Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017 Page 1 of 24

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

Jennifer Irons Jostes

Cedar Lake, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In Re the Paternity of Kyler S. 

Potoski, Riley N. Potoski, and 

Ellie R. Potoski

Brent S. Potoski,

Appellant-Respondent,

v.

Nicole Stotts,

Appellee-Petitioner.

November 15, 2017

Court of Appeals Case No.

37A03-1704-JP-947

Appeal from the Jasper Circuit 

Court

The Honorable John D. Potter, 

Judge

Trial Court Cause No.

37C01-1609-JP-244

Riley, Judge.
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STATEMENT OF THE CASE

[1] Appellant-Respondent, Brent S. Potoski (Father), appeals the trial court’s Order 

establishing paternity, custody, and support for his three minor children with 

Appellee-Petitioner, Nicole R. Stotts (Mother).

[2] We affirm in part, reverse in part, and remand.

ISSUES

[3] Father raises four issues on appeal, which we consolidate and restate as the 

following three issues:

(1) Whether the trial court abused its discretion by awarding primary physical 

and sole legal custody to Mother while allowing Father to exercise minimum 

parenting time;

(2) Whether the trial court erred in its calculation of child support; and

(3) Whether the trial court erred in determining that Mother is entitled to claim 

the parties’ children as dependents for tax purposes.

FACTS AND PROCEDURAL HISTORY

[4] Father and Mother share three children: Kyler S. Potoski, born December 5, 

2002; Riley N. Potoski, born March 10, 2006; and Ellie R. Potoski, born 

October 10, 2008 (collectively, the Children). Although Father and Mother 

never married, they were together for more than fourteen years and lived as a 

family in Wheatfield, Jasper County, Indiana. For most of the relationship, 

Father and Mother both worked outside of the home, and they shared the 

responsibilities of child-rearing.
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[5] In August of 2016, Father and Mother ended their relationship. Mother and 

the Children moved out of the home, and although Father desired more time

with the Children, he and Mother informally operated pursuant to the Indiana 

Parenting Time Guidelines. Thus, while Mother had primary care of the 

Children, Father spent time with them on Wednesdays and every other 

weekend. During this time, Father did not make any payments to Mother in 

support of the Children. He did, however, pay for some of the Children’s 

expenses—such as new clothing, shoes, phones, and haircuts.

[6] On September 15, 2016, the Jasper County Prosecuting Attorney’s Office, at

Mother’s request, filed a petition to establish child support. On October 31, 

2017, Father filed a petition to establish custody and parenting time, specifically 

requesting joint physical and legal custody. On November 9, 2017, Mother 

filed a petition requesting primary custody of the Children, with Father to 

receive parenting time.

[7] On February 23, 2017, the trial court conducted a hearing on the issues raised 

in the parties’ petitions. On March 27, 2017, the trial court issued its Order, 

establishing Father’s paternity to the Children. The trial court “awarded sole 

legal and physical custody” of the Children to Mother, “subject to . . . Father’s 

right of parenting time as agreed by the parties with a minimum pursuant to the 

Indiana Supreme Court Parenting Time Guidelines, including overnights on 

Wednesdays.” (Appellant’s App. Vol. II, p. 11). The trial court ordered Father 

to pay $31.00 per week in child support, increased by an additional $19.00 per 

week to satisfy an arrearage for his lack of support following the parties’ 
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separation. The trial court further directed that Mother would be entitled to 

claim the Children each year as dependents for tax purposes.

[8] Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[9] At the outset, we note that Mother has not filed an appellate brief. “When an 

appellee fails to submit an appellate brief, ‘we need not undertake the burden of 

developing an argument on the [a]ppellee’s behalf.’” C.H. v. A.R., 72 N.E.3d 

996, 1001 (Ind. Ct. App. 2017) (quoting Front Row Motors, LLC v. Jones, 5 

N.E.3d 753, 758 (Ind. 2014)). Instead, “we will reverse the trial court’s 

judgment if the appellant’s brief presents a case of prima facie error.” Id.

(quoting Front Row Motors, LLC, 5 N.E.3d at 758). In this context, prima facie 

error “is defined as[] at first sight, on first appearance, or on the face of it.” Id. 

(quoting Front Row Motors, LLC, 5 N.E.3d at 758).

[10] “Upon finding that a man is [a] child’s biological father, the court shall, in the 

initial determination, conduct a hearing to determine the issues of support, 

custody, and parenting time.” Ind. Code § 31-14-10-1. On appeal, our court 

does not reweigh evidence or assess the credibility of witnesses, and we view 

the evidence in a light most favorable to the trial court’s judgment. Best v. Best, 

941 N.E.2d 499, 502 (Ind. 2011). In family law matters, our court affords 

considerable deference to the trial court’s determinations. Id. This is because of 

the trial court’s
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unique, direct interactions with the parties face-to-face, often over 

an extended period of time. Thus enabled to assess credibility 

and character through both factual testimony and intuitive 

discernment, our trial judges are in a superior position to 

ascertain information and apply common sense, particularly in 

the determination of the best interests of the involved children.

Id.

[11] Furthermore, when reviewing judgments with specific findings of fact and 

conclusions thereon, our court will “not set aside the findings or judgment 

unless clearly erroneous.” Ind. Trial Rule 52(A). We must determine “whether 

the evidence supports the findings and whether the findings support the 

judgment.” Pitcavage v. Pitcavage, 11 N.E.3d 547, 552 (Ind. Ct. App. 2014). The 

trial court’s findings and conclusions will be found clearly erroneous “if they 

are unsupported by the facts and inferences contained in the record.” Id. at 553. 

“We will find the judgment to be clearly erroneous if, after reviewing the 

record, we are left with a firm conviction that there has been a mistake.” Id.

II. Custody

[12] Father claims that the trial court erred by awarding primary physical and sole 

legal custody to Mother. Our court does not disturb a child custody 

determination absent an abuse of discretion. Russell v. Russell, 682 N.E.2d 513, 

515 (Ind. 1997). Thus, we will only reverse the trial court’s decision “if it is 

clearly against the logic and effect of the facts and circumstances or the 

reasonable inferences drawn therefrom.” In re Paternity of M.W., 949 N.E.2d 

839, 842 (Ind. Ct. App. 2011).
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[13] In support of its decision to award primary physical and sole legal custody to 

Mother, notwithstanding Father’s request for both a joint physical and legal 

custody arrangement, the trial court found:

As to visitation, Father requests joint physical custody with 

equally shared overnights and parenting time; however, this has 

not been the practice as Father has been enjoying overnights on 

Wednesday evenings and not having equal overnights since the 

parties split in July of 2016. Father claims that because he is not 

working right now—awaiting his union grievance claim—he 

could have joint physical custody and many additional 

opportunities for parenting time while Mother is working and the 

[C]hildren are not in school. Father, once again, wants the 

[c]ourt to base its order on terms extremely favorable to him 

based on a current snapshot of his life at the time of this 

hearing—not working, no income, plenty of time to spend with 

kids. This ignores Father’s own testimony that he is going to 

save his house in bankruptcy which will require a job with steady 

income to reaffirm a mortgage in bankruptcy proceedings. 

Additionally, the [C]hildren are all school-aged and a fixed home 

and a fixed schedule would be in their best interests. Father’s 

proposal to have them switch residences multiple times during 

the week is not in the best interests of the [C]hildren.

Mother has been the primary provider for the [C]hildren since the 

parties separated with no financial help. Father has contributed 

nothing since the separation in support. She has maintained the 

[C]hildren’s schedule, daycare, and daily routine—that schedule 

needs to be maintained. Father should have visitation according 

to the parenting time guidelines with an additional overnight on 

Wednesday nights for a total of 148 overnights of parenting time 

credit.

As to custody, Ind. Code § 31-14-13-4 [sic] holds that a [m]other 

has sole legal and physical custody of a child born out of wedlock 
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unless the [c]ourt finds under Ind. Code § 31-14-13-23 [sic] that 

joint legal custody would be practical and in the best interests of 

the child. Insufficient evidence has been presented to this [c]ourt 

to determine that Father should overcome the statutory 

presumption in Ind. Code § 31-14-13-4 [sic]. Mother shall have 

full legal and physical custody of the parties’ three [C]hildren.

(Appellant’s App. Vol. II, pp. 9-10).

[14] Father now contends that the trial court relied on an inappropriate standard for 

making a custody determination as it failed to consider the best interests of the 

Children as required by statute. Similarly, Father argues that the trial court 

failed to consider the statutory factors for determining whether an award of 

joint legal custody is proper. Furthermore, Father insists that the trial court 

relied on a non-existent presumption that Mother has “sole legal and physical 

custody of a child born out of wedlock.” (Appellant’s App. Vol. II, p. 10). We 

largely agree with Father.

[15] When making a custody decision pursuant to a paternity proceeding,

[t]he court shall determine custody in accordance with the best 

interests of the child. In determining the child’s best interests, 

there is not a presumption favoring either parent. The court shall 

consider all relevant factors, including the following:

(1) The age and sex of the child.

(2) The wishes of the child’s parents.
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(3) The wishes of the child, with more consideration given to the 

child’s wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child’s parents;

(B)the child’s siblings; and

(C) any other person who may significantly affect the child’s

best interest.

(5) The child’s adjustment to home, school, and community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either 

parent.

(8) Evidence that the child has been cared for by a de facto 

custodian . . . .

I.C. § 31-14-13-2.

[16] In this case, rather than considering the required relevant factors, the trial court 

appears to have crafted its own standard. The trial court based its decision 

partly on the fact that, following the parties’ separation, Father—at Mother’s 

insistence—only exercised parenting time with the Children in accordance with 

the Parenting Time Guidelines. The trial court also criticized Father’s financial 

struggles: Father testified that he lost his job in May of 2016 due to a medical 
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issue, and he is currently searching for employment while also hoping that he 

receives a favorable ruling in his union grievance and is able to return to his 

former job. At the hearing, Father testified that he was preparing to file 

bankruptcy but that he intended to reaffirm the mortgage on his house. The 

trial court found that, following the parties’ separation, Mother had maintained 

the Children’s routines and supported them without any assistance from Father, 

even though both parties testified that Father cared for the Children whenever 

permitted to do so by Mother and that he had provided the Children with 

certain items such as clothing and shoes.

[17] It is well established that the trial court must consider all relevant factors in 

deciding the best interests, which specifically includes those identified in 

Indiana Code section 31-14-13-2. See Baxendale v. Raich, 878 N.E.2d 1252, 1254 

(Ind. 2008). Furthermore, when “a trial court is making an initial custody 

determination, it is required to consider all evidence from the time of [the]

child’s birth in determining the custody arrangement that would be in the best 

interest of [the] child.” In re Paternity of M.W., 949 N.E.2d at 843. Here, the 

trial court clearly failed to take into account the relationship that both parents

have had with the Children throughout their lives. Both Father and Mother 

testified that they shared the responsibilities in raising their Children, and both 

shared a bond with the Children. Moreover, Father and Mother live only five 

minutes apart, so the Children’s school and bus schedules are not disrupted 

regardless of which parent is exercising parenting time. The trial court found 

that Mother has maintained the Children’s schedules since the separation, and 
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while stability is certainly relevant in deciding the Children’s best interests, it is 

only one factor for the trial court to consider. The trial court should have 

analyzed all listed factors—plus any other relevant considerations—from the 

time of the Children’s birth in making an award of physical custody. By simply 

relying on the parenting time and support provided by the parties from the time 

of their separation in July of 2016 until the hearing in February of 2017 as the 

basis for its support order, we find that the trial court abused its discretion.

[18] In addition to awarding primary physical custody to Mother, the trial court 

gave her sole legal custody. “Physical custody and legal custody are not 

equivalent.” Finnerty v. Clutter, 917 N.E.2d 154, 156 (Ind. Ct. App. 2009), trans. 

denied. The parent with legal custody “may determine the child’s upbringing, 

which includes education, health care, and religious training, unless the court 

determines that the best interests of the child require a limitation on this 

authority.” I.C. § 31-14-13-4. In some cases, joint custody may be appropriate:

(a) In a proceeding to which this chapter applies, the court may 

award legal custody of a child jointly if the court finds that an 

award of joint legal custody would be in the best interest of 

the child.

(b) An award of joint legal custody under this section does not 

require an equal division of physical custody of the child.

(c) In determining whether an award of joint legal custody under 

this section would be in the best interest of the child, the court 

shall consider it a matter of primary, but not determinative, 

importance that the persons awarded joint legal custody have 
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agreed to an award of joint legal custody. The court shall also 

consider:

(1) the fitness and suitability of each of the persons awarded 

joint legal custody;

(2) whether the persons awarded joint legal custody are 

willing and able to communicate and cooperate in 

advancing the child’s welfare;

(3) the wishes of the child, with more consideration given to 

the child’s wishes if the child is at least fourteen (14) years 

of age;

(4) whether the child has established a close and beneficial 

relationship with both of the persons awarded joint legal 

custody;

(5) whether the persons awarded joint legal custody:

(A) live in close proximity to each other; and

(B) plan to continue to do so;

(6) the nature of the physical and emotional environment in 

the home of each of the persons awarded joint legal 

custody; and

(7) whether there is a pattern of domestic or family violence.

I.C. § 31-14-13-2.3.
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[19] It does not appear that the trial court considered any of these factors in denying 

Father’s request for joint legal custody and awarding sole legal custody to 

Mother. Rather, the trial court misstated the law by applying a custodial 

presumption in Mother’s favor. Pursuant to Indiana Code section 31-14-13-1,

when a child is born out of wedlock, the biological mother has sole legal 

custody until a trial court orders otherwise. Once a petition to establish custody 

has been filed, it is incumbent upon the court to consider the statutory best 

interests factors in deciding a physical and legal custodial arrangement. There 

is no presumption favoring either parent; rather, in “an initial custody 

determination, the trial court presumes that both parents are equally entitled to 

custody.” Spoor v. Spoor, 641 N.E.2d 1282, 1284 (Ind. Ct. App. 1994). The trial 

court’s finding that Father failed to overcome a presumption for an award of 

legal custody is clearly erroneous as a matter of law.

[20] Accordingly, we reverse and remand with instructions for the trial court to enter

a physical and legal custody order that reflects a consideration of all of the 

factors concerning the Children’s best interests, along with consideration of the 

factors for deciding whether an award of joint legal custody is proper. Because 

we reverse the trial court’s custody decision, we necessarily reverse its directive 

that, absent agreement between the parties, Father receive only the minimum 

parenting time accorded by the Parenting Time Guidelines.

III. Child Support

[21] Father also claims that the trial court erred in ordering him to pay $31.00 per 

week in child support. Decisions concerning child support generally fall within 
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the trial court’s sound discretion. Quinn v. Threlkel, 858 N.E.2d 665, 670 (Ind. 

Ct. App. 2006). Child support orders that comport with the Indiana Child 

Support Guidelines “bear a rebuttable presumption of correctness.” Id. Where 

a trial court finds the Guidelines to be “unjust or inappropriate in a particular 

case, the court may enter a support award that is deemed appropriate[,]” but 

any deviation “must be supported by proper written findings justifying the 

deviation.” Id. On review, we will reverse a child support order only if it “is 

clearly against the logic and effect of the facts and circumstances before the 

court,” taking into consideration only the evidence and inferences most 

favorable to the trial court’s decision. Id. “We also bear in mind that although 

a trial court has broad discretion to tailor a child support award in light of the 

circumstances before it, ‘this discretion must be exercised within the 

methodological framework established by the guidelines.’” Id. (quoting 

McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1251-52 (Ind. 1994)).

[22] Father insists that the trial court relied on improper figures for health insurance 

premiums and childcare expenses that are paid by Mother in calculating the 

necessary child support. Related to these issues, the trial court found as 

follows:

As a preliminary matter before addressing child support, the 

[c]ourt will address the issue of Mother’s employer-paid daycare. 

Mother’s employer, Kos Mo, Inc., which owns and operates 

McDonald’s restaurants, pays her daycare . . . .

. . . Kos Mo, Inc., has listed the day care payments as taxable 

income to Mother including them on her 2016 W-2 form totaling 
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$49,964.50 in taxable income [of which, $5,693.08 is attributable 

to daycare fees]. That is the identical figure on Mother’s final 

paystub for 2016 for her total income year-to-date including the 

category of ‘other income’. Therefore, the [c]ourt will include 

that amount in her wages and include the daycare cost on the 

child support worksheet. . . .

(Appellant’s App. Vol. II, pp. 7-8). Accordingly, the trial court determined that 

“Mother’s weekly gross income is $961.00. She incurs daycare costs of $172.08 

bi-weekly which results in weekly daycare of $86.04. Additionally, Mother 

incurs health insurance costs for her [C]hildren in the amount of $83.22 per 

week.” (Appellant’s App. Vol. II, p. 8).

A. Health Insurance Premiums

[23] First considering the health insurance premiums, Father argues that the 

evidence presented during the hearing establishes that Mother’s “employer pays 

the majority of her health insurance premium and that for the year 2016 the 

entire amount she paid out of pocket for insurance for herself and the [C]hildren 

was $1,322.92.” (Appellant’s Br. p. 17). The Child Support Guidelines provide 

that “[t]he weekly cost of health insurance premiums for the child(ren) should 

be added to the basic obligation whenever either parent actually incurs the 

premium expense or a portion of such expense.” Ind. Child Support Guideline 

3(E)(2). The commentary to the Guidelines further advise that “[o]nly that 

portion of the cost actually paid by a parent is added to the basic obligation. If 

coverage is provided without cost to the parent(s), then zero should be entered 

as the amount. If health insurance coverage is provided through an employer, 

only the child(ren)’s portion should be added.” Child Supp. G. 3(E)(2) cmt.
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[24] The trial court does not specify from where it derives the amount of $83.22 per 

week as Mother’s health insurance costs for the Children, except that it is the 

figure (minus one cent) proposed by Mother on her child support obligation 

worksheet. The evidence establishes that for Mother to insure just herself 

would cost $360.75 per month, and the cost to insure herself plus the Children 

is $721.40. The difference between these figures indicates that the Children’s 

portion of Mother’s monthly health insurance premium is $360.65. This 

amounts to approximately $83.00 per week.

[25] However, Mother submitted documentation indicating that for 2016, a total of 

$1,322.92 was deducted from her wages for medical insurance. During the 

hearing, Mother testified that her employer covers the majority of her health 

insurance premiums as “a perk of being a store manager.” (Tr. Vol. II, p. 32). 

Mother further testified as follows:

Q. Additionally, your insurance that you have, this is a cost that 

you actually pay, it comes out of your paystub, does it not?

A. A portion of it, yes, a small portion.

Q. The—in other words McDonald’s pays for the cost associated 

to you?

A. Yes.

Q. And then the additional cost, which I believe if you do the 

math, is $360.65 a month—

A. –Yeah. I mean—
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Q. –for your [C]hildren?

A. Yeah. [T]hat’s ‘cause when they had switched over to the 

whole Obamacare thing, like our insurance plans changed and I 

wanted to keep the plan that we had because it was better than 

the one that I was going to get. So I paid the “X” amount of 

money extra to keep what I had.

(Tr. Vol. II, pp. 39-40).

[26] Thus, it appears that Mother paid an “‘X’ amount” of $1,322.92 in order to 

keep her Children on the same health insurance plan after changes were 

implemented in the law, and her employer paid the rest of the premium 

attributable to the Children. (Tr. Vol. II, p. 40). The Child Support Guidelines 

clearly state that only the cost of health insurance actually paid by a parent may 

be included in the child support calculation; thus, the trial court’s inclusion of 

amounts paid by Mother’s employer was erroneous. We remand with 

instructions for the trial court to re-calculate the child support order based on 

the fact that Mother’s weekly health insurance cost for the Children is $25.44 

(i.e., $1,322.92 divided by fifty-two weeks).

B. Daycare Expenses

[27] Turning to the trial court’s inclusion of Mother’s daycare costs in its child 

support calculation, Father contends that the trial court erred in its finding that 

Mother incurs daycare costs of $86.04 per week. According to Father, this cost

represents the expense of having two children in daycare, but the evidence 

establishes that only one of the Children would remain enrolled in daycare.
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[28] The Child Support Guidelines provide for the inclusion of “reasonable” child 

care costs “incurred due to employment or job search” in the support obligation 

calculation. Child Supp. G. 3(E)(1). During the hearing, Mother testified that 

her employer, as part of Mother’s salary, directly pays childcare expenses for 

two of the parties’ Children. Mother further testified:

Q. And are both children going to the daycare regularly?

A. Ellie goes regularly, Riley goes in the mornings.

Q. He doesn’t go in the afternoons at all?

A. No. He was and then decided that he was going to come 

home.

Q. And how old is Ellie, again?

A. Eight.

Q. Okay. And she’s been going to the daycare for quite a while, 

right?

A. Since she has been born yes, six weeks.

Q. So is your employer aware that both kids are not going to the 

daycare?

A. Yeah. They know that they—that Riley goes sometimes in 

the mornings, because I have to drop them off before work.

Q. Then why are they continuing to pay for two kids to go?

A. Because in the summertime there has to be somewhere for 

them to go in the summer and Riley is just now old enough, I 
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think, to be able to stay home. Like we had just established this, 

this past summer.

Q. Okay so Riley stayed home this last summer?

A. Well, [Father] was home.

Q. So Riley stayed home with [Father]?

A. Yes.

Q. This last summer? So from at least this last summer there 

was only one child going to the daycare?

A. Yeah. Ellie went, yes.

Q. So even if there are some daycare costs it shouldn’t be 

$172.00 [biweekly], correct? Because that’s for two children 

according to this.

A. Well you still have to pay to hold their spot.

Q. But you just testified that Riley didn’t go last summer and so 

he doesn’t need to—doesn’t need to be a spot for him, correct?

A. Well, I guess not, not anymore cause he’s old enough.

(Tr. Vol. II, pp. 34-35).

[29] Mother’s testimony on this issue is certainly not clear. However, it does appear 

that while Riley—the parties’ middle child—no longer requires full-time 

daycare during the summer, he still goes in the mornings and gets on the school 

bus from the daycare. Based on this evidence, we cannot say that the trial court 
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erred by calculating the costs for two of the Children to attend daycare in its 

child support order.

V. Tax Exemptions

[30] Lastly, Father claims that the trial court erred by ordering that Mother, every 

year, is entitled to claim all three Children as dependents on her tax return. In 

support of its decision, the trial court found:

Because Mother provides health insurance, she shall claim [the 

tax exemption for] all of the [C]hildren in future years because 

under the Affordable Care Act, parents must provide health 

insurance for their kids. Whichever parent claims the child (or 

children) as a dependent when tax time rolls around is also 

responsible for providing the minimum essential coverage 

required by law and therefore, get the deduction.

(Appellant’s App. Vol. II, pp. 10-11). According to Father, the trial court’s 

finding misstates the law and fails to take into consideration certain factors set 

forth in the Indiana Child Support Guidelines.

[31] The Child Support Guidelines do

not take into consideration the awarding of the income tax 

exemption. Instead, it is required each case be reviewed on an 

individual basis and that a decision be made in the context of 

each case. Judges and practitioners should be aware that under 

current law the court cannot award an exemption to a parent, but 

the court may order a parent to release or sign over the 

exemption for one or more of the children to the other parent 

pursuant to [the Internal Revenue Code].
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Child Supp. G. 9. “A court is required to specify in a child support order which 

parent may claim the child(ren) as dependents for tax purposes.” Child Supp. 

G. 9. In determining when to order a parent to release an exemption to the 

other parent, the trial court “is required” to consider the following factors:

(1) the value of the exemption at the marginal tax rate of each 

parent;

(2) the income of each parent;

(3) the age of the child(ren) and how long the exemption will be 

available;

(4) the percentage of the cost of supporting the child(ren) borne 

by each parent;

(5) the financial aid benefit for post-secondary education for the 

child(ren);

(6) the financial burden assumed by each parent under the 

property settlement in the case; and

(7) any other relevant factors[] (including health insurance tax 

subsidies or tax penalties under the Affordable Care Act).

Child Supp. G. 9.

[32] Contrary to the trial court’s determination, there is no rule that automatically 

affords the parent responsible for paying health insurance premiums with the 

benefit of claiming the child(ren) as dependents. As the parent who maintains
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health insurance on the Children, Mother “receive[s] a health insurance credit 

in an amount equal to the premium cost the parent actually pays for [the 

Children’s] health insurance” against her own child support obligation. 

Ashworth v. Ehrgott, 934 N.E.2d 152, 162 (Ind. Ct. App. 2010). Moreover, as 

Father points out, the Child Support Guidelines contemplate that the parent 

who pays health insurance premiums for the child(ren) may not be the parent 

who gets to claim the child(ren) for tax purposes. Specifically, in the 

commentary to Guideline 7, which concerns health insurance, it states that

[p]roblems may arise if the parent who was ordered to provide 

health insurance fails to do so. The other parent may face a tax 

penalty under the Affordable Care Act if he or she claims the 

dependent tax exemption for the uninsured child.[1]

 The court 

should consider imposing sanctions against a parent who fails to 

provide health insurance as ordered or who fails to notify the 

other parent of changes in insurance status.

[33] During the hearing, neither party specifically requested the tax exemptions; 

thus, neither party demonstrated the consequences or benefits of being 

permitted to claim the Children. See Lamon v. Lamon, 611 N.E.2d 154, 159 

(Ind. Ct. App. 1993). While it is generally presumed that the custodial parent 

will claim the children as dependents unless the court orders said parent to sign 

a waiver, here, the trial court was charged with making an initial custody 

 

1

 The Child Support Guidelines note that “[o]nly the parent who claims a child as a dependent on a federal 

tax return is eligible for the subsidies [under the Affordable Care Act] and liable for the tax penalties.” Child 

Supp. G. 9 cmt.
Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017 Page 22 of 24

decision. Id. at 158 (citing 26 U.S.C. § 152(e)). Based on the evidence 

available, the trial court should have considered the factors set forth in Child 

Support Guideline 9 to determine which parent should receive the exemptions. 

We instruct the trial court to do so on remand.

CONCLUSION

[34] Based on the foregoing, we conclude that the trial court abused its discretion by 

awarding primary physical and sole legal custody to Mother without a proper 

consideration of statutory factors. We further conclude that the trial court erred 

by including employer-paid health insurance premiums in its calculation of 

child support; however, evidence supports the trial court’s finding that Mother 

incurs costs for two of the Children to be enrolled in daycare. Finally, we 

conclude that the trial court erred by failing to consider the factors set forth in 

the Child Support Guidelines for ascertaining which parent gets to claim the 

Children as dependents for tax purposes.

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

[36] Pyle, J. concurs

[37] Robb, J. concurs with concurring separate opinion
Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017 Page 23 of 24

IN THE

COURT OF APPEALS OF INDIANA

In Re the Paternity of Kyler S. 

Potoski, Riley N. Potoski, and 

Ellie R. Potoski

Brent S. Potoski,

Appellant-Respondent,

v.

Nicole Stotts,

Appellee-Petitioner.

Court of Appeals Case No.

37A03-1704-JP-947

Robb, Judge, concurring.

[38] I concur, but write separately to emphasize the unique situation posed by a 

paternity case. 

[39] When a child is born during a marriage, the parents are naturally the joint 

custodians of the child. For that reason, if the parents subsequently divorce, 

there is no presumption in favor of either parent when the dissolution court 

makes an initial custody determination. See Ind. Code § 31-17-2-8. However, 

when a child is born out of wedlock, the mother is sole legal custodian of the 

child by operation of law. Ind. Code § 31-14-13-1. There are many reasons for 

this, both practical and policy-based. Despite Father’s assertion otherwise, and 
Court of Appeals of Indiana | Memorandum Decision 37A03-1704-JP-947 | November 15, 2017 Page 24 of 24

despite the parties’ long-standing relationship, the trial court was correct that 

Mother did have sole legal and physical custody of the children until these 

paternity proceedings were initiated.2 Regardless of the parties’ situation and 

practice in the years leading up to these proceedings, when paternity 

proceedings are initiated, a court must determine issues of support, custody, 

and parenting time in accordance with the law. Ind. Code § 31-14-10-1. 

Although by statute, custody of a child resides with the mother from birth, our 

legislature has also made it clear by statute that there is no presumption in favor 

of either parent during these initial proceedings in which a court for the first 

time makes a custody determination based upon the statutory factors. Ind. 

Code § 31-14-13-2. 

[40] With that caveat, I agree with the majority that the trial court did not grant 

Father the equal footing to which he was entitled by statute and did not 

consider all of the statutory factors the legislature has directed be considered 

when a court awards custody for the first time. I therefore concur in the 

majority opinion.

[41]

 

2 Mother filed a petition to establish child support in 2016 after the parties’ relationship ended. Father then 

filed a petition seeking orders on custody and parenting time. As part of these proceedings, the parties 

stipulated to paternity and the trial court found as part of its March 27, 2017 order that Father was the father 

of each of the children. See Appellant’s Appendix at 7.