Court of Appeals of Indiana | Memorandum Decision 48A04-1407-DR-322 | April 13, 2015 Page 1 of 12

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Paul J. Podlejski

Anderson, Indiana

ATTORNEY FOR APPELLEE

Cynthia P. Helfrich

Helfrich Law Offices

Brownsburg, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

R.S.,

Appellant-Respondent,

v.

A.S.,

Appellee-Petitioner

April 13, 2015

Court of Appeals Case No.

48A04-1407-DR-322

Appeal from the Madison Circuit 

Court

The Honorable Thomas Newman, 

Jr., Judge 

Cause No. 48C03-1109-DR-672

Bailey, Judge.

Case Summary

[1] R.S. (“Father”) appeals a post-dissolution order denying Father’s request for 

modification of child support payable to A.S. (“Mother”). Additionally, he 
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challenges the trial court’s sua sponte suspension of his parenting time with 

Ga.S. and Gr.S. (collectively, “the Children”). We reverse.

Issues

[2] Father presents two issues for review:

Whether the trial court violated statutory authority when it suspended 

parenting time without a finding of endangerment to the Children; and

Whether the trial court abused its discretion in calculating child support.

Facts and Procedural History

[3] Mother and Father were divorced on May 24, 2012. The dissolution decree 

incorporated their agreement that Mother would have custody of the Children;

Father would exercise parenting time according to Mother’s wishes; Father 

would pay $225.00 weekly as child support; and the parents would share fiftyfifty the medical, clothing, and extra-curricular expenses of the Children.

[4] On June 21, 2013, Father filed a Petition to Modify Support and to Establish 

Parenting Time. Mother filed a petition for contempt. On August 14, 2013, the 

trial court issued an interim order providing that Father was to exercise 

parenting time each weekend from the time he left work on Saturday until 6:00 

p.m. on Sunday.
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[5] On December 5, 2013, the parties appeared for a hearing at which both parents 

and a child therapist testified. Father testified that he was the custodial parent 

of a teenager, he typically provided health insurance for all three of his children, 

he worked as a landscaper, and he had rental property and sold trees as a small 

side business. Mother testified that she was a dental hygienist who did “fill-in” 

work but was not then looking for work.1 (Tr. 97.) She further testified that she 

lived with the Children, her fiancée, and his two children, aged six and ten. 

Mother expressed her opposition to Father having the Children for more than 

one night; she testified that Father had appeared to be under the influence of 

alcohol during some prior exchanges of the Children.

[6] After the hearing, Mother successfully sought a change of judge. The hearing 

resumed on May 2, 2014, with the parties agreeing that the new trial court 

judge would also review the evidence presented on December 5, 2013.

[7] On May 2, 2014, Mother testified. She testified that some of her concerns had 

been obviated and she assented to Father having Indiana Parenting Time 

Guideline-based parenting time, with certain requested deviations.2 She 

expressed her belief that the agreed-upon child support did not deviate by more 

than 20% from a Guideline-based award. She offered that, if the trial court 

 

1 According to Father’s testimony, Mother performs work at the office of her fiancée, a dentist. Mother did 

not corroborate or dispute the testimony that her fiancée was also her employer.

2 Mother wanted Father to be ordered to transport the Children to extra-curricular activities during his 

parenting time, and to refrain from exercising extended parenting time in the summer if his landscaping work 

involved lengthy hours. She also requested an order that Father consume no alcohol or drugs during 

parenting time.
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would leave the current child support award in place, she would pay the 

controlled expenses (such as clothing) for the Children and would pay the first 

6% of their medical expenses. During Mother’s testimony, the trial court made 

inquiries and ascertained that Father had not recently3completed a parenting 

class called Children in the Middle.

[8] At the conclusion of the testimony, the trial court announced:

before we close the records I want to make a ruling. Because the father 

has not taken nor completed the Children in the Middle Program the 

Court suspends his visitation until he completes the Program two 

times, and further writes an essay which shall be presented to the 

court. In which should cover the following areas: behaviors that I was 

engaged in that were detrimental to the well being and proper 

development of the children and facilitating visitation; what changes I 

have made regarding my behavior and attitude towards my children 

and relationship with the children’s mother. After the Court reads the 

essay from the father a hearing will be set to determine an appropriate 

visitation if any.

(Tr. 70-71.)4 On June 20, 2014, the trial court issued its findings of fact, 

conclusions thereon, and order. The order provided that Father’s parenting 

time was suspended “pending further hearing” and that Father’s basic child 

support obligation would not be modified. At the same time, the trial court 

 

3

Father professed to have completed this program during his prior divorce; Mother testified that she and 

Father had not agreed that this was sufficient, and a current class was anticipated and appropriate.

4

Father’s counsel sought to clarify the order and the basis for repetition, to which the trial court responded: 

“Because I said so.” (Tr. 71.) 
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adopted Mother’s proposal that she pay controlled expenses and the first 6% of 

the Children’s medical expenses. This appeal ensued.

Discussion and Decision

Standard of Review

[9] When, as here, a trial court enters findings of fact and conclusions of law 

pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of review

for clear error; that is, first, we determine whether the evidence supports the 

findings, and second, whether the findings support the judgment. Mysliwy v. 

Mysliwy, 953 N.E.2d 1072, 1075-76 (Ind. Ct. App. 2011) (citations omitted), 

trans. denied. We do not reweigh the evidence, but consider the evidence 

favorable to the judgment. Id. Findings of fact are clearly erroneous when the 

record contains no facts to support them and a judgment is clearly erroneous if 

no evidence supports the findings, the findings fail to support the judgment, or 

if the trial court applies an incorrect legal standard. Bowyer v. Ind. Dep’t of 

Natural Res., 944 N.E.2d 972, 983-84 (Ind. Ct. App. 2011). Although we review 

findings under the clearly erroneous standard, we review conclusions of law de 

novo. Id. at 983.

Parenting Time

[10] Father sought Guideline-based parenting time, and Mother testified that she 

was in agreement with this, although she requested that the grant of such 

parenting time be accompanied by giving her a right of first refusal to care for 
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the Children5 and by certain admonitions to Father. She requested that Father 

complete a class prescribed by a local rule, that is, Children in the Middle. The 

trial court sua sponte suspended Father’s parenting time until he completed the 

class twice, presented a detailed essay to the trial court, and appeared at a future 

hearing. In so doing, the trial court ignored the wishes of the parents, penalized 

the Children and extended family members, contravened relevant statutory 

authority, and ignored Father’s Constitutional rights.

[11] A parent has a constitutional right to raise his or her children. Lang v. Starke 

Cnty. Office of Family & Children, 861 N.E.2d 366, 371 (Ind. Ct. App. 2007). A 

non-custodial parent does not forfeit his or her right to parent; rather, the right 

of a non-custodial parent to spend time with his or her children is protected as a 

“precious privilege.” Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App. 

2006), trans. denied. “Ideally, a child should have a well-founded relationship 

with each parent.” Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct. App. 

2003).

[12] Accordingly, the restriction or denial of parenting time is circumscribed by 

Indiana Code Section 31-17-4-2, which provides:

 

5 The Indiana Parenting Time Guidelines impose a preference for parental childcare, such that a noncustodial parent is given the opportunity for additional parenting time when the custodial parent is regularly 

unavailable. Shelton v. Shelton, 835 N.E.2d 513, 517 (Ind. Ct. App. 2005). Mother observed that Father’s 

work schedule could cause him to work very long hours in the summer, whereas she was available to parent. 

She also desired that the Children not be left for extended periods of time in the care of their paternal 

grandmother, who lives with Father and has Multiple Sclerosis. Accordingly, Mother wanted a right of first 

refusal akin to that granted a non-custodial parent.
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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.

Although the statute uses the word “might,” this Court has interpreted the 

language to mean that a court may not restrict parenting time unless that 

parenting time “would” endanger the child’s physical health or emotional 

development. D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct. App. 2009). A 

party who seeks to restrict a parent’s visitation rights bears the burden of 

presenting evidence justifying such a restriction. Id.

[13] Here, the trial court articulated no specific finding that parenting time would 

cause harm to the Children when issuing its sua sponte order. The trial court 

did not address the impact upon the Children of the abrupt and indefinite 

suspension of time with Father (and his household members, which included an 

older sibling and a grandmother suffering declining health due to Multiple 

Sclerosis). Although the trial court was quite upset with Father’s reluctance to 

repeat the class he had apparently taken during his prior divorce, Father’s

history of interaction with the Children does not approach the egregious 

circumstances in which we have previously found that parenting time may be 

terminated, such as when a parent sexually molests a child. See Duncan, 843 

N.E.2d at 972.

[14] Clearly, our parenting time statute does not provide for the elimination of 

parenting time because the trial court has decided “I say so.” (Tr. 71.) We 
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reverse the parenting time suspension. We remand the matter to the trial court 

for an order of Guideline-based parenting time, as contemplated by the parents, 

and for consideration of the admonitions requested by Mother.

Child Support

[15] Father argues that the trial court erred in determining that his child support 

should remain at $225.00 weekly. Specifically, he contends that the trial court 

abused its discretion by disregarding his financial obligation for his first-born 

child, disallowing a deduction for health insurance for the Children, and failing 

to impute greater-than minimum wage income to Mother.

[16] A trial court’s calculation of child support under the Indiana Child Support 

Guidelines (“Guidelines”) is presumptively valid and we will reverse a decision 

in child support matters only if it is an abuse of discretion, that is, when the trial 

court misinterprets the law or the decision is clearly against the logic and effect 

of the facts and circumstances that were before the court. Sandlin v. Sandlin, 972 

N.E.2d 371, 375 (Ind. Ct. App. 2012).

[17] Pursuant to Indiana Code Section 31-16-8-1(b), a child support order may be 

modified:

(1) upon a showing of changed circumstances so substantial and 

continuing as to make the terms unreasonable; or

(2) upon a showing that:

(A)a party has been ordered to pay an amount in child support that 

differs by more than twenty percent (20%) from the amount that 

would be ordered by applying the child support guidelines; and
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(B) the order requested to be modified or revoked was issued at least 

twelve (12) months before the petition requesting modification was 

filed.

[18] The trial court concluded that a 20% deviation had not been established. In so 

doing, the trial court apparently adopted Mother’s Child Support Worksheet. 

Mother’s worksheet assigned to her minimum wage income of $290.00 per 

week. The worksheet also assigned income to Father of $1,241.32 per week. 

As detailed on a separate exhibit, this consisted of Father’s landscaping wages, 

unemployment income, farm rental income (with depreciation added back), 

gross residential rental income (although the mortgages exceeded the rental 

payments) and gross income from a tree-growing endeavor (with no 

corresponding deduction for expenses).6 

[19] In addition to the implicit adoption of Mother’s worksheet, the trial court 

articulated its unwillingness to give Father any credit for expenses of a priorborn child (despite Mother’s concession that Father in fact had sole custody of 

his teenaged child) or any credit for payment of health insurance (although both 

Mother and Father acknowledged Father’s responsibility for health insurance 

premiums and he had requested an extremely modest deduction of $17.00 per 

week from his gross income). The child support order essentially left the prior 

 

6 Trail courts are vested with discretion to determine which business expenses are deductible for calculating 

the child support obligation of self-employed parents, but the court must engage in a careful review of the 

facts and circumstances present. Young v. Young, 891 N.E.2d 1045, 1049 (Ind. 2008). Although the adjusted 

gross income from a party’s tax return is “a useful point of reference,” the trial court must evaluate the 

specific deductions taken to arrive at that figure. Id. In considering depreciation, the trial court has broad 

discretion, but “should have as a goal ... to measure a reasonable yearly deduction for necessary capital 

expenditures.” Glass v. Oeder, 716 N.E.2d 413, 417 (Ind. 1999).
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parental agreement on child support in place, with modifications proposed by 

Mother. Because the order is not compliant with the directives or objectives of 

the Child Support Guidelines, we conclude that it represents an abuse of the 

trial court’s discretion.

[20] Child support calculations are made utilizing the income shares model set forth 

in the Indiana Child Support Guidelines. Sandlin, 972 N.E.2d at 374. The 

Guidelines apportion the cost of supporting children between the parents in 

accordance with their means, based upon the premise that children should 

receive the same portion of parental income after a dissolution that they would 

have received if the family had remained intact. Id. 

[21] The Children have an older sibling, and that older sibling has special needs. 

Had Mother’s and Father’s marriage remained intact, the amount of income 

available to the younger two siblings would be impacted by the needs of their 

elder sibling. Indeed, the Guidelines specifically recognize the propriety of an 

adjustment for a legal duty of support for a prior-born child. This is reflected on 

Line 1C of the Worksheet. Guideline 3(C)(3) provides that “an amount 

reasonably necessary for such support shall be deducted from Weekly Gross 

Income to arrive at weekly adjusted income.” (emphasis added.) It is 

“recommended” that the Guidelines be used to compute such support. 

Commentary to Guideline 3C. Father was entitled to an adjustment from his 

gross income because of his legal duty to support his prior-born child. 
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[22] The Guidelines also provide for a worksheet adjustment for the weekly cost of 

health insurance premiums. Guideline 3(G)(3) provides that “[t]he parent who 

pays the weekly premium cost for the child(ren)’s health insurance should

receive a credit towards his or her child support obligation in most 

circumstances.” (emphasis added.) As the trial court observed, Father’s pay 

stubs did not reflect a deduction for health insurance premiums. However, the 

health insurance was union-provided and not employer-provided. It was 

available to Father after he worked a requisite number of hours, and the 

premium was calculated as a portion of his income rather than a fixed amount. 

After apportioning a share of the premium to his eldest son, Father requested a 

very modest deduction of $17.00 per week for two children. Mother agreed that 

Father had paid health insurance premiums, albeit sporadically. It would 

appear that, on remand, Father is entitled to at least some allowance for the 

payment of health insurance premiums.

[23] The Guidelines advocate a total income approach to calculating weekly gross 

income. Ratliff v. Ratliff, 804 N.E.2d 237, 245 (Ind. Ct. App. 2004). “Weekly 

gross income” is defined as actual weekly gross income of the parent if 

employed to full capacity, potential income if unemployed or underemployed, 

and imputed income based upon “in-kind” benefits. Ind. Child Supp. G.3(A). 

A trial court may impute income to a parent for purposes of calculating child 

support upon determining that he or she is voluntarily unemployed or 

underemployed. Sandlin, 972 N.E.2d at 375. Father contends that the trial 

court should have imputed income greater than minimum wage to Mother.
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[24] Mother is a dental hygienist. As of the hearing date, she was employed on an 

as-needed or call-in basis, apparently by her fiancée. She was not seeking fulltime work. The youngest of the four children in the household, who is also 

Father’s child, was not scheduled to attend kindergarten for several more 

months, and it was anticipated that he might require surgery for a club foot.

[25] Mother did not specify her current hourly wage, but testified that she had 

previously made $32.00 per hour. Mother has a greater earnings potential as a 

dental hygienist than does Father, a landscaper. However, according to 

Mother’s testimony, she and Father had an understanding “during the 

marriage” that Mother would be a homemaker. (Tr. 24.) There is no reason to 

believe that any such agreement was indefinite. On remand, the trial court 

should consider whether Mother is voluntarily underemployed.

Conclusion 

[26] We reverse the suspension of parenting time and remand for a calculation of 

child support consistent with the Guidelines.

[27] Reversed and remanded. 

Riley, J., and Barnes, J., concur.