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
Diamond Z. Wittlief                                      Jay T. Hirschauer
Carmel, Indiana                                          Hirschauer & Hirschauer
                                                         Logansport, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Diamond Z. Wittlief,                                     October 23, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-DC-2647
        v.                                               Appeal from the Hamilton
                                                         Superior Court
Tom F. Hirschauer, III,                                  The Honorable Darren J. Murphy,
Appellee-Respondent                                      Magistrate
                                                         Trial Court Cause No.
                                                         29D01-1208-DR-8515



Weissmann, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020           Page 1 of 35
[1]   Diamond K. Wittlief (Mother) and Tom F. Hirschauer, III, (Father), have been

      divorced for many years and, in the seven years since their dissolution decree

      was entered, have continued to litigate myriad disputes at a somewhat

      breathtaking pace. In this appeal (as opposed to the many other appeals filed

      by Mother and dismissed by this Court), Mother appeals the trial court’s order

      relating to the parties’ requests regarding child support, extracurricular

      activities, and uninsured medical expenses. We affirm and remand with

      instructions to: (1) reconsider whether Father should be given an income credit

      for Child’s tuition costs and make findings on the issue as directed herein; and

      (2) reconsider its modification of the extracurricular activities provision of the

      parties’ mediated settlement agreement and make findings regarding Child’s

      best interests as related to extracurricular activities.


                                                     Facts
[2]   Mother and Father were married, and one child (Child) was born of the

      marriage in September 2010. Mother and Father divorced, and on May 6,

      2013, the trial court adopted their mediated settlement agreement, pursuant to

      which the parents shared joint legal custody and Mother had primary physical

      custody. Father received 156 annual overnights with Child.


[3]   In the years following the settlement agreement, the parties continued to litigate

      extensively. At the outset of the hearing from which this appeal stems, the trial

      court noted that “this file has been churned in an incredible way over the last

      few years and it was difficult for me to discern exactly what we’re hearing today


      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 2 of 35
      and when it was filed.” Tr. Vol. II p. 3; see also

id. at 76

(trial court observing

      that Mother is a “prolific filer of motions” and commenting on the “shear [sic]

      frequency of motions that have been filed in this case”). Included in the

      extensive litigation were at least four prior appeals filed by Mother—but she

      failed to perfect any of them, and they were all eventually dismissed.


[4]   Having read the record and the trial court’s order, we agree with the trial court

      that the matters at issue at this time are: “child support, the ratio of contribution

      for extracurricular activities[,] and uninsured medical expenses.” Appealed

      Order p. 1. We will recount only the facts relevant to these specific issues.


[5]   On July 31, 2017, Mother filed a petition for modification of child support.1 In

      relevant part, she argued as follows: (1) Mother and her husband had become

      permanent custodians of another child and she should receive credit for that

      child; (2) Father’s income was higher than the child support calculation

      indicated; (3) Father should not have received credit for providing health

      insurance coverage for Child because he did not provide the insurance card to

      Mother or Child’s healthcare providers; and (4) Mother’s income had

      substantially decreased because of a disability, and at the time of the motion,

      her income consisted solely of Social Security benefits in the amount of $314.50

      per week.




      1
        The motion also included a request to modify parenting time, but the trial court did not consider that issue
      because one of Mother’s appeals, which related to parenting time and custody issues, was still pending at the
      time of the relevant hearings.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020                  Page 3 of 35
[6]   On August 18, 2017, Mother filed a motion to find Father in contempt. In

      relevant part, she argued that Father had failed to pay his portion of Child’s

      extracurricular expenses, failed to provide her with Child’s health insurance

      card, and failed to reimburse Mother for uninsured medical expenses.


[7]   On August 24, 2017, Father filed a motion to find Mother in contempt for

      failing to pay child support. Specifically, she was required by a December 2015

      court order to pay $57 per week, and Father alleged that she had failed to pay

      any child support since October 2016. Mother responded that the December

      2015 order was based on fraud and that the garnishment percentage, which

      amounted to over 50% of her weekly income, exceeded statutory limits.


[8]   There were lengthy discovery-related delays during the litigation of these

      motions. Therefore, on November 28, 2018, the trial court entered an order of

      temporary child support, requiring Father to pay child support in the weekly

      amount of $200 until a final child support order could be entered. On March

      13, 2019, Mother filed a new motion to find Father in contempt, alleging that

      he was $715.25 behind in child support payments as required by the temporary

      order and that he was continuing to fail to pay his share of Child’s

      extracurricular expenses, totaling nearly $700.




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 4 of 35
[9]   The trial court held an evidentiary hearing on the pending motions on February

      4 and July 15, 2019. On October 11, 2019, the trial court issued an order on the

      motions. In relevant part, it found and ordered as follows: 2

                                           I. Extracurricular Expenses


               1.       The parties’ Mediated Settlement Agreement . . . provides
                        that [Child] may participate in three activities one time per
                        week and the parties shall proportionally contribute to the
                        expenses of these activities based on income.


                                                          ***


               3.       [Mother’s] position is that she became unemployed in
                        October 2016 and eventually received disability benefits
                        from the United States Social Security Administration.
                        Thus, the income ratio of 52% for Father and 48% for
                        Mother has changed and should be reconfigured and
                        retroactively applied . . . .


               4.       . . . Father kept his payments at the 52% ratio as
                        ordered . . . [on] December 3, 2015.


                                                          ***




      2
       Normally, we prefer not to quote so extensively from trial court orders. But given the confusing and
      complex nature of these proceedings and the trial court’s thorough exploration of the history and issues
      before it, we believe it appropriate in this case.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020                  Page 5 of 35
        7.       Mother’s request for relief is that the Court retroactively
                 apply a new ratio for payment of extracurricular activities
                 to the date she lost her employment . . . .


        8.       Mother’s motion to modify the payment of extracurricular
                 activities wasn’t even filed until August 18, 2017.


                                                ***


        16.      Father is self-employed. His income is going to fluctuate
                 wildly from year to year. Mother’s income is flat. The
                 only income directly attributable to her is her SSD.


                                                ***


        19.      Father testified that Mother had the child in
                 extracurricular activities as many as 6 days a week at one
                 point. Currently, the child is in extracurricular activities
                 only three days a week but with multiple activities each
                 day.


                                                ***


        23.      The Court finds Father’s law firm distributes salary to
                 Father on a quarterly basis and has since he joined in
                 2015.


                                                ***


        25.      The Court finds that Father pays his share of the
                 extracurricular expenses incurred by his son on a quarterly
                 basis when salary is distributed to him by his law firm.


Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 6 of 35
                                                ***


        28.      The difference between what Father was ordered to pay
                 and what Father actually paid is $156. There was no
                 evidence received by the Court that Father willfully and
                 wantonly disregarded this Court’s order regarding
                 extracurricular activities. There was significant evidence
                 that Mother expected immediate payment . . . despite clear
                 communication to her for years that Father only gets paid
                 on a quarterly basis.


        29.      There was significant evidence that Mother overuses the
                 extracurricular activity provision . . . despite the significant
                 reduction in her income due to being adjudicated disabled.


        30.      Mother’s Motion seeking to hold Father in contempt for
                 nonpayment of extracurricular activities is DENIED. The
                 $156 owed by Father . . . shall be addressed below.


                               II. Uninsured Medical Expenses


                                         a. Nonpayment


                                                ***


        32.      . . . In [the controlling] Order, Mother is responsible for
                 the first $907.92 of uninsured medical expenses for the
                 child. Thereafter, Mother shall pay 43% and Father
                 57% . . . each year.


                                              ***




Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 7 of 35
        34.      Mother seeks payment of uninsured medical expenses
                 dating back to 2016. . . . The Court found [Mother’s
                 supporting] exhibits were hearsay, as they lacked the
                 required business record affidavit, and did not admit the
                 documents. Thus, the Court did not receive evidence
                 upon which the Court could base a decision on how much
                 uninsured medical expenses were incurred by Mother.
                 The Court also did not receive sufficient evidence as to
                 when Mother satisfied the 6% rule for her share . . . .


        35.      Mother further acknowledged that she was unaware
                 Father had paid for some of her claimed uninsured health
                 expenses directly . . . .


                                                ***


        37.      Mother repeatedly stated that she possessed emails
                 explaining to Father when she hit the 6% rule amount and
                 that she provided proof of payment for her expenses to
                 Father for reimbursement. These emails, however, were
                 never offered or admitted for the Court to consider as
                 evidence.


        38.      As a result, Mother’s [claim regarding] uninsured medical
                 expenses fails for lack of evidence . . . .


        39.      Mother’s Motion to find Father in contempt for
                 nonpayment of uninsured medical expenses is DENIED.


                                                ***


                        B.       Failure to Maintain Health Insurance




Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 8 of 35
        40.      . . . Mother claims Father should be held in contempt
                 because he let the health insurance he was ordered to
                 provide [for Child] lapse at some point.


                                                ***


        43.      According to Mother, in March 2018 Father obtained
                 health insurance as required but the insurance only covers
                 emergencies and accidents. It did not cover occupational,
                 speech or physical therapy that the child requires . . . .


                                                ***


        45.      The Court finds that neither the original Decree nor [an
                 order from November 2015] dictate specific types of
                 coverage which must be included in Father’s health
                 insurance plan. Thus, Father cannot be held in contempt
                 by this Court for [] having [a] health insurance plan which
                 does not cover occupational, speech or physical therapy.


                                                ***


        50.      The Court finds that Father’s failure to cover the child
                 with a health insurance plan was related to changing
                 marketplace plans and coverage caused by him leaving
                 government employment, entering a small law firm
                 practice and alteration of coverage by the provider.


        51.      The Court does not find a willful, wanton disregard for
                 [the November 2015 order].


        52.      The Court finds that Mother continued her primary
                 coverage on the child so the child had health insurance


Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 9 of 35
                 throughout the entire time period contained in Mother’s
                 motion.


                                                ***


        54.      Mother’s request to hold Father in contempt is a request
                 without a remedy. Father obtained health insurance again
                 eleven months prior to the first hearing on Mother’s
                 motion. Mother had coverage for the child through
                 Father’s gap period from her subsequent spouse. . . .


        55.      Mother’s motion seeking to hold Father in contempt for
                 not maintaining health insurance is DENIED.


                                        IV. Child Support


                 a. Retroactive Application of New Child Support Amount


        56.      Mother seeks a modification of child support in her
                 August 1, 2017 Motion to Modify backdated to the date she
                 was adjudicated as disabled and started receiving SSD
                 disability income on October 31, 2016.


        57.      The Court is without legal authority to retroactively apply
                 a child support modification for the time period prior to
                 Mother filing her child support modification motion. . . .


                                                ***


        59.      . . . [W]hile this Court may choose to grant Mother’s
                 request for relation back to the filing date of August 1,
                 2017, Mother has no statutory entitlement to such.


Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 10 of 35
        60.      . . . [T]he Court notes Mother remarried in July 2014.
                 Evidence received by the Court indicates Mother’s spouse
                 earns income of between $165,000 and $185,000 during
                 the years this Court was asked to review.


        61.      . . . [T]he Court received evidence regarding Mother’s
                 travel during the time period for which this Court was
                 asked to review which included a trip to the Mexican
                 Riviera in January, 2018, a European vacation in April
                 2018, a trip to Washington, D.C. in May 2018, a trip to
                 New York [C]ity, a multiday trip to California in June
                 2018, and a four week tour of national parks in the western
                 United States in 2018. Mother is not suffering financially.


                                                ***


        65.      Father would be significantly prejudiced by a retroactive
                 application of a child support [recalculation] due to the
                 change in ratios for extracurricular activities, change in the
                 6% rule for uninsured medical expenses and a massive
                 arrearage in child support for a two-year retroactive
                 application.


        66.      Mother has not shown a prejudice to her if the Court does
                 not retroactively apply the modification.


                                                ***


        68.      The Court finds the appropriate date to apply the child
                 support modification is the first Friday after this Order is
                 filed, which is Friday, October 11, 2019.


                                          b. Overnights


Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 11 of 35
                                                ***


        71.      In previous orders and the current controlling child
                 support order, this Court has credited Father with 156
                 overnights.


                                                ***


        75.      Mother . . . hotly disputed the number of overnights that
                 Father should be credited . . . because Father’s expenses
                 for child are in some cases covered by the paternal
                 grandparents.


        76.      . . . Mother’s position is paternal grandparents
                 occasionally feed the child, transport the child and pay for
                 clothing during Father’s parenting time. Therefore,
                 Father’s overnight credit should be reduced[.]


        77.      Father testified that the child, when it is Father’s parenting
                 time, may spend the night with the child’s paternal
                 grandparents once a month or maybe once every other
                 month. . . .


        78.      Mother believes that, because Father is relieved of the
                 expense for feeding and caring for the child during the
                 nights when the child spends the night at paternal
                 grandparents, Father should not receive credit for these
                 overnights. . . .


        79.      Mother also seeks to further reduce Father’s overnight
                 credit because Father and [C]hild hav[e] weekly brunches
                 with paternal grandparents. The evidence is that at these
                 brunches, the paternal grandparents will pay for some if
                 not all of the food used in this meal . . . .

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 12 of 35
        80.      Mother further seeks to reduce Father’s overnight credit
                 because paternal grandmother transports the child . . . and
                 also buys the child clothing.


                                                ***


        83.      The Court finds that any provision of clothing to the child
                 . . . is a de minimus [sic] concern. . . .


        84.      Although it is clear that paternal grandparents contribute
                 to the weekly brunch . . . , the Court finds the evidence
                 insufficient as to how much this meal reduces Father’s
                 costs for caring for the child.


        85.      The same is true for transportation. . . .


        86.      Mother refuses to take into consideration the fact that
                 Father solely pays $561 per month for ten months of the
                 year to educate the child at a private school, St. Luke’s
                 Catholic School. . . . Father also solely pays for the child’s
                 school uniforms . . . . Mother objects to the child
                 attending private school . . . . As education is a controlled
                 expense for which Mother would normally be responsible,
                 and because this controlled expense has now been
                 transferred to Father, the Court feels it appropriate to
                 consider Father’s educational expenses when considering
                 Mother’s request to reduce Father’s overnight credits for
                 assistance he may receive from the paternal grandparents.


        87.      The Court finds Father’s assumption of the controlled
                 expenses for education vastly dwarfs and outweighs any
                 incidental assistance Father may receive from the paternal
                 grandparents . . . .



Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 13 of 35
        88.      The Court finds Father shall continue to receive 156
                 overnights for child support calculation purposes . . . .


                               c. Subsequent Born Child Credit


        89.      Mother . . . requests that she be given credit for a
                 subsequent child . . . .


        90.      [A Kentucky trial court order] placed the daughter of
                 Mother’s current spouse’s cousin with [Mother] and her
                 husband. . . .


                                                ***


        95.      The real dispute in this case is whether the [Kentucky trial
                 court order] constitutes a legal adoption of [S.B.]


                                                ***


        99.      The Court finds the [Kentucky trial court order] does not
                 create a legal adoption. It is equivalent to a CHINS
                 nonparental placement order.


        100. Because [S.B.] was neither born to Mother nor legally
             adopted . . . , the Court is without authority to credit
             Mother with a subsequent child multiplier credit . . . .


                                       d. Father’s Income


        101. Father is self-employed at [a] law firm . . . .




Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 14 of 35
        102. Father testified that he just received his partnership
             Schedule K-1 for calendar year 2018 one week prior to the
             July 15, 2019 hearing. . . . Father’s 2018 K-1 indicates
             Father’s self-employed earnings as $139,826.


        103. Mother obtained Father’s personal bank account
             information through discovery and reported net deposits
             for Father in 2018 as $178,000. Mother requests that the
             Court use $178,000 as Father’s annual gross income for
             child support purposes.


        104. Father testified that the net deposits in his bank account
             include reimbursements from the law firm for expenses he
             incurred during his practice such as deposition costs, etc.
             Father also testified that he received a loan from his
             parents during 2018 to cover Father’s tax debt which was
             deposited into this bank account. . . .


        105. . . . [Father’s] net deposits into his bank account include
             things the Court cannot include in its calculation of child
             support.


        106. The Court finds Father’s testimony that money he received
             from his parents in 2018 [was] a loan to assist Father with
             his tax debt to be credible . . . .


                                                ***


        108. The court finds Father’s weekly gross income is $2,689.
             ($139,826 annually divided by 52 weeks in a year =
             $2,689).


                                                ***


Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 15 of 35
                                       e. Mother’s Income


        110. Mother’s income is as difficult to gauge as Father’s.


        111. Mother was determined to be disabled and began to draw
             SSD in October 2016.


                                                ***


        114. Mother’s $18,038 SSD income annually divided by 52
             weeks a year = $346 a week in income directly attributable
             to Mother.


                                                ***


        125. The Court attributes to Mother only her weekly gross
             income obtained from her SSD benefits in the amount of
             $346 a week.


                                                ***


        130. The Child Support Obligation Worksheet attached to this
             Order recommends that Father shall pay Mother $235.00
             per week in child support.


        131. Mother has satisfied her burden that her disability . . .
             represents a substantial and continuing change of
             circumstances which renders the prior child support order
             unreasonable. The amount of the change in the Court’s
             CSOW is also greater than twenty (20) percent.


        132. The Court finds it necessary to deviate downward from the
             recommended $235 in the CSOW due to Father’s

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 16 of 35
                 assumption of the entire [$5,610] 2018 tuition cost for the
                 child’s education and entire school uniform cost for the
                 child. The Court deviates downward by $35 per week.


        133. Father is ordered to pay mother $200 per week in child
             support effective Friday, October 11, 2019.


        134. The Court notes that it considered Mother’s request to
             reduce her gross weekly income for her own uninsured
             medical expense and rejected it due to the income of her
             household. . . . The Court considered her argument about
             Father’s expenses related to his girlfriend and rejected it as
             those items were not business deductions but were paid for
             with his income earnings which the Court has already
             factored into Father’s gross weekly income calculation.


                            g. Child Support Arrearage for Father


        135. The Court finds Father current with his child support as of
              the date of the last hearing, July 15, 2019. No arrearage is
              found for Father.


                            h. Child Support Arrearage for Mother


        136. The Court finds that Mother, when she was required to
             pay Father support, didn’t pay the support as ordered.
             The Court finds Mother in arrears in the amount of
             $1,953. This evidence was unrebutted.


        137. Father did not ask this Court to find Mother in contempt
             for this arrearage. Father only asks for a credit of $1,953.




Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 17 of 35
               138. The Court credits Father $1,953. Father’s child support
                    obligation will be abated until this credit is reduced to
                    zero.


               It is Therefore Ordered That:


                                                       ***


               9.       The Court orders ¶ 3.04 of the Decree is modified . . . . The
                        Court received bountiful evidence that the child has been
                        placed in way more activities than were ever contemplated
                        at the time of the Decree. Moving forward for all activities
                        for which the child is enrolled after the effective date of
                        this order, Father shall only be responsible for those
                        activities with which he consents in writing prior to
                        enrollment. . . . Mother may choose to enroll the child in
                        activities for which Father doesn’t consent but she shall be
                        solely responsible for the costs of that activity without
                        contribution from Father.


       Appealed Order p. 1-38 (emphases original, some internal citations omitted).

       Mother now appeals.


                                    Discussion and Decision
[10]   Mother argues that the trial court erred in multiple ways with respect to its

       calculation of child support and its rulings related to Child’s extracurricular

       activities and uninsured medical expenses.


[11]   Our Supreme Court has articulated the well-established standard of review for

       family law matters as follows:



       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 18 of 35
                When reviewing judgments with findings of fact and conclusions
                of law, Indiana’s appellate courts “shall not set aside the findings
                or judgment unless clearly erroneous, and due regard shall be
                given to the opportunity of the trial court to judge the credibility
                of the witnesses.” Ind. Trial Rule 52(A). Appellate judges are not
                to reweigh the evidence nor reassess witness credibility, and the
                evidence should be viewed most favorably to the
                judgment. Findings are clearly erroneous only when the record
                contains no facts to support them either directly or by
                inference. Appellate deference to the determinations of our trial
                court judges, especially in domestic relations matters, is
                warranted because of their unique, direct interactions with the
                parties face-to-face, often over an extended period of time. Thus
                enabled to assess credibility and character through both factual
                testimony and intuitive discernment, our trial judges are in a
                superior position to ascertain information and apply common
                sense, particularly in the determination of the best interests of the
                involved children.


       Best v. Best, 

941 N.E.2d 499

, 502 (Ind. 2011) (some internal citations and

       internal quotation marks omitted). As always, we apply a de novo standard of

       review to issues of law. Redd v. Redd, 

901 N.E.2d 545

, 549 (Ind. Ct. App.

       2009).


                                           I. Child Support
[12]   On the issue of child support, Mother argues that the trial court erred in

       calculating her income and the credits due to her, calculating Father’s income

       and the credits due to him, and finding that Father does not have, and Mother

       does have, a child support arrearage.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 19 of 35
                              A. Mother’s Income and Credits
                                              1. Retroactivity
[13]   There is no dispute that Mother has been disabled and unable to work since

       October 2016. The only income she receives is her Social Security Disability

       benefits, which totaled $18,038 (or $346 per week) in 2018.3 The trial court

       attributed to Mother a weekly income of $346, with which she does not quarrel.


[14]   What Mother does find fault with, however, is the trial court’s refusal to apply

       this income retroactively to October 31, 2016, the date of her disability. The

       trial court observed that Mother did not file her petition to modify child support

       until July 31, 2017. As such, the very earliest that the income calculation could

       apply retroactively is July 31, 2017. See Becker v. Becker, 

902 N.E.2d 818

, 820

       (Ind. 2009) (holding that “[t]he modification of a support obligation may only

       relate back to the date the petition to modify was filed, and not an earlier

       date”).


[15]   Becker holds that modification retroactive to a date prior to filing of the petition

       to modify is permitted in two instances: (1) when the parties have agreed to and

       carried out an alternative method of payment which substantially complies with

       the spirit of the decree; or (2) the obligated parent takes the child into the

       obligated parent's home and assumes custody, provides necessities, and



       3
        Father argued below that the income of Mother’s husband should be imputed to her. The trial court,
       however, declined to do so, see Appealed Order p. 32-33, and Father did not appeal that portion of the order.
       Therefore, we will not consider that issue.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020                Page 20 of 35
       exercises parental control for a period of time that a permanent change of

       custody is exercised.

Id. Mother relies on

neither of those instances in arguing

       for an exception to our well-settled rule prohibiting retroactive modification of

       child support. The trial court did not err.


                             2. Subsequent Born Child Credit
[16]   Next, Mother argues that the trial court erred by refusing to give her a credit for

       a subsequent born or adopted child. According to Mother, S.B. is her

       husband’s cousin’s daughter. S.B. was in the custody of the Department of

       Child Services in Kentucky and was part of a child in need of services case. She

       was placed in relative care with Mother and her husband in January 2016, and

       in June 2016, the Kentucky family court entered an order awarding permanent

       custody of S.B. to Mother and her husband. Tr. Ex. Vol. IV p. 45-47. The

       order was not an adoption order—Mother and her husband are S.B.’s

       permanent custodians, not her adoptive parents.


[17]   Indiana Child Support Guideline 3C(1) provides that a parent’s weekly income

       shall be adjusted for “parents who have a legal duty or court order to support

       children [] born or legally adopted subsequent to the birthdates(s) [sic] of the

       child(ren) subject of the child support order . . . .” Mother argues that her

       weekly income should be adjusted based on S.B.’s placement in her permanent

       custody.


[18]   We cannot agree. The plain language of this guideline refers only to

       “Subsequent-born or Legally Adopted Child(ren),” and makes no mention of

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 21 of 35
       any other custody arrangements that would qualify for the adjustment. Child

       Supp. G. 3C(1). Had our Supreme Court intended to encompass situations

       beyond subsequently born or legally adopted children, it could have done so.

       Given that it did not, the trial court did not err by denying Mother’s request for

       a credit based on the permanent custody order.


         3. Credit for Mother’s and Child’s Uninsured Medical
                               Expenses
[19]   Next, Mother argues that the trial court erred by denying her request to adjust

       her weekly income based on her own and Child’s substantial uninsured medical

       expenses. She directs our attention to Child Support Guideline 3D(3), which

       indeed permits a parent’s income to be adjusted for extraordinary health care

       expenses.


[20]   With respect to Child’s uninsured medical expenses, Mother does not shoulder

       that burden alone. Father pays a share of those expenses that is proportionate

       to the parties’ incomes and, as we find below, there is no evidence that he has

       been anything other than current with respect to paying his portion.


[21]   With respect to Mother’s own expenses, she testified that her uninsured medical

       expenses average approximately $1,840 per year. The trial court “considered

       Mother’s request to reduce her gross weekly income for her own uninsured

       medical expense[s] and rejected it due to the income of her household.”

       Appealed Order p. 35. As noted above, while the evidence in the record is not

       wholly clear on the precise income made by Mother’s husband, it is clear that

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 22 of 35
       he earns enough money to keep Mother and Child comfortable and to maintain

       the standard of living to which Child was accustomed prior to the divorce. And

       as always, decisions that require weighing the evidence are solidly within the

       trial court’s discretion. See 

Best, 941 N.E.2d at 502

. We find that the trial court

       did not err by deciding not to credit Mother for her own or Child’s uninsured

       medical expenses.


                                B. Father’s Income and Credits
                                                     1. Income
[22]   Mother argues that the trial court erroneously calculated Father’s income.

       Father is self-employed as a partner at a law firm. Father offered into evidence

       his Schedule K-1 for calendar year 2018, which showed that he earned $139,826

       in 2018. The trial court found, based on the K-1, that Father’s weekly income

       totals $2,689 ($139,826 divided by 52 weeks in a year).


[23]   Mother argues that the trial court should have recalculated Father’s income

       based on evidence she offered showing net deposits in Father’s bank account in

       2018 totaled $178,000. Therefore, she maintains that Father’s annual income

       should be $178,000 rather than $139,826.4


[24]   Father explained that the following transactions are included in those deposits:




       4
         Mother also argued that money given to Father by his parents in 2017 for a down payment on a house
       should be factored in. But the trial court noted that because it was not applying its calculation retroactively,
       it would focus only on the parties’ 2018 income. We find no error in this regard.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020                   Page 23 of 35
           • Reimbursement from the law firm for business expenses, such as
             deposition costs.
           • A 2018 loan from his parents to cover Father’s tax debt.

       The trial court agreed that business expense reimbursements may not be

       included in a child support calculation. And the court specifically found

       credible Father’s testimony that the money he received from his parents was a

       loan because: (1) at least two checks show he repaid some money to his parents;

       and (2) Father is a licensed attorney who would risk professional ramifications

       if he lied in court. We cannot and will not second-guess the trial court’s

       assessment of Father’s credibility. Aside from the bank account statements, the

       only evidence regarding Father’s income was the Schedule K-1, and the trial

       court did not err by relying on the income reflected in that document in

       calculating Father’s income for child support purposes.


                                    2. Credit for Overnights
[25]   Next, Mother argues that the trial court erroneously calculated the number of

       annual overnights that Father has with Child. See Ind. Child Support Guideline

       6 (providing that a “credit should be awarded for the number of overnights each

       year that the child(ren) spend with the noncustodial parent”). The

       Commentary to Child Support Guideline 6 notes that an overnight should

       include “the costs of feeding and transporting the child, attending to school

       work and the like. Merely providing a child with a place to sleep in order to

       obtain a credit is prohibited.”




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 24 of 35
[26]   Mother does not seem to dispute that Child actually spends the night with

       Father for approximately 156 nights per year. Instead, she argues that the

       number should be downgraded because of the following assistance provided by

       Child’s paternal grandparents:


           • Child occasionally spends the night with his paternal grandparents
             during Father’s parenting time. This occurs approximately once a month
             or once every other month.
           • Father and Child have weekly brunch with paternal grandparents, who
             sometimes pay for some or all the food for those meals.
           • Paternal grandmother drives Child to Mother’s house in the morning
             after Father’s parenting time and picks Child up from his occupational
             therapy appointments.
           • Paternal grandmother occasionally buys Child clothing.

       Mother argues that Father’s parenting time should be reduced by eighteen

       overnights for the time Child spends at paternal grandparents’ house and by

       another fifty overnights for the brunches, transportation, and clothing.


[27]   This evidence certainly shows that paternal grandparents and Child have a

       strong bond, that they love him and their son, and that they are there as a

       support for the family unit. This evidence does not show that Father is “merely

       providing the child with a place to sleep” during his parenting time. Child

       Supp. G. 6 Cmt. Moreover, even if the evidence more compellingly showed

       that paternal grandparents were providing a substantial financial help to

       Father’s support of Child, there is no evidence in the record showing how much

       the overnights, weekly brunches, transportation help, and clothing purchases




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 25 of 35
       actually reduce Father’s costs of caring for Child. 5 Therefore, we find no error

       with respect to the trial court’s denial of Mother’s request to decrease the

       number of overnights Father is credited for spending with Child.


                                           3. Credit for Tuition
[28]   Next, Mother argues that the trial court erred by giving Father credit for the

       tuition he pays for Child to attend a private school. The trial court noted that

       Father assumed “the entire [$5610] 2018 tuition cost for the child’s education

       and entire school uniform cost for the child.” Appealed Order p. 34. As a

       result of that credit, the trial court deviated downward from what the Child

       Support Worksheet showed Father’s weekly support obligation would be—

       $235—to a total of $200 per week.


[29]   Mother objects to Child’s enrollment at the private school. Mother lives in

       Carmel, which she believes has a public school system that can provide a

       comparable education at little to no cost. Therefore, she insists that Father

       should not be credited for this substantial expense, which she believes is

       unnecessary.


[30]   Indiana Child Support Guideline 8 provides that extraordinary educational

       expenses for elementary or secondary education may be factored into the




       5
         The trial court also notes that Father has assumed the sole responsibility of paying for Child’s private school
       tuition and uniforms, which totals over $5610 per year. This evidence shows that Father is far from shirking
       his financial obligation to care for Child—if anything, he is going above and beyond what is required.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020                   Page 26 of 35
       parents’ respective child support obligations. The Commentary states that “[i]f

       the expenses are related to elementary or secondary education, the court may

       want to consider whether the expense is the result of a personal preference of

       one parent or whether both parents concur . . . and whether or not education of

       the same or higher quality is available at less cost.” See also Sims v. Sims, 

770 N.E.2d 860

, 864 (Ind. Ct. App. 2002) (remanding child support order to trial

       court where trial court awarded extraordinary educational expenses but did not

       enter written findings in support of the order).


[31]   While Guideline 8 does not explicitly require the trial court to consider the

       above factors, we believe it is the best practice to do so, especially in a case like

       this one where: (1) Father apparently concedes that the quality of education

       offered by the Carmel public school system is equivalent to that offered by

       Child’s private school; and (2) the trial court’s order resulted in a deviation

       downward from the amount reflected in the Child Support Worksheet.

       Therefore, we are remanding with instructions for the trial court to make

       explicit findings on (1) the personal preferences of Mother and Father as to

       Child’s education; (2) the respective quality of education provided by the

       Carmel public school system and the private school that Child attends; (3) the

       best interests of Child as related to education; and (4) if the trial court still

       provides Father with a weekly credit of $35, a rationale for that decision, given

       Mother’s objections.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 27 of 35
                                      C. Mother’s Arrearage
[32]   Before Mother became disabled, she was employed and required to pay child

       support. It is undisputed that she is in arrears in the amount of $1,953. As

       noted above, the trial court may not apply a retroactive change in child support

       relating back to a date prior to the filing of the motion to modify. Furthermore,

       it is well established that “after support obligations have accrued, a court may

       not retroactively reduce or eliminate such obligations.” 

Becker, 902 N.E.2d at 820

.


[33]   Mother argues that after she lost her employment in 2016, her weekly child

       support payments exceeded 50% of her disposable income, which violates a

       federal statute. Had she filed a motion to modify at that time and made that

       argument, her argument may well have succeeded. But because she did not do

       so, she accrued an arrearage that may not now be abated.

Id. Therefore, the trial

court did not err by awarding a credit to Father in the amount of Mother’s

       arrearage.


                               D. Father’s Alleged Arrearage
[34]   While these matters were pending, the trial court entered an order requiring

       Father to pay temporary child support in the amount of $200 per week. Mother

       alleges that Father was in arrears on those payments. The trial court found that

       as of the time of the hearing, Father was current on child support with no




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 28 of 35
       arrearage. There is no evidence in the record that Father had an arrearage at

       the time of the hearing; therefore, the trial court did not err on this basis.6


                                 II. Extracurricular Activities
                       A. Contempt for Alleged Failure to Pay
[35]   Next, Mother argues that the trial court erred by declining to hold Father in

       contempt for his alleged failure to pay his share of Child’s extracurricular

       activities. The parents’ income ratio determines their share of the

       extracurricular activities. Between November 30, 2015 (when the trial court

       entered an order changing the ratio), and August 18, 2017, when Mother filed

       her motion to modify the ratio, Father was to pay 52% of the cost and Mother

       was to pay 48%.


[36]   At the hearing, the parties stipulated that during that timeframe, the total

       amount of Child’s extracurricular activities was $5,231.10, and that Father had

       paid $2,564.17. The difference between what Father actually owed ($2,720.17)

       and what he paid was $156. The trial court reviewed and weighed the evidence

       and found no indication that Father had willfully and wantonly disregarded the

       order requiring him to pay 52% of Child’s extracurricular expenses. Nothing in

       the record causes us to question this assessment. Therefore, we decline to




       6
        Mother seems to argue that while Father was not in arrears, his payments were frequently late. She
       apparently believed that his payments were due on Wednesdays, while Father believed his payments were
       due on Fridays. Regardless of that discrepancy, it is undisputed that Father was fully up to date in his
       obligation at the time of the hearing.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020              Page 29 of 35
       reverse the trial court’s denial of Mother’s request to hold Father in contempt

       with respect to extracurricular expenses.7


                                B. Retroactivity of New Ratio
[37]   Next, Mother argues that the new ratio of their respective incomes should be

       applied retroactively to the date of her disability (nearly one year before she

       filed the motion to modify the payment of extracurricular activities). For the

       reasons expressed above regarding retroactivity of Mother’s income with

       respect to her child support obligation, the trial court did not err by declining to

       do so.


                                    C. Modification of Decree
[38]   Mother next argues that the trial court erred by sua sponte modifying their decree

       of dissolution with respect to Child’s extracurricular activities. Leading up to

       the modification, the trial court found as follows:


                18.      . . . the child is now participating in way more numerous
                         extracurricular activities than listed in the Mediated
                         Agreement, including Goldfish, gymnastics, Spanish
                         language (in addition to Lithuanian as set out in the
                         Mediated Agreement), horseback riding, Grand Champion
                         Equipment, village music, Shortee’s golf, Chess,
                         basketball, fishing frenzy camp, Minecraft Coding Camp,
                         and fencing.




       7
         Ultimately, the trial court deducted $156 from the amount of Mother’s child support arrearage; therefore,
       the trial court ensured that Father’s obligation was satisfied in full.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020                Page 30 of 35
        19.      Father testified that Mother had the child in
                 extracurricular activities as many as 6 days a week at one
                 point. . . .


        20.      Father testified that he did not consent to some of the
                 activities in which his child participated. The child was
                 enrolled in the protested activity anyway. Father still paid
                 for some of the activities despite his protest.


                                                ***


        29.      There was significant evidence that Mother overuses the
                 extracurricular activity provision in the parties[’] Mediated
                 Agreement despite the significant reduction in her income
                 due to being adjudicated disabled.


Appealed Order p. 6, 8 (emphases original). Based on these findings, the trial

court ordered as follows:


        9.       The Court orders ¶ 3.04 of the Decree is modified based on
                 overreliance of Mother on the ‘some other equivalent
                 activity of the same or lesser cost’ language in this
                 provision. The Court received bountiful evidence that the
                 child has been placed in way more activities than were
                 ever contemplated at the time of the Decree. Moving
                 forward for all activities for which the child is enrolled
                 after the effective date of this order, Father shall only be
                 responsible for those activities with which he consents in
                 writing prior to enrollment. Any interpretation of the
                 parties or language in ¶ 3.04 of the Decree which requires
                 Father to agree to a minimum of three activities at any one
                 time is vacated. Mother may choose to enroll the child in
                 activities for which Father doesn’t consent but she shall be



Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 31 of 35
                         solely responsible for the costs of that activity without
                         contribution from Father.

Id. at 38

(emphases original).8


[39]   The decree of dissolution incorporated the parents’ mediated settlement

       agreement. Generally, a trial court may modify a mediated settlement

       agreement in a family law case if it finds that the modification is in the child’s

       best interests. See Moell v. Moell, 

84 N.E.2d 741

, 744 (Ind. Ct. App. 2017)

       (holding that settlement agreement involving child-related matters may be

       modified and that “the court’s paramount concern” is “the best interests of the

       children”).


[40]   Here, while the trial court found that Mother was enrolling Child in more

       extracurricular activities than originally contemplated by the parties, the court

       sua sponte modified the parties’ settlement agreement without making findings

       as to what is in Child’s best interests. Therefore, we remand with instructions

       that the trial court consider what is in Child’s best interests with respect to

       extracurricular activities and issue related findings and conclusions thereon.




       8
         This issue would have been a much closer call had the trial court used the decree as a starting point by
       ordering that for every extracurricular activity above and beyond the three agreed-upon activities, Father has to
       consent in writing, but that he must still agree to (and help pay for) the first three. That, however, is not what
       the trial court’s order says. In fact, it goes so far as to say that “[a]ny interpretation” of the original decree
       “which requires Father to agree to a minimum of three activities at any one time is vacated.” Appealed
       Order p. 38.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020                    Page 32 of 35
                     III. Child’s Uninsured Medical Expenses
                      A. Contempt for Alleged Failure to Pay
[41]   Mother contends that the trial court erred by denying her request to hold Father

       in contempt for his alleged failure to pay his share of Child’s uninsured medical

       expenses. Mother is responsible for the first $907.92 of the uninsured medical

       expenses each year; after that, she pays 43% and Father pays 57%.


[42]   A determination of whether a party is in contempt is within the trial court’s

       sound discretion, and we will reverse only where there has been an abuse of

       that discretion. Bessolo v. Rosario, 

966 N.E.2d 725

, 730 (Ind. Ct. App. 2012).

       An abuse of discretion occurs where the trial court’s ruling is against the logic

       and effect of the facts and circumstances before the court.

Id. [43]

  Mother proffered certain documents purporting to show the amount of Child’s

       uninsured medical expenses from 2016 to 2018 as well as emails she claimed to

       have sent to Father seeking reimbursement. None of this evidence was

       admitted at trial and therefore does not support Mother’s contention that the

       Father should be held in contempt.


[44]   Mother notes that she is a pro se litigant, but pro se parties are held to the same

       standards as attorneys. E.g., Goossens v. Goossens, 

829 N.E.2d 36

, 43 (Ind. Ct.

       App. 2005). The simple fact of the matter is that the trial court had no

       admissible evidence to consider that supported Mother’s claims. Therefore, the

       trial court did not err by denying Mother’s request to hold Father in contempt

       on this basis.
       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 33 of 35
                  B. Contempt for Alleged Failure to Maintain
[45]   Finally, Mother argues that the trial court should have held Father in contempt

       for his failure to maintain health insurance for Child during a time when he was

       court ordered to do so. In December 2015, the trial court ordered both parents

       to continue to carry health insurance for the Child because they each claimed

       that their policy was superior to the other’s. When Father joined the law firm

       in 2015, he obtained health insurance as required. His policy was through the

       marketplace and he learned at some point that all of Child’s healthcare

       providers were out of network on his plan. Because the policy was very

       expensive and did not provide useful coverage, he cancelled it. There is no

       evidence in the record as to when he cancelled it. In March 2018, Father

       purchased a new policy that covers emergencies, accidents, and dental and

       orthodontic work. It does not cover occupational, speech, or physical therapy.


[46]   As for the gap in coverage, there is no evidence in the record as to how long of

       a gap it was. And nothing in the record causes us to second-guess the trial

       court’s assessment that the reason Father cancelled his policy was related to

       changing marketplace plans and a change of employer. Given this record, we

       find no error with respect to the trial court’s conclusion that Father did not

       willfully or wantonly disregard the December 2015 order. See 

Bessolo, 966 N.E.2d at 730

.


[47]   As for the quality of Father’s current plan, we agree with the trial court that

       nothing in the December 2015 order required a specific type of coverage. As


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 34 of 35
       such, there is no basis to hold Father in contempt for having a plan that does

       not cover occupational, speech, or physical therapy.


[48]   We also note, as did the trial court, that Mother always had a health insurance

       policy in place that provided coverage to Child, meaning that there was no gap

       in coverage for Child. And Mother offered no admissible evidence tending to

       show that she paid more without Father’s secondary coverage during the period

       when his coverage lapsed. The same holds true for her claim that Father failed

       to provide her with a health insurance card. For all these reasons, the trial

       court did not err by denying Mother’s request to hold Father in contempt for

       failing to maintain health insurance coverage for Child.


                                                Conclusion
[49]   The judgment of the trial court is affirmed and remanded with instructions to:

       (1) reconsider whether Father should be given an income credit for Child’s

       tuition costs and make findings on the issue as directed herein; and

       (2) reconsider its modification of the extracurricular activities provision of the

       parties’ mediated settlement agreement and make findings regarding Child’s

       best interests as related to extracurricular activities.


       Bailey, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2647 | October 23, 2020   Page 35 of 35
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