Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 1 of 16

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

Stephen P. Rothberg

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Katherine Ridenour

Paul R. Sturm

Shambaugh Kast Beck & Williams, 

LLP

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Leah Johnson,

Appellant,

v.

Justin W. Johnson,

Appellee.

February 18, 2020

Court of Appeals Case No.

19A-DC-827

Appeal from the Allen Superior 

Court

The Honorable Charles F. Pratt, 

Judge

Trial Court Cause No.

02D08-1701-DC-32

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 2 of 16

Statement of the Case

[1] Leah Johnson (“Wife”) appeals the trial court’s denial of her motion to correct 

error filed with respect to the dissolution of her marriage to Justin Johnson 

(“Husband”). Wife specifically argues that the trial court abused its discretion 

when it: (1) determined Husband’s child support obligation; (2) valued 

Husband’s General Motors (“GM”) Personal Savings Plan (“PSP”); (3) failed 

to provide sufficient information for the division of Husband’s PSP; and (4) 

distributed the parties’ property. Concluding that the trial court did not abuse 

its discretion, we affirm the trial court’s judgment.1

[2] We affirm.

Issues

1. Whether the trial court abused its discretion in determining 

Husband’s child support obligation.

2. Whether the trial court abused its discretion when it valued 

Husband’s PSP.

3. Whether the trial court abused its discretion by failing to 

provide sufficient information for the division of Husband’s 

PSP.

4. Whether the trial court abused its discretion when it 

distributed the parties’ property.

1 Wife has filed a motion for oral argument. We deny the motion by separate order.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 3 of 16

Facts

[3] Husband and Wife were married in 2003. They are the parents of two children, 

daughter, V.J. (“V.J.”), who was born in December 2003, and son, A.J.,

(“A.J.”), who was born in December 2005. Both Husband and Wife worked at 

GM. 

[4] Husband and Wife got into an argument on Christmas Day 2016. Wife went 

out to Husband’s car and rummaged through it. She found a bag with an 

unopened bottle of whiskey that someone had given Husband for Christmas, 

brought the bag into the house, dumped it on the floor, and told V.J. and A.J. 

that their father was an alcoholic. When Wife returned to Husband’s car and 

started pulling things out of it, Husband attempted to pull her out of the car. 

Husband told Wife that he wanted a divorce, and Wife responded that that was 

fine and that she was “gonna put [him] in jail cause [he had] put [his] hands on 

her.” (Tr. Vol. 2 at 156). Wife called the police and told them that Husband 

had grabbed her and that he had a gun. Husband waited in the garage. When 

three police cars arrived, the officers exited their cars with their hands on their 

guns. When the officers asked Husband if he had a gun, he responded that he 

had a gun and a permit that were inside the house. Husband left the house that 

night and went to his parents’ house.

[5] In January 2017, Wife filed a petition to dissolve the parties’ marriage. Two 

weeks later, Husband obtained a protective order for the following reasons:
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 4 of 16

Because [Wife] started harassing [him] through texts, calling, 

messages. [He] started getting messages from different accounts 

that people were trying to change [his] passwords. So [he] 

assumed it was her. And then . . . [he] got a message from Onstar, which [he] had shut off a year before, saying that it had been 

turned on. So then [he] found out through On-star that it had 

been turned on through [Wife’s] phone and that she was able to 

actively follow [him] through her phone and see where [his] 

location was, which she had been doing. She knew every – she 

told [him] over the phone where [he] had been going, what 

apartment place, what stores, you know, that she knew where 

[he] was at. And . . . then it culminated in she was following 

[him] in the car. She broke into [his] car at a gas station and took 

several items. And [he] just knew it was gonna continue so [he] 

felt – threatened. [He] didn’t know what she was capable of and, 

uh, that – that was part of why [he] filed it.

(Tr. Vol. 2 at 158).

[6] In January and February 2017, Husband saw V.J. regularly for overnight visits 

and talked to her every day on the telephone. Wife frequently took V.J.’s cell 

phone as punishment, and V.J. had to go to the office at school to telephone 

Husband. Beginning in March 2017, Husband felt like “he was being blocked, 

like [he] couldn’t gain access to the kids.” (Tr. Vol. 2 at 160). He eventually 

dismissed the protective order that same month. Shortly after the dismissal, 

Wife sent Husband a text “saying that [they] should bet back together.” (Tr. 

Vol. 2 at 160). Husband did not respond to the text.

[7] In April 2017, the trial court issued a provisional order, which granted Husband 

parenting time pursuant to the Indiana Parenting Time Guidelines. The order 

specifically stated that Husband’s “midweek parenting time shall be overnight 
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 5 of 16

so long as he provides appropriate childcare when he is working 3

rd shift.” 

(App. Vol. 2 at 27). The trial court also awarded Husband parenting time credit

for 143 overnight visits and ordered Husband to pay Wife $158 per week in 

child support.

[8] After the provisional order was issued in April 2017, Husband had regular 

overnight parenting time with V.J. and A.J. until June 2017. At the end of 

June, Wife accused Husband of molesting V.J. Because of these allegations, 

V.J.’s counselor recommended that Husband step back from parenting time and 

overnight visits. Husband followed the counselor’s recommendation, leading to 

fewer overnight visits with V.J. V.J.’s counselor also recommended that 

Husband see a specific counselor. At the time of the dissolution hearing, 

Husband was still seeing his counselor and was following the recommendations 

of both his and V.J.’s counselors.

[9] The trial court held a hearing on the dissolution petition in July 2018. At the 

beginning of the hearing, the parties tendered to the trial court their stipulations. 

Stipulation Number 10 provides, in relevant part, as follows:

The marital estate subject of distribution consists of certain assets 

and debts to which the parties stipulate as follows:

* * *

c) [GM] Personal Savings Plan . . . in husband’s name $52,925

(Father’s App. Vol. 2 at 11).
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 6 of 16

[10] In regard to the couple’s finances, Wife testified that Husband had taken care of 

the finances and had paid the bills during the course of the marriage. As far as 

Wife knew, both her paycheck and Husband’s paycheck had been direct 

deposited into an account at Midwest America Federal Credit Union (“the 

Midwest account”) and had been used to pay bills. According to Wife, she 

used a debit card to make purchases on the account but never verified how 

much money was in the account because that “wasn’t [her] responsibility.” (Tr. 

Vol. 2 at 70). At the time of the hearing, Wife was aware that Husband also 

had a Chase account (“the Chase account).

[11] Husband elaborated that he had opened the Chase account in 2015. Husband’s 

GM paycheck was deposited directly into the Chase account. However, 

according to Husband, “most of the . . . paycheck deposited into [his] Chase 

account found its way into the Midwest account[,]” which was the account that 

he used to pay most of the family’s bills. (Tr. Vol. 2 at 226). Husband 

specifically explained that he often took cash out of the Chase account and 

deposited those funds into the Midwest account. Husband also explained that 

he had also paid bills, such as $35,000 of mortgage payments, from the Chase 

account. Husband further testified that he did not have additional cash in a 

bank account or at his house and that he had not transferred cash or assets to 

anyone. Husband asked the trial court to issue a qualified domestic relations 

order “QDRO” to award Wife the portion of his PSP to which she was entitled. 

[12] Regarding his gross weekly wage for child support purposes, Husband testified 

that he was a third shift team leader at GM and that he had earned overtime 
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 7 of 16

pay at GM in the past. However, Husband further explained that overtime had 

“been cancelled because [GM was] running a new model and they [were] not 

up to full production[.]” (Tr. Vol. 2 at 153). Husband further explained that he 

had previously received an $11,750 employment performance bonus but that 

bonuses were not guaranteed from year to year. According to Husband, Wife 

had received a bonus in the past as well. 

[13] Additional testimony at the dissolution hearing revealed a tumultuous 

relationship between the parties. For example, Wife admitted that, during the 

pendency of the proceedings, she had broken into Husband’s car several times 

and had taken: (1) notes from Husband’s conference with his attorney; (2)

Husband’s car registration; (3) his lunchbox, and (4) several CD’s. Wife also 

admitted that she had called the police on Husband “about six (6) times” and 

had burned Husband’s personal property in a fireplace while roasting 

marshmallows with her children. (Tr. Vol. 2 at 77).

[14] Wife further admitted that she had told Husband that she did not “want him in 

[their] children’s lives,” and that when Husband had arrived to pick up his 

children for parenting time, Wife had told him to “get off [her] property” before 

she called her attorney and the police. (Tr. Vol. 2 at 80, 81). Wife had also 

required Husband to wait at the end of her street when he picked up A.J. for 

parenting time. Wife then made her son walk to the end of the block to meet 

his father. 
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 8 of 16

[15] Wife also admitted that she had accused Husband of inappropriately touching 

V.J. and that she had told V.J.’s therapist that Husband could have 

inappropriately touched V.J. “based on how [V.J.] was acting[.]” (Tr. Vol. 2 at 

91). Wife further testified that Husband had not regularly exercised parenting 

time with V.J. for the previous year. In addition, according to Wife, Husband 

had exercised intermittent parenting time with A.J. during the pendency of the 

proceedings.

[16] Husband testified that although the provisional order had authorized him to 

provide appropriate child care when he was working third shift, Wife “would 

not accept anyone that [he] had for watching [his] children,” including paternal

grandparents or Husband’s twenty-three-year-old nephew who is a paramedic. 

(Tr. Vol. 2 at 176). According to Husband, Wife had never approved of any of 

his childcare providers.

[17] At the end of the hearing, Wife submitted a post-trial brief wherein she alleged 

that Husband had deposited in the Chase account, “nearly $18,000 in ‘cash’

[which] was unaccounted for[.]” (Wife’s App. Vol. 2 at 45). According to 

Wife, Husband had “decided that dividing the assets of the marital estate in half 

was not to his liking, and therefore set out to secure his own ‘nest egg’ in the 

likely event the marriage was to end[.]” (Wife’s App. Vol. 2 at 46).

[18] In October 2018, the trial court issued a detailed eight-page dissolution order, 

which: (1) excluded overtime and bonuses in its determination of Husband’s

gross weekly wage; (2) did not order Husband to reimburse Mother for the 
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 9 of 16

parenting time credit he was awarded in the provisional order; and (3) valued 

Husband’s GM PSP at $52,925. The dissolution order also awarded Wife 49% 

of the marital couverture value of Husband’s PSP and ordered the division of 

Husband’s PSP through a Qualified Domestic Relations Order prepared by 

Husband’s counsel. Lastly, the trial court found that the presumption favoring 

an equal division of the marital estate was just and reasonable. The following 

month, Wife filed a motion to correct error, which the trial court denied in 

part.

2

 Wife now appeals the denial.

Decision

[19] Wife appeals the trial court’s denial of her motion to correct error. Our 

standard of review in such cases is well-established. We review a trial court’s 

ruling on a motion to correct error for an abuse of discretion. Old Utica School 

Preservation, Inc. v. Utica Tp., 7 N.E.3d 327, 330 (Ind. Ct. App. 2014), trans. 

denied.

[20] Wife specifically argues that the trial court abused its discretion when it: (1) 

determined Husband’s child support obligation; (2) valued Husband’s PSP; (3) 

did not provide sufficient information for the division of Husband’s PSP; and 

(4) distributed the parties’ property. We address each of her contentions in 

turn. 

2 The trial court granted to the motion in part to correct transposed terms.
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 10 of 16

1. Determination of Child Support

[21] Wife first argues that the trial court abused its discretion in determining child 

support. A trial court’s calculation of child support is presumed valid, and we 

will review its decision only for an abuse of discretion. Thompson v. Thompson, 

811 N.E.2d 888, 924 (Ind. Ct. App. 2004), trans. denied. An abuse of discretion 

occurs only when the decision is clearly against the logic and effect of the facts 

and circumstances before the court, including any reasonable inferences to be 

drawn therefrom. Barber v. Henry, 55 N.E.3d 844, 850 (Ind. Ct. App. 2016). 

The importance of the first-person observation and the prevention of disruption 

to the family setting justifies the deference given to the trial court in its child 

support determinations. Id.

[22] In regard to the determination of child support, Wife argues that the trial court 

abused its discretion in two ways. Specifically, Wife first contends that the trial 

court abused its discretion when it excluded Husband’s overtime wages and 

bonuses in its determination of his gross weekly wage. Overtime compensation

and bonuses are both includable in the total income approach taken by the 

guidelines. Ind.Child Support Guideline 3 (Commentary 2.b). However, the 

includability of overtime wages and bonuses in the noncustodial parent’s

income is a fact sensitive matter, and it is not the intent of the guidelines to 

require a party who has worked overtime to continue doing so indefinitely just 

to meet a support obligation based on that higher level of earnings. Id. 

[23] Here, our review of the evidence reveals that Husband testified that overtime 

had been cancelled at GM because the company was running a new model and 
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 11 of 16

was not up to full production. Husband also testified that although he had 

previously received an employment performance bonus, performance bonuses 

was not guaranteed from year to year. Based on this evidence, the trial court 

chose to exclude overtime and bonuses from its determination of Husband’s 

gross weekly wage. We find no abuse of the trial court’s discretion.

[24] Second, Wife argues that the trial court abused its discretion when it failed to 

order Husband to reimburse her for the parenting time credit he had been 

awarded in the provisional order. Wife specifically points out that the Husband 

received parenting time credit based on 143 overnight visits. According to 

Wife, because Husband did not exercise 143 overnight visits with the children, 

he should reimburse her for the parenting time credit that he received. 

[25] Wife, however, has failed to set forth, both at trial and on appeal, the number of 

overnight visits Father exercised and the amount of reimbursement she is 

seeking. Her failure to support her arguments with record evidence results in 

waiver of the issue on appeal. See e.g., Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 

2015) (explaining that a litigant who fails to support his arguments with 

appropriate citations to authority and record evidence waives those arguments 

for appellate review). 

[26] Waiver notwithstanding, we find no abuse of the trial court’s discretion. 

Indiana Child Support Guideline 6 provides 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 the guidelines further explains that 
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 12 of 16

the granting of the credit is based on the expectation that the parties will comply 

with the parenting time order, and a parent who does not carry out the 

parenting time obligation may be subject to a reduction or loss of the credit, 

financial restitution, or any other appropriate remedy. (Emphasis added).

[27] The use of the word “may” in the commentary to the child support guidelines

expresses an intent to vest the trial court with the discretion to determine 

whether it will order a certain result. See e.g., Ind. Civil Liberties Union v. Ind.

Gen. Assembly, 512 N.E.2d 432, 433 (Ind. Ct. App. 1987). Further, our review 

of the evidence reveals that the provisional order awarded Husband parenting 

time credit for 143 overnight visits. After the provisional order was issued in 

April 2017, Husband had regular overnight visits with both V.J. and A.J. until 

June 2017. At that time, Wife accused Husband of molesting V.J. Because of 

these unsubstantiated allegations, V.J.’s counselor recommended that Husband 

step back from parenting time and overnight visits. Husband followed the 

counselor’s recommendation, leading to fewer overnight visits. 

[28] In addition, Wife also contributed in other ways to Husband having fewer 

overnight visits with his children. For example, although the provisional order 

authorized Husband to provide appropriate childcare for the children during 

overnight visits while he was working third shift, Wife never approved of any of 

his childcare providers, including paternal grandparents and Husband’s nephew 

who is a paramedic. In addition, Mother told Husband that she did not want 

him in their children’s lives, she told the children that Husband was an 

alcoholic, and she burned Husband’s personal property in a fireplace while 
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 13 of 16

roasting marshmallows with her children. Wife’s denigration of Husband in 

the presence of their children appears to have led the children to pull away from 

Husband, which also resulted in fewer overnight visits. 

[29] Wife cannot create conditions that result in their children having fewer 

overnight visits with Husband and then request reimbursement for a credit for 

the overnight visits that Husband did not exercise. The trial court did not abuse 

its discretion when it did not order Husband to reimburse Wife for the 

parenting time credit he had been awarded in the provisional order. 

2. Valuation of Husband’s PSP

[30] Wife also argues that the trial court abused its discretion when it valued 

Husband’s PSP at $52,925. However, our review of the evidence reveals that 

Husband and Wife stipulated at the beginning of the dissolution hearing that 

the value of Husband’s PSP was $52,925. This Court has previously explained 

that parties entering into a stipulation are bound to the facts so stipulated. 

Wittwer v. Wittwer, 545 N.E.2d 27, 29 (Ind. Ct. App. 1989). Once a stipulation 

is entered into between the parties, the facts so stipulated are conclusive upon 

both the parties and the tribunal, and the parties cannot challenge those facts on 

appeal. Id. Accordingly, Wife cannot now challenge the stipulated value of 

Husband’s PSP, and the trial court did not abuse its discretion when it valued 

Husband’s PSP at $52,925.

3. Division of Husband’s Defined Benefit Plan
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 14 of 16

[31] Wife also argues that the trial court abused its discretion by failing to provide 

sufficient information for the division of Husband’s PSP. Specifically, 

according to Wife, the trial court’s order instructing Husband’s counsel to 

divide Husband’s PSP through a QDRO was not specific enough. As the sole 

authority in support of her argument, Wife directs us to Evans v. Evans, 946 

N.E.2d 1200 (Ind. Ct. App. 2011). There, the trial court ordered the entry of a 

QDRO against the husband’s employment pension plan to “adequately 

compensate [the wife] for her 50% interest in the net marital assets of the 

parties.” Id. at 1202. After the husband’s employer twice rejected proposed 

QDROs because they violated ERISA and the terms of the husband’s pension 

plan, the trial court issued an order implementing an alternate property 

distribution. This Court affirmed the trial court’s order as a clarification of its 

prior order, not an alteration, where the original plan was legally impossible to 

implement. 

[32] However, the facts in this case are distinguishable from those in Evans. 

Specifically, in Evans, the husband’s employer twice rejected two QDROs. 

Here, however, Wife does not allege that a QDRO has either been tendered to 

or rejected by Husband’s employer. Under these circumstances, Wife’s claim is 

simply not ripe for and we may not review it. See Garau Germano P.C. v. 

Robertson, 133 N.E.3d 161, 168 (Ind. Ct. App. 2019) (explaining both that a

claim is not ripe for adjudication if it rests upon contingent future events that 

may not occur as anticipated or may not occur at all and that we may not 

review a claim that is not ripe). 
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 15 of 16

4. Property Distribution

[33] Finally, Wife argues that the trial court erred in dividing the parties’ property. 

The disposition of marital assets is within the sound discretion of the trial court. 

Hatten v. Hatten, 825 N.E.2d 791, 794 (Ind. Ct. App. 2005), trans. denied. When 

we review a claim that the trial court improperly divided marital property, we 

must determine whether the trial court’s decision constitutes an abuse of 

discretion. Id. In so doing, we consider only the evidence most favorable to the 

trial court’s disposition of the property, without reweighing or assessing the 

credibility of witnesses. Id. An abuse of discretion occurs if the trial court’s 

decision is clearly against the logic and effect of the facts and circumstances 

before the court, or if the trial court has misinterpreted the law or disregards 

evidence of factors listed in the controlling statute. Id.

[34] Here, although Wife’s argument is somewhat unclear, she appears to argue that 

the trial court failed to distribute $18,000 that she alleges Husband had placed 

in the Chase account and subsequently either spent or hid. However, we agree 

with Husband that there is “no evidence presented by Wife to suggest that 

Husband frivolously spent or intentionally hid assets from her.” (Husband’s Br. 

at 19). Rather, as Husband points out, he opened the Chase account in 2015, 

and his paycheck was deposited directly into the account. However, most of 

the paycheck was subsequently deposited into the couple’s Midwest account, 

which was the account that he used to pay most of the family’s bills. Husband 

explained that he had also paid bills, such as $35,000 of mortgage payments, 

from the Chase account. Husband denied having any hidden or transferred 
Court of Appeals of Indiana | Memorandum Decision 19A-DC-827 | February 18, 2020 Page 16 of 16

cash. We agree with Husband that Wife has “failed to produce any evidence 

that Husband [] concealed or hid[] marital funds or expended marital funds 

frivolously[.]” (Husband’s Br. at 19). Rather, her argument is nothing more 

than an invitation for us to reweigh the evidence and assess witness credibility, 

which we cannot do. See Hatten at 794. The trial court did not abuse its 

discretion in distributing the parties’ property.

[35] Affirmed. 

Baker, J., and Robb, J., concur.