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: ATTORNEYS FOR APPELLEE:

BRUCE A. KOTZAN MICHAEL G. RUPPERT

Indianapolis, Indiana JAIMIE L. CAIRNES

Ruppert & Schaefer, P.C.

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

RICHARD ERIC JOHNSON, )

)

Appellant-Petitioner, )

)

vs. ) No. 49A05-1202-DR-81

)

GILLIAN WHEELER JOHNSON, )

)

Appellee-Respondent. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Patrick L. McCarty, Judge

Cause No. 49D03-9906-DR-898

December 4, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge
2

Case Summary and Issues

Richard Johnson (“Father”) and Gillian Johnson (“Mother”), parents to two children, 

were divorced in 1999. In 2011, Father filed a petition for modification of child support, 

parenting time, and college expenses, and Mother filed a motion to determine Father’s 

uninsured healthcare expense obligation dating back several years and the parties’ 

extracurricular expense obligation. Following a hearing, the trial court reduced Father’s 

child support obligation, determined the amount of uninsured healthcare expenses Father 

owed and set the future annual uninsured healthcare expense obligations of the parties, and 

modified parenting time, but declined to modify an earlier agreement between the parties 

regarding college expenses. 

Father now appeals, raising several issues for our review, which we consolidate and 

restate as: 1) whether the trial court properly determined Father’s obligation for past 

uninsured medical expenses; 2) whether the trial court abused its discretion in determining 

Mother’s credit for payment of health insurance premiums for the children; 3) whether the 

trial court abused its discretion in its orders regarding parenting time and other visitation 

related issues; 4) whether the trial court abused its discretion in failing to modify the parties’ 

agreement regarding payment of college expenses; and 5) whether the trial court abused its 

discretion in calculating child support because of its treatment of Social Security retirement 

benefits the children receive. 

We conclude the trial court properly calculated Father’s prior uninsured health care 

expense obligation based on the parties’ original agreement; appropriately considered and 
3

decided parenting time; and did not abuse its discretion in denying Father’s request to modify 

the parties’ agreement regarding payment of college expenses for the children, and we affirm 

the trial court’s order in those respects. We also conclude, however, that the trial court 

abused its discretion in calculating Mother’s health insurance premium credit; in ordering 

Father to pay all transportation costs for parenting time; and in failing to incorporate in its 

order the parties’ agreement regarding payment of extracurricular expenses. Finally, we 

conclude that although the trial court did not abuse its discretion in finding Father is entitled 

to a credit for Social Security benefits the children receive, it did not correctly apply any such 

credit to the child support calculation. We therefore reverse the trial court’s order with 

respect to these issues and remand for the trial court to recalculate child support and amend 

its order consistent with this opinion.

Facts and Procedural History

Father and Mother, parents to two daughters ages sixteen and thirteen at the time of 

the trial court’s order, were divorced in 1999 pursuant to a Decree of Dissolution which 

incorporated the parties’ settlement agreement. The parties shared joint legal custody of the 

children, with Mother having physical custody and Father having “reasonable visitation as 

may be agreed upon between the parties.” Appellant’s Appendix at 34. Father was to pay 

$90.00 per child per week in child support and to maintain health insurance for each child. 

“All uninsured health care expenses incurred by the minor children . . . not covered by 

insurance each calendar year shall be paid as follows: [Father] agrees to pay fifty percent 
4

(50%) of those expenses and [Mother] shall pay the remaining fifty percent (50%).” Id. at 

35. In the event the children attend college:

the parties shall pay the cost of that education, including room, board, tuition, 

living and clothing allowance, and a reasonable amount for book laboratory 

fees, and similar items as follows: [Father] 50% and [Mother] 50%. The 

parents shall be liable for only such sums after each child’s scholarships, 

grants, loans or other financial aid amounts.

The cost of the college education shall be calculated based upon the 

actual cost incurred, or the cost that would be incurred if the child attended a 

state supported college in Indiana as a resident student, whichever is less. This 

obligation shall not extend for enrollment during more than four academic 

years.

Id. at 36.

Following the dissolution, Father retired from his employment with the Marion 

County Sheriff’s Department, remarried, and relocated several times, residing in Arlington, 

Virginia, at the time of the hearing. Mother had another child. In 2003, the parties modified 

their settlement agreement in several respects. Father’s visitation was changed to “extending 

parenting time . . . for up to three weeks during the summer, or otherwise mutually agreed by 

the parties. Father will also have extended parenting time at least one other period during the 

year and at other designated times during the year as agreed by the parties.” Id. at 49. Father 

was to pay the parenting time transportation costs for the children to and from Indianapolis. 

Father’s support obligation was modified to $75.00 per child per week and was to abate by 

fifty percent when he had the children for a period of seven consecutive days. Mother was to 

maintain health insurance for the children. “Unless modified by this Agreement, the terms 

and conditions of the prior orders of this court remain in full force and effect.” Id. at 50.
5

On February 17, 2011, Father filed a Verified Petition for Modification of Prior 

Orders on Support, Visitation, and College Expenses. He alleged therein that due to his 

retirement, each child was receiving monthly Social Security benefits but he was receiving no 

credit toward his support obligation for these benefits. Also, Father alleged that due to his 

status as a disabled veteran, the children would be entitled to abatement of certain higher 

educational expenses at state-supported institutions and he wished the college expense 

provision of the settlement agreement to be modified accordingly. Father also alleged that 

since January 2007, he had exercised at least seven weeks of parenting time with the children 

each summer plus one week of parenting time over winter break, paying all travel expenses 

for each visit, but the parties “now disagree on the length of [Father’s] summer parenting 

time.” Id. at 54. Mother responded by filing a Motion to Determine Father’s Medical 

Expense and Extra Curricular Expense Obligation, in which she alleged that pursuant to the 

original settlement agreement, the parties were to split the children’s uninsured medical 

expenses equally but that Father had not paid his share of those expenses. She also requested 

that each party pay their pro rata share of the children’s extracurricular expenses. 

The trial court held a hearing on the pending motions over two days, one in June and 

one in September 2011. At the request of the parties, the trial court entered findings of fact

and conclusions thereon, which provide in pertinent part:

APPLICABLE LAW, FINDINGS AND CONCLUSIONS

* * *

21. Even though the Court has found that Father should not have a 

dollar-for-dollar credit against his child support obligation, the Court does 

hereby FIND that Father should receive some credit in the determination of his 

child support due to the [Social Security Retirement Children’s (“SSRC”) 
6

benefits]. . . . The Court FINDS that the SSRC benefits should be included in 

Mother’s [Weekly Adjusted Income (“WAI”)].

22. . . . While the parties disagree as to when during the year Father 

should exercise his parenting time, the evidence is clear that the parties have 

historically agreed to overnight parenting time of up to 8 weeks. . . .

23. . . . Mother testified that she has three options for health insurance 

coverage through her employer: individual, individual plus one, or family. 

Mother introduced evidence that the monthly cost for an individual is $.08, the 

monthly cost for an individual plus one is $379.02, and the monthly cost for a 

family is $494.54. While Mother does have a subsequently born child, Mother 

testified, and her exhibit demonstrated, that she would incur the cost for a 

family – i.e., $494.54/month – whether or not she had a subsequently born 

child. Therefore, Mother testified that the Weekly Health Insurance Premium 

credit should be calculated by prorating the amount that Mother pays for three 

children, i.e., the difference between the cost of covering the family and the 

cost of covering just her and multiplied by 2/3 to account for two of the three 

children being of this marriage (. . . $76.67 per week). Father argues that the 

children’s portion of Mother’s health insurance premiums should be calculated 

by determining the difference between family coverage and individual plus one 

coverage [or] $26.75 per week. Father’s request is inequitable because Mother 

cannot insure the parties’ children for that amount. . . . Thus, the Court FINDS 

that Mother should receive a credit on Line 4B of [the Child Support 

Worksheet] in the amount of $76.67.

24. The Court having made the foregoing findings concerning child 

support, now FINDS: Father should pay support to Mother in the amount of 

$138.00 per week . . . . The Court FURTHER FINDS that, pursuant to 

Indiana’s “6% Rule,” Mother shall pay the first $1,344.72 per year in 

uninsured healthcare expenses . . . . If Mother incurs more than $1,344.72 in 

annual uninsured healthcare expenses, Father shall contribute 33% and Mother 

shall contribute 67% toward payment of the annual uninsured healthcare 

expenses in excess of $1,344.72.

* * *

26. Father contends that the Settlement Agreement’s requirement to 

split the uninsured medical expenses 50/50 was modified to the “6% rule” 

because the [Child Support Worksheet] attached to the Amended Agreement 

included a software generated “Uninsured Healthcare Expense Calculation” at 

the bottom of the worksheet. . . . The payment of medical expenses was not 

addressed at all in the Amended Agreement and there was no language in the 

Amended Agreement incorporating the [Child Support Worksheet] support 

amount and uninsured healthcare expense calculation into the Amended 

Agreement – only that Father was to pay $150.00 per week, “. . . as provided in 

the attached Child Support Obligation Worksheet.” The Court FINDS: that 
7

the terms of the Settlement Agreement regarding a 50/50 split of medical 

expenses remained in full force and effect until January 23, 2011, when 

amended by this order.

27. The Court FINDS Father owes Mother fifty percent (50%) of all 

uninsured medical expenses incurred for the minor children prior to January 

23, 2011 . . . .

* * *

29. Father did request that his percentage contribution to college 

expenses be reduced to the pro rata share on the post-secondary educational 

worksheet. . . . 

30. . . . Father was a sheriff’s deputy at the time of the parties’ 

agreement, and he was earning $741.00 per week. He knew he would be 

retired when the children went to college. Now, Father is retired earning 

$805.00 per week and enjoying an annual household income, after child 

support, of more than $140,000.00 per year. The Court FINDS Father’s 

request for a modification of the post-secondary education expense provision 

of the Settlement Agreement should be DENIED. 

31. . . . The Court FINDS Father shall have parenting time during onehalf (1/2) of each break the children have from school pursuant to Section 

II.B.3 of the [Indiana Parenting Time Guidelines].

* * *

ORDER MODIFYING COURT’S PRIOR CHILD-RELATED ORDERS

The Court hereby adopts the foregoing Findings of Fact and 

Conclusions of Law and now being duly advised hereby ORDERS, 

ADJUDGES AND DECREES AS FOLLOWS:

1. Father’s prior child support obligation in the amount of $150.00 per 

week should be, and hereby is, modified to the sum of $138.00 per week . . . .

2. Mother shall continue to provide healthcare insurance for the parties’ 

children until further agreement of the parties, order of the Court or their 

emancipation, whichever comes first; and, any and all annual uninsured 

healthcare expenses up to and including the annual amount of $1,345.00 shall 

be paid by Mother pursuant to Indiana’s “6% rule.” Annual uninsured 

healthcare expenses of the parties’ children exceeding $1,345.00 annually shall 

be paid by the parties: 33% by Father, 67% by Mother. Father owes Mother 

the sum of $4,334.18 for his share of the children’s uninsured healthcare 

expenses up to January 23, 2011. Father shall be entitled to a credit for the 

overpayment of child support in the amount of $420.00 which shall be applied 

to his foregoing obligation to Mother. . . .

3. Father’s request, that the Court modify the prior agreement of the 

parties requiring that they share post-secondary educational expenses of their

children 50/50, is hereby denied.
8

4. The parties shall evenly divide the children’s four (4) school breaks 

(Winter, Spring, Summer and Fall), pursuant to Indiana Parenting Time 

Guideline 2.B.3, commencing with the winter break for the 2011-12 academic 

year. The Court’s prior order granting Father a 50% abatement for extended 

parenting time is hereby vacated and superseded by the parenting time credit 

set out for Father in the attached [Child Support Worksheet] . . . .

* * *

7. All of the Court’s prior child-related orders not necessarily modified 

herein shall remain in full force and effect.

Id. at 11-25 (emphasis in original). Father now appeals.

Discussion and Decision

I. Standard of Review

The trial court entered findings of fact and conclusions thereon pursuant to Indiana 

Trial Rule 52(A) at Mother’s request. Our standard of review is well-settled:

We must first determine whether the evidence supports the findings and 

second, whether the findings support the judgment. We will disturb the 

judgment only where there is no evidence supporting the findings or the 

findings do not support the judgment. We do not reweigh the evidence and 

consider only the evidence favorable to the trial court’s judgment. Appellants 

must establish that the trial court’sfindings are clearly erroneous, which occurs

only when a review of the record leaves us firmly convinced a mistake has 

been made. However, although we defer substantially to findings of fact, we 

do not defer to conclusions of law. Additionally, a judgment is clearly 

erroneous if it relies on an incorrect legal standard. . . . The purpose of Rule 

52(A) findings and conclusions is to provide the parties and reviewing courts 

with the theory upon which the case was decided.

Maxwell v. Maxwell, 850 N.E.2d 969, 972 (Ind. Ct. App. 2006) (quotations and citations 

omitted), trans. denied.

1

 

1

 Father notes in his brief that the trial court adopted Mother’s proposed findings of fact in their 

entirety. Father does not specifically name the propriety of the trial court’s doing so as an issue on appeal or 

make any specific argument about said practice; however, Mother has responded in her brief as if he did. We 

simply note that the practice is not per se improper; the trial court is responsible for the correctness of the 

findings it adopts and the important inquiry is whether the findings are clearly erroneous. See Parks v. Del. 
9

II. Health Insurance

A. Uninsured Health Care Expenses

Father first contends the trial court erred in its order regarding Father’s obligation 

toward past uninsured health care expenses by not applying the 6% rule from 2003 on but 

rather applying the 50/50 provision from the parties’ original settlement agreement.

A child support amount calculated using the Indiana Child Support Guidelines 

includes six percent for health care expenses. “The noncustodial parent is, in effect, 

prepaying health care expenses every time a support payment is made.” Commentary, Ind. 

Child Support Guideline 7. Therefore, pursuant to the Guidelines, the custodial parent is to 

pay the first six percent of uninsured health care expenses each year and each parent pays the 

remainder of the expenses in proportion to his or her share of the parties’ total income. 

When Mother and Father were divorced in 1999, however, they agreed that they would split 

the uninsured health care expenses for the children equally. The “Uninsured Health Care 

Expense Calculation” at the bottom of the Child Support Worksheet accompanying the 

decree of dissolution and settlement agreement was left blank. See Appellant’s App. at 44. 

In 2003, the parties entered an amended agreement that addressed several specific items; 

uninsured health care expenses were not one of them. However, the Child Support 

Worksheet attached to the amended agreement did include an uninsured health care expense 

 

Cnty. Dep’t of Child Servs., 862 N.E.2d 1275, 1278 (Ind. Ct. App. 2007) (“The Indiana Supreme Court has 

acknowledged that a trial court’s verbatim adoption of a party’s proposed findings may have important 

practical advantages and has expressly declined to prohibit the practice.”) (citing Prowell v. State, 741 N.E.2d 

704, 708-09 (Ind. 2001)).
10

calculation that showed Mother’s annual 6% obligation was $1,045.20 and the parties’ 

respective obligations as to the remainder. See id. at 51.

In this post-dissolution proceeding, Mother sought a determination of Father’s 

uninsured health care expense obligation since the 1999 divorce, alleging pursuant to the 

settlement agreement he owed half of the uninsured health care expenses since that time. 

Father countered that the 2003 amended agreement modified the uninsured health care 

expenses agreement from the 50/50 provision of the settlement agreement to the standard 6% 

Guideline calculation pursuant to the paragraph stating that “Father’s child support obligation 

shall be modified to seventy-five dollars ($75.00) per week per child, as provided in the 

attached Child Support Obligation Worksheet.” Id. at 49 (emphasis added). Father alleged 

he believed at that time that the 6% rule applied. The trial court found, based on contract 

law, that the express term regarding uninsured health care expenses in the settlement 

agreement was not modified by the amended agreement because it was not addressed therein 

and only the child support amount itself was incorporated from the attached Child Support 

Worksheet. Father contends this finding is in error.

When dissolving a marriage, the parties are free to craft an agreement providing for 

the maintenance of either party, the disposition of property, and the custody and support of 

the parties’ children. Ind. Code § 31–15–2–17(a). Settlement agreements become binding 

contracts when incorporated into the dissolution decree and are interpreted according to the 

general rules for contract construction. Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind. 2008). 

However, although Indiana Code section 31-15-2-17(c) expressly prohibits the modification 
11

of agreements as regards property disposition by the trial court, it does not similarly prohibit 

the modification of agreements regarding support and custody matters. Thus, the trial court 

could modify the terms of the parties’ agreement as to support and its various elements under 

appropriate circumstances.

When Father filed his 2003 petition for modification of prior support orders, he noted 

that he was at that time paying $90.00 per week per child in child support and carrying 

medical and dental insurance on the children. He further noted that he would be retiring and 

no longer eligible for group insurance coverage. He requested that his support obligation and 

the requirement that he carry insurance on the children be modified due to his retirement. 

The agreed judgment between the parties lowered Father’s weekly support and ordered 

Mother to carry health insurance on the children. In addition, it addressed extended 

parenting time for Father, and refinancing of the joint mortgage by Mother. The agreed 

judgment also provided that the terms and conditions of prior orders remained in effect 

unless modified by new agreement.

We agree with the trial court that the uninsured health care expense provision was an 

express provision of the settlement agreement in derogation of the Guidelines and that the 

agreed judgment, while accompanied by a child support worksheet that calculated the 6% 

uninsured health care expense obligation of the custodial parent and the percentage of the 

balance that each parent should pay, did not modify that provision. The uninsured health 

care expenses were not raised by Father’s motion, nor were they specifically addressed by the 

amended agreement. There is no evidence, other than Father’s self-serving testimony at the 
12

hearing on this current motion, that the parties discussed uninsured health care expenses at 

all, let alone agreed to alter their previous agreement. And while it is impossible to know for 

sure, it is likely, given the “Indiana Child Support Obligation Calculator” header and 

indygov.org website footer on the Child Support Worksheet attached to the amended 

agreement, that the worksheet was completed by inputting the values into an online form that 

automatically did the calculations, including the uninsured health care expense calculation, 

and that the inclusion of such calculation without more means nothing in regard to an 

agreement between the parties to change the previous provision.2

B. Health Insurance Premium Credit

Father also contends the trial court erred in giving Mother a $76.67 credit for the 

health insurance premiums she pays to carry health insurance on the children. Originally, 

Father carried health insurance on the children, but when he retired, Mother was ordered to 

add the children to her health insurance. At that time, Mother’s insurance covered herself 

and her subsequently-born son on her employer’s plus one plan, at a cost of $379.02. When 

Mother added the children, she and her three children were insured on the family plan for 

$494.54. The cost to insure Mother alone would have been $0.08. The trial court found that 

the cost to insure all three of Mother’s children was $494.46 (the cost of the family plan 

minus the cost to insure Mother alone), and that Mother should have a credit equal to two-

 

2

 Father contends that if the agreement was not expressly modified by the inclusion of the Child 

Support Worksheet, it was modified by conduct. We note first that the settlement agreement provides it can be 

modified only in writing. Appellant’s App. at 40. Moreover, it appears that Mother did not request any

uninsured health care expense reimbursement from Father from the time of the amended agreement until this 

proceeding, as her request includes documentation of expenses dating back to 2003. As the only modification 

this conduct would effect is to relieve Father of his obligation to contribute to uninsured healthcare expenses 

altogether and it sheds no light on the understanding of the parties as to whether the 50/50 agreement 
13

thirds that amount, or $76.67 per week. Father contends the trial court abused its discretion 

in so finding because that is the “theoretical” cost of insuring the children, rather than the 

“actual” cost, which he calculates as the difference between the amount she was paying 

without the children on her plan ($379.02) and the amount that she pays after adding the 

children ($494.54). Father therefore argues Mother’s credit should be $26.75 per week. 

Several Indiana Child Support Guidelines address how to handle the cost of health 

insurance in a child support calculation. Guideline 7 notes that the trial court shall order one 

or both parents to provide private health insurance when accessible to the child at a 

reasonable cost. Guideline 3 provides that the weekly cost of health insurance should be 

added to the basic child support obligation “whenever either parent actually incurs the 

premium expense . . . .” Ind. Child Support Guideline 3(E)(2). The commentary to 

Guideline 3(E) provides that “[o]nly that portion of the cost actually paid by a parent is added 

to the basic obligation.” Guideline 3 also provides that the parent who pays for the insurance 

“should receive a credit towards his or her child support obligation in most circumstances.” 

Child Support G. 3(G)(3). Generally, then, a parent should receive a health insurance credit 

in an amount equal to the cost the parent actually pays for a child’s health insurance. Julie C. 

v. Andrew C., 924 N.E.2d 1249, 1260 (Ind. Ct. App. 2010). 

The trial court reasoned that because the plan choices were to insure Mother alone, 

Mother plus one dependent, or the entire family, Mother could not insure the parties’ two 

children for less than the family plan amount, irrespective of her subsequently-born child; 

Father’s request was therefore “inequitable because Mother cannot insure the parties’ 

 

continued post-amendment, we reject Father’s contention.
14

children for [$26.75 per week].” Appellant’s App. at 16. On the other hand, the trial court 

found Mother’s request equitable “because she only gets a credit for two-thirds of the cost, 

and, thus, if she sought child support for her subsequently born child and received a one-third 

credit for his portion of the premium she would ultimately receive credit for the actual 

amount of health insurance premium costs she pays.” Id. The trial court’s consideration of 

what could happen if Mother began receiving child support for her subsequently-born child is 

premature. At the time Mother added the children to her insurance, she was already paying 

$379 per month for insurance. Adding the children increased the premiums to $494 per 

month, thus raising her actual cost by only $115. That Mother receives no child support from 

her subsequently-born child’s father unfairly burdens her with the costs of raising the child, 

but sharing in those costs is not Father’s responsibility. Apportioning the premiums as 

Mother suggests unfairly burdens Father with the cost of insuring a child who is not his. We 

agree with Father that Mother’s health insurance premium credit should reflect the actual cost

she has incurred in insuring the children and not the theoretical cost of insuring them if her 

situation were different. Accordingly, we hold the trial court abused its discretion in the 

health insurance premium credit it gave Mother.

III. Parenting Time and Other Visitation-Related Issues

A. Agreement

This case was heard over the course of two days – one in June 2011 and one in 

September 2011. At the June hearing, the parties informed the court they had an agreement 

as to certain issues:
15

[Mother’s counsel]: [Father], I believe, wants seven weeks [parenting time] in 

the summertime and he wants the option to take that continuously, and 

[Mother] stipulates that [Father] should have seven weeks in the summertime. 

We acknowledge that under the Parenting Time Guidelines he has the right to 

take those continuously if he wants to. We understand that that’s not 

necessarily going to apply to this [2011] summer right here, where we’ve got a 

little bit of a glitch going on about the exact seven weeks, and that seven days 

for the combined winter/New Years holiday . . . . And then reasonable, liberal 

visitation here in Indianapolis whenever [Father is] here, with approximately 

seven days notice if that’s possible.

Tr. at 31. In addition, for the summer of 2011, the parties agreed Father’s parenting time 

would begin within the week after school let out and end before August 1. See id. at 35. 

They also agreed that Father would pay for parenting time transportation and that each party 

would pay the extracurricular expenses the children incurred while they were in each parent’s 

custody. The trial court stated, “we’ve got an agreement as to the visitation and those other 

parts of it. We’ll have you draw that up separately and have them sign it, just so they 

understand it.” Id. at 47. The Chronological Case Summary entry for the June hearing 

indicates that a “partial agreement was read into the record.” Appellant’s App. at 4. No 

signed agreement or order was apparently entered.

When the parties returned to court to conclude the hearing in September, however, 

they noted that the children’s school had adopted a balanced calendar to begin with the 2011-

12 school year, and that pursuant to the new calendar, fall, winter, and spring breaks would 

be longer but summer break would be shorter. Where Father had traditionally exercised 

extended parenting time during the winter and summer breaks, Mother now requested that 

because of the schedule change, the court order parenting time in accordance with the 

Parenting Time Guidelines. The trial court’s order did not incorporate the provisions of the 
16

June stipulation, but separately addressed parenting time and travel expenses and failed to 

address extracurricular expenses. Father contends it was error for the trial court to disregard 

what he characterizes as binding stipulations conclusively resolving parenting time issues. 

The best interests of the children are the primary consideration when custody, support, 

or visitation issues are being determined. Naggatz v. Beckwith, 809 N.E.2d 899, 902 (Ind. 

Ct. App. 2004), trans. denied. The wishes of the parents are to be given considerable weight, 

but it is for the trial court to determine whether any agreement is in the best interests of the 

child. Id. The agreed-upon seven weeks of summer visitation at Father’s home in Virginia is 

incompatible with the continuous school calendar as shown by the exhibits introduced at the 

September 2011 hearing.3 Because the circumstances surrounding the exercise of parenting 

time had changed by the time of the September hearing, it was not inappropriate for the trial 

court to revisit the issue. 

B. Parenting Time Guidelines

Father next contends that if, as we have found above, the trial court did not err in 

considering parenting time on its own, it nonetheless erred in its application of the Parenting 

Time Guidelines in ordering that Father have parenting time with the children during half of 

each school break. 

The trial court cited Parenting Time Guideline II.B.3 as support for its order. 

Guideline II.B.3 provides that for children five years of age and older, extended parenting 

time shall be one-half the summer vacation, but if the child attends a year-round school, “the 

 

3

 For instance, the summer break in 2012 was from June 29, 2012, to August 6, 2012, or 

approximately five weeks. See Petitioner’s Exhibit 17.
17

periodic breaks should be divided equally between the parties.” Father contends the trial 

court erred in applying this Guideline provision rather than those found in Guideline III 

which addresses parenting time when distance is a major factor. Guideline III provides:

Where there is a significant geographical distance between the parents, 

scheduling parenting time is fact sensitive and requires consideration of many 

factors which include: employment schedules, the costs and time of travel, the 

financial situation of each parent, the frequency of parenting time and others.

1. General Rules Applicable. The general rules regarding parenting 

time as set forth in Section 1 of these guidelines shall apply.

2. Parenting Time Schedule. The parents shall make every effort to 

establish a reasonable parenting time schedule.

The commentary to this Guideline provides a parenting time schedule that “may be helpful”: 

“For a child 5 years of age and older, seven (7) weeks of the school summer vacation period 

and seven (7) days of the school winter vacation plus the entire spring break, including both 

weekends if applicable.” 

It appears Father is simply restating his argument that the June agreement between the 

parties should be how parenting time is handled. There is some tension between the yearround school provision of Guideline II and the recommended extended parenting time 

schedule of Guideline III. There is also tension between the children’s school schedule and 

the agreement the parties made in June. Both Guideline III’s suggested parenting time 

schedule and the parties’ agreement are unworkable given the length of breaks in the new 

school calendar. However, the parties’ practice had been for Father to have a total of eight 

weeks of parenting time with the children. The trial court’s order seeks to maintain that 
18

amount of parenting time while working within the school schedule, thus considering the 

factors relevant to this particular situation as Guideline III requires.4

We do believe, however, that the trial court abused its discretion in altering Father’s 

parenting time to four times per year as opposed to two but ordering Father to continue to pay 

all costs of transportation for parenting time. Guideline I(B)(1) concerns transportation 

responsibilities: “Unless otherwise agreed between the parents, the non-custodial parent 

shall provide transportation for the child at the start of the scheduled parenting time and the 

custodial parent shall provide transportation for the child at the end of the scheduled 

parenting time.” Comment 2 to this Guideline notes that where distance is a factor, “[t]he 

cost of transportation should be shared based on consideration of various factors, including 

the distance involved, the financial resources of the parents, the reason why the distances 

exist, and the family situation of each parent at that time.” The trial court, noting this 

Guideline and the commentary, and considering that the amended agreement required Father 

to pay all transportation expenses, that Father has moved from Indiana to facilitate his current 

wife’s employment opportunities, that Father has a higher standard of living than Mother, 

and that Mother has concerns about being required to pay any transportation costs because of 

 

4

 The heading to Father’s argument about the Parenting Time Guidelines contends the trial court’s 

order “impermissibly restrict[s] [his] parenting time contrary to I.C. § 31-17-4-2.” Appellant’s Brief at 23. 

That section provides that the court may modify a parenting time order whenever modification is in the best 

interests of the child, but 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.” Father makes no actual argument with respect to this statute, however. To the extent he is 

arguing that he gets less parenting time under the trial court’s order than he did previously, he has not shown 

that he will get any less parenting time, let alone enough less parenting time that it could qualify as “restricted.” 

 
19

Father’s frequent moves, found that Father should pay all costs of transportation for the 

children. 

We acknowledge the agreement between the parties regarding transportation costs, but 

note that said agreement was made presuming a different set of circumstances. We also 

acknowledge that Father moved from Indiana for personal reasons and that he has lived as far 

away from Indiana as Germany. Because the Parenting Time Guidelines demonstrate a 

preference for the parties sharing in the cost of transportation where the distance between 

them is significant, see Saalfrank v. Saalfrank, 899 N.E.2d 671, 682 (Ind. Ct. App. 2008), we 

believe the trial court’s order placing the entire burden of transportation costs on Father, 

coupled with the parenting time order doubling the number of times Father may exercise 

parenting time, is an abuse of discretion. Given the trial court’s findings about the reason for 

the distance and the financial resources of the parties, it may be that sharing the costs equally 

is not appropriate, but it should be shared in some manner. We therefore reverse that part of 

the order dealing with transportation costs and remand to the trial court to reconsider the 

allocation of transportation costs.5

C. Extracurricular Expenses

Father also notes that the trial court’s order does not address extracurricular expenses, 

an issue raised by Mother in her motion. No prior order specifically addresses extracurricular 

expenses, either; rather, the parties have traditionally paid the extracurricular expenses the 

 

5

 We note that transportation costs can also be addressed in the child support order itself, as the 

commentary to Indiana Child Support Guideline 1 notes that, among the “infinite number of situations” that 

may call for a deviation from the guideline support amount, “[t]he custodial or noncustodial parent incurs 

significant travel expense in exercising parenting time.” 
20

children have incurred while in each parent’s care, and that is also the agreement they 

reached during the June 2011 hearing. As none of the events occurring between the June and 

September hearings have any demonstrable impact on these expenses, as they have on 

parenting time and transportation expenses, we see no cause to alter the parties’ agreement as 

to this issue. We do, however, believe it would be best to memorialize it in writing, and we 

therefore direct the trial court to amend its order to incorporate the parties’ historical practice 

and future agreement regarding the payment of extracurricular expenses.

IV. College Expenses

Father next contends the trial court erred in not modifying the parties’ original 

agreement regarding college expenses. At the time of the parties’ divorce, they agreed that if 

the children continued their education at the college level, they would share equally the cost 

“after each child’s scholarships, grants, loans or other financial aid amounts.” Appellant’s 

App. at 36. In addition, the parties agreed the cost would be calculated “based upon the 

actual cost incurred, or the cost that would be incurred if the child attended a state supported 

college in Indiana as a resident student, whichever is less.” Id. Father requested this 

provision be modified because his status as a disabled veteran entitled the children to an 

abatement of educational expenses that is not addressed in prior orders. Specifically, Father 

asked the trial court to order the children to apply to an Indiana school that accepted the 

veterans benefit so that the actual value of the benefit could be assessed and applied, if 

necessary, to the college expenses each child actually incurred. Father also requested the trial 

court modify the 50/50 provision of the agreement to reflect the parties’ current proportional 
21

income; that is, to reduce his contribution from fifty percent. The trial court declined to 

modify the college expenses provision, finding that Mother acknowledged that even if the 

children go to out-of-state schools, Father’s contribution to tuition expenses was “likely to be 

entirely eliminated due to Indiana’s statutory tuition waiver program . . . .” Id. at 19. The 

trial court also declined to reduce Father’s percentage contribution to college expenses 

because Father’s household income and financial position is greater than Mother’s. 

Provisions for the payment of educational expenses are modifiable because 

educational expenses are in the nature of child support. Schacht v. Schacht, 892 N.E.2d 

1271, 1275 (Ind. Ct. App. 2008). Support orders, including orders to pay post-secondary 

expenses, may be modified even if the order is the result of an agreement between the parties. 

Walters v. Walters, 901 N.E.2d 508, 511 (Ind. Ct. App. 2009). To obtain a modification of a 

support provision, the petitioner is required to show “changed circumstances so substantial 

and continuing as to make the terms unreasonable” or a deviation of twenty percent or more 

from the guideline obligation. Ind. Code § 31-16-8-1. The trial court found there were no 

changed circumstances because Father’s retirement between the time of the agreement and 

the time the children would begin college had been contemplated when the agreement was 

made. However, the changed circumstances Father alleges are the tuition benefit available to 

the children at an Indiana college due to his status as a disabled veteran which was unknown 

to the parties in 1999. 

The agreement contemplates both capping the parents’ obligation to contribute to 

college expenses at the cost of an in-state institution and reducing the obligation by the 
22

amount of any financial aid, both of which would include consideration of the tuition benefit 

available to the children. Moreover, this situation is unlike that in Schacht, in which the 

parties’ agreement to each contribute one-third of their child’s college expenses was 

modified upon a finding that because the mother had incurred a significant loss of family 

income and assumption of additional expenses due to the illness of her current husband, her 

financial ability to pay a one-third share of college expenses had substantially changed. 892 

N.E.2d at 1274; cf. Hay v. Hay, 730 N.E.2d 787, 793 (Ind. Ct. App. 2000) (father failed to 

show change in circumstances warranting modification of agreement regarding payment of 

college expenses based solely on child’s enrollment in college because that situation was 

contemplated by the parties at the time of the agreement and the parties’ relative income had 

not changed substantially). Here, the manner in which Father may contribute toward college 

expenses may have changed since the agreement, but his ability to do so has not. We cannot 

say the trial court abused its discretion in finding no substantial change in circumstances and 

declining to modify the college expenses provision of the parties’ agreement. 6

V. Social Security Benefits

Finally, Father contends the trial court erred in its treatment of the dependent Social 

Security retirement benefits the children receive in the amount of $324.00 per week. The

 

6

 Father contends the trial court erred in failing to reduce his contribution to college expenses from the fifty 

percent to which he agreed to the percentage of his proportional income. Consideration of this issue would first require a 

finding of changed circumstances to warrant a modification, and having held the trial court did not abuse its discretion in 

finding no changed circumstances, we need not address this issue. 

Father also contends the trial court erred in considering his wife’s income in determining his relative financial 

position for purposes of his continued ability to contribute to college expenses. Although in general, the income of the 

parties and not the income of the spouses of the parties is considered in determining Weekly Gross Income for purposes 

of calculating child support, see Ind. Child Support Guideline 3, in determining post-secondary educational expenses, a 

trial court must consider, in part, “the incomes and overall financial condition of the parents.” Ind. Child Support 

Guideline 6, Commentary (emphasis added). Father’s wife’s income, as it impacts his overall financial position, is
23

trial court added the weekly benefit to Mother’s weekly adjusted income; Father contends the 

trial court should have instead credited that amount against his child support obligation.

In Stultz v. Stultz, 659 N.E.2d 125 (Ind. 1995), our supreme court considered whether 

the trial court properly refused to offset a father’s child support obligation by the amount of 

Social Security retirement benefits paid directly to his children. The trial court had 

determined, relying on the factors delineated in Indiana Code section 31-1-11.5-12(a) (now 

Indiana Code section 31-16-6-1), that the father should not be given credit against his child 

support for the Social Security retirement benefits received by his children. In particular, the 

trial court looked to the standard of living the child would have had if the marriage had not 

been dissolved, and determined that if the marriage had remained intact, the children would 

have enjoyed the benefit of the mother’s income, the father’s income plus retirement benefits 

and the Social Security retirement benefits they received. Id. at 127. Our court reversed the 

trial court, holding that the obligor parent is entitled to a credit for Social Security benefits 

received by the child due to that parent’s retirement. Stultz v. Stultz, 644 N.E.2d 589, 592 

(Ind. Ct. App. 1994). On transfer, our supreme court held that “such a credit is not automatic 

and that the presence of Social Security benefits is merely one factor for the trial court to 

consider in determining the child support obligation or modification of the obligation.” 

Stultz, 659 N.E.2d at 128. The trial court had “carefully consider[ed] all of the factors in this 

particular case [and] found that a credit was not warranted[,]” and the supreme court 

affirmed, unable to say that decision was clearly erroneous. Id. The court went on to note 

 

relevant to this inquiry. See Schacht, 892 N.E.2d at 1276 n.1.
24

that in the appropriate case, trial courts could grant a credit for Social Security retirement 

benefits, but “anticipate[d] . . . that such a credit will generally be denied . . . .” Id. 

The Indiana Child Support Guidelines now include the Stultz language in addressing 

Social Security benefits as an adjustment to a parent’s child support obligation (line 7 of the 

child support worksheet):

2. Noncustodial parent: Social Security benefits received by a custodial 

parent, as representative payee of the child, based upon the earnings . . . of the 

noncustodial parent shall be considered as a credit to satisfy the noncustodial 

parent’s child support obligation as follows:

i. Social Security Retirement benefits may, at the court’s discretion, be 

credited to the noncustodial parent’s current child support obligation. The 

credit is not automatic. The presence of Social Security Retirement benefits is 

merely one factor for the court to consider in determining the child support 

obligation or modification of the obligation.

Child Supp.G. 3(G)(5)(a). The commentary to this guideline notes that 

[t]he court has discretion to allow an adjustment to a parent’s child support 

obligation based on the amount of Social Security Retirement benefits paid for 

the benefit of the child due to that parent’s retirement. The retirement benefit 

is merely one of the factors that the court should consider when making an 

adjustment to the child support obligation.

In Thompson v. Thompson, 868 N.E.2d 862 (Ind. Ct. App. 2007), this court noted that not 

giving a credit for Social Security retirement benefits can result in gross child support and a 

percentage of total family income used for the benefit of the child that is in excess of what 

the child would have received had the family remained intact; conversely, giving the noncustodial parent a dollar-for-dollar credit for the retirement benefits can result in less. Id. at 

867-68. Either would be an abuse of the trial court’s discretion. Rather, the trial court 

should strive to give or deny credit for Social Security retirement benefits such that a 
25

substantially similar percentage of total family income is devoted to children in families 

receiving the benefits as in those that do not. Id. at 869. 

Here, the trial court found that Father should be given some credit in the child support 

calculation due to the Social Security retirement benefits the children receive, but that he 

should not receive a dollar-for-dollar credit because such credit would reduce the children’s 

standard of living significantly compared to that which they would have had if the marriage 

had not been dissolved. The treatment of Social Security retirement benefits is within the 

discretion of the trial court and we cannot say the trial court’s decision here to give Father a 

credit is an abuse of that discretion. However, we disagree with the method the trial court 

used for computing the child support obligation. The trial court purported to account for the 

retirement benefits by adding the weekly amount of the benefits to Mother’s income on line 

1(E) in determining her weekly adjusted income for purposes of calculating the basic child 

support obligation. Although this does increase Mother’s income and correspondingly,

reduce Father’s percentage share of the total income, it also has the effect of applying the 

reduced percentage to a greater amount of total income in the first instance. 

Accordingly, the trial court’s calculation does not really give Father a “credit” for the 

retirement benefits the children receive. We therefore remand to the trial court to refigure the 

child support obligation to give Father an appropriate credit after the basic child support 

obligation is calculated, but we point the trial court to several considerations in doing so. 

First, as the trial court noted, the guiding principle in adjusting the child support obligation 

should be to afford the children a similar standard of living to that they would have had but 
26

for the parties’ divorce, and the retirement benefits are but a factor in that determination. 

Second, as the trial court found, a dollar-for-dollar credit to Father’s child support obligation 

is not appropriate, as in this case, it would reduce Father’s child support obligation to zero. 

Father still has an obligation to support his children. See Stultz, 659 N.E.2d at 130. The 

retirement benefits are provided by the government to the children at no cost to Father – the 

amount of Social Security contributions he has made would be the same regardless of 

whether he had no children or ten children. Moreover, the retirement benefits paid to Father 

are not reduced or impacted in any way by the benefits the children receive. And the 

retirement benefits to the children do not act as a replacement for Father’s income as 

disability benefits would.7 Father cannot completely avoid his child support obligation 

because of an entitlement to which he has not contributed. As the trial court has found in its 

discretion that Father is entitled to a credit for the retirement benefits paid to his children, the 

trial court should figure the credit that will provide the children the appropriate standard of 

living and apply it to the Father’s child support obligation consistent with this opinion.

Conclusion

The trial court did not abuse its discretion in its order regarding Father’s prior 

uninsured health care expense obligation, parenting time, and college expenses. The trial 

court did abuse its discretion in calculating Mother’s health insurance premium credit, its 

 

7

 In Brown v. Brown, 849 N.E.2d 610 (Ind. 2006), our supreme court noted the difference between 

Social Security retirement benefits and disability benefits in explaining the different treatment of the two 

benefits: a parent is entitled to have Social Security disability benefits paid to a child credited against the 

parent’s child support obligation because disability payments are intended to provide support the disabled 

parent is unable to provide. Id. at 614 (quoting Williams v. Williams, 727 N.E.2d 895, 897 (Ohio 2000)). 

“Disability impacts a parent’s earning capacity and, therefore, a child’s standard of living, in a fundamentally 

different way than does retirement.” Id. 
27

order regarding parenting time transportation expenses, and in failing to address 

extracurricular expenses. Moreover, the trial court did not appropriately figure the credit to 

which Father is entitled toward his child support obligation because of Social Security 

retirement benefits the children receive. Accordingly, the trial court’s order is affirmed in 

part and reversed in part and remanded for the trial court to recalculate child support and 

amend its order accordingly.

Affirmed in part; reversed and remanded in part.

BAKER, J., and BRADFORD, J., concur.