Opinion
21A-DC-2502
09-06-2022
Brandon Godsey, Appellant-Petitioner, v. Amanda Godsey, Appellee-Respondent.
ATTORNEY FOR APPELLANT Alexander N. Moseley Indianapolis, Indiana ATTORNEYS FOR APPELLEE Katherine A. Harmon Jessie D. Cobb-Dennard The Northside Law Firm Westfield, Indiana
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.
Appeal from the Hamilton Circuit Court The Honorable Paul A. Felix, Judge Trial Court Cause No. 29C01-1911-DC-10404
ATTORNEY FOR APPELLANT
Alexander N. Moseley
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Katherine A. Harmon
Jessie D. Cobb-Dennard
The Northside Law Firm
Westfield, Indiana
MEMORANDUM DECISION
Riley, Judge.
STATEMENT OF THE CASE
[¶1] Appellant-Petitioner, Brandon Godsey (Father), appeals the trial court's decree of dissolution dissolving his marriage to Appellee-Respondent, Amanda Godsey (Mother).
[¶2] We affirm in part, reverse in part, and remand with instructions.
ISSUES
[¶3] Father presents this court with four issues on appeal, which we restate as:
(1) Whether several of the trial court's findings are erroneous;
(2) Whether the trial court's Order awarding Mother primary and sole legal custody was erroneous;
(3) Whether the trial court abused its discretion by granting Mother's request to relocate from Indiana to Ohio;
(4) Whether Mother had rebutted the presumption of an equal division of the marital assets; and
(5) Whether the trial court erred in calculating the parties' weekly gross income.
FACTS AND PROCEDURAL HISTORY
[¶4] Father and Mother (collectively, Parents) met through a dating website while living in Ohio. They started dating in 2014, and not long into their relationship, they began having relationship issues. Parents separated in 2015, and despite their relationship problems which included Father's infidelity, they resumed their relationship, married on September 30, 2017, and by January 2018, Mother was pregnant.
[¶5] Since 2014, Father has worked for Dixon Golf, an Ohio-based company, as an independent contractor promoting charity golf outings. In March 2018, ATI Physical Therapy in Indiana offered Mother a job. Father agreed to the move to support Mother, because he could work from home, and because Indiana had a low crime rate and good schools compared to Toledo, Ohio. Shortly after that, Parents bought a house in Noblesville, Indiana. Following their move to Indiana, Parents' relationship deteriorated. During Mother's pregnancy, Parents argued, and Father threated to divorce Mother. Mother described her marriage to Father as an "emotional rollercoaster". (Exh. Vol. IV, p. 42). On September 4, 2018, Parents welcomed their only child, M.G. (Child).
[¶6] Parents wanted Child to have the opportunity of being cared for by a parent rather than being placed in daycare. On November 14, 2018, Mother returned to work outside the home, and Father worked from home while caring for Child. Father would put on noise-canceling headphones and place Child in a play area while he worked. Mother was concerned that Child was not receiving adequate care while Father worked, and Father agreed with Mother's concerns. For example, there were at least two instances of "15 minutes or more in which [Father] worked while leaving [Child] unattended in his play area." (Exh. Vol. IV, p. 82). There were also other instances of concern while Child was in Father's care, which included that Child was bitten by their dog, a bottle of vitamins was thrown at Child as a toy so that Father could return to a work call, and Child had escaped the play area and eaten a paper receipt.
[¶7] Father's work became a constant point of tension between the parties. Whenever Mother returned home from work to care for Child, Father spent his evenings locked away in his home office. Father rarely joined Mother and Child for dinner and did not participate in family events in the evenings or weekends. Due to the stress associated with juggling work and caring for Child during the day, Father began losing weight and was not sleeping well. It dawned on Mother that the childcaring/work-from-home arrangement was taxing for Father. Despite his admission that the new arrangement was stressing him, Father was unwilling to make the adjustments needed to ease the strain he was facing at home. In contrast, Mother took reasonable steps to alleviate the tension at home. Whenever Mother was not attending to clients, she would go home to help Father watch Child. Mother also enrolled help from maternal and paternal grandmothers who lived in Ohio to watch over Child. Mother suggested that Father quit his job, place Child in daycare, or move back to Toledo, where they both had family support. Parents could not amicably agree on how to resolve these issues.
[¶8] On November 1, 2019, Parents were arguing, and Father declared to Mother that he did not love her anymore and wanted a divorce. After an hour of intense arguing, Mother packed her belongings, together with Child's, and stated she was going to Toledo for the weekend. Father screamed in Mother's face and braced himself by the doorway to prevent Mother and Child from leaving. When that failed, he followed them outside and stated that he would report to the Noblesville Police Department that Mother had kidnapped Child. As Mother was driving away, she texted Father where she was going. After Mother left with Child, Father contacted the police to report the incident, but the police stated that there was nothing they could do since he was married to Mother.
[¶9] On November 4, 2019, Mother and Child returned to Indiana. Father wanted Mother to sign "an agreement for child custody" as they were going through the divorce, but Mother refused to sign it. (Exh. Vol. IV, p. 60). An intense oral argument ensued. That night Mother slept on the floor in Child's room, and Father slept on the couch. The following morning, on November 5, 2019, while Mother was giving Child his breakfast, Parents resumed their argument. Father called Mother derogatory names such as "cunt" and he threatened to "go down to the police station and file for divorce[,]" and take Child with him. (Transcript Vol. III, p. 40). When Father realized that Mother was recording him with her cellphone, he forcibly grabbed her "arm and wouldn't let go." (Tr. Vol. III, p. 49). After she freed herself from Father's hold, she called the police. The Department of Child Services (DCS) was also alerted about the incident. On the same day, Mother and Child left the marital home and checked into a hotel in Indiana.
The report received by DCS stated that Child was a victim of neglect and alleged that the perpetrator was Father. The assigned family case manager (FCM) interviewed Mother, who stated that she had never contacted the police regarding domestic abuse, and she denied prior physical altercations with Father. Father admitted that he had argued with Mother and grabbed her phone because Mother was recording him, but he denied physically grabbing her and any prior history of domestic violence. Following FCM's investigation, she found the claim of neglect to be unsubstantiated.
[¶10] The following day, on November 6, 2019, Father petitioned for dissolution of the marriage. Shortly after the filing, Mother placed Child in daycare, and on November 8, 2019, she filed a protective order against Father. On November 25, 2019, Parents submitted an Agreed Order which provided, in part, for Father to vacate the marital home, and for Mother to dismiss her petition for a protective order against Father. Shortly thereafter, on December 9, 2019, Parents submitted a Mediated Temporary Provisional Order (Provisional Order) giving Parents joint legal custody of Child, with Mother having physical custody and with parenting time for Father. While the Provisional Order allowed Mother to continue her occupation of the marital home, Mother was required to pay the mortgage, insurance, and real estate taxes. The Order also required the parties to prepare the house for sale beginning in Spring 2020. Mother, however, failed to pay the mortgage for April and May 2020, and she also did not pay taxes and insurance. While it was Mother's responsibility, Father felt obligated to make those payments because he "had a joint interest in the property and wanted to make sure that it remained vested and insured." (Tr. Vol. IV, p. 205).
[¶11] On February 18, 2020, Mother filed her Notice of Intent to Relocate from Noblesville, Indiana, to Toledo, Ohio. Father filed his objection and a motion for modification of custody due to Mother's intended relocation. Father additionally motioned for the appointment of a custody evaluator and the trial court later appointed Dr. Sara Szerlong (Dr. Szerlong).
[¶12] Despite the entry of the Provisional Order directing parenting time, Parents constantly argued. Mother accused Father of being tardy for the parenting time exchanges, and Father accused Mother of being rigid and not accommodating with the parenting time schedule. When Child's daycare closed sometime in March or April 2020 due to the Covid-19 pandemic, Parents' arguments increased because they could not agree on a temporary parenting time program without engaging in long texts that would end up in a disagreement and resentment. For instance, Mother accused Father of taking advantage of the daycare closure and keeping Child at home for additional parenting time. At some point, Mother sought alternative childcare, i.e., her boss' wife, to take care of Child while at work. Father was upset because Mother did not allow him to participate in that decision, and she had picked an outside caregiver to care for Child instead of him. When the Indiana Governor issued a stay-at-home order in April 2020 mandating residents to limit travel and practice social distancing to prevent the spread of Covid-19, Father wrote to Mother that he had preemptively revised his work schedule to enable him to care for Child during the day, and he explained utilizing her boss' wife to watch Child was "unnecessary and against the principles of the executive order." (Exh. Vol. V, p. 125). Mother replied, "I tried to be flexible and come up with a schedule with you, for [Child], while the daycare is closed. We were unable to agree upon a schedule for [Child] from7:00AM-12:30PM [] If you have any other questions regarding this matter, please have your lawyer contact my lawyer." (Exh. Vol. V, p. 125). As Mother's Day approached, Father's parenting time landed on that day, and Mother asked Father to allow her to have parenting time from 9 a.m. to 6 p.m. Father wrote back and claimed that he was willing to give her time with Child between 3:00 p.m. and 6:00 p.m. on Mother's Day. Parents argued for almost a week, with Father accusing Mother of not being gracious with his past parenting time requests on New Year's Eve, New Year's Day, Martin Luther King Day, President Day, and expecting him to readily accept her request. Mother found it ridiculous that Father was offering her additional parenting time on another day and not on Mother's Day. Another time when Child possibly had an ear infection, Mother scheduled a doctor's visit. Despite Mother having booked the appointment, Father called the doctor's office regardless. He then informed Mother that he would attend the appointment despite the doctor's office's Covid-19 policy that only allowed one parent during the visit. Father explained that since Child was in his care when symptoms arose, he was better at narrating the symptoms. Mother responded by telling Father that it was her turn to take Child to the doctor since Father had attended the previous visit. Despite Mother's explanation, Father stubbornly stated that he would be in attendance, had informed his attorney about the situation, and if necessary, he would contact the Noblesville Police Department to be on standby during the doctor's visit. In June 2020, Father did not readily accept Mother's request to have additional parenting time on her birthday from 9:00 a.m. to 6:00 p.m. Father was willing to give Mother parenting time between 4:00 p.m. and 6:00 p.m. Their text conversations thereafter spiraled, with Father again reminding Mother that she had not readily complied with his past requests for additional parenting time, and Mother reminding Father that the Indiana Parenting Time Guidelines (IPTG) allows a parent to have parenting time on special days like her birthday. Upon realizing that Father would not concede to giving her the time she needed, Mother texted Father "I am not going to continue with this emotional abuse. I will pick up [Child] tomorrow at 6:00PM from the Noblesville police station, on my birthday, June 11th. Please do not text me back." (Exh. Vol. IV, p. 138).
[¶13] Based on a host of co-parenting issues, Father filed a motion for the appointment of a parenting coordinator, and on June 29, 2020, the trial court appointed parenting coordinator Robin Neihaus (PC Neihaus). Ahead of the final hearing, Dr. Szerlong prepared a custody evaluation report derived from her interview with Parents and other members of Parents' families, Child's speech therapist, PC Neihaus, Mother's and Father's therapists, and DCS. Her evaluation also involved reviewing documents such as court filings, videos, emails, and texts. She noted that Mother was concerned with Father's care of Child during the day; Father's use of alcohol since Mother claimed it triggered instances of domestic violence the deterioration of Father's mental health; and Father's tardiness during activities involving Child. Father's apprehensions with Mother were that she historically blamed him for their marital problems, would arbitrarily travel out of state with Child and not tell him beforehand, and deny him parenting time.
[¶14] After four continuances, on June 6, 2021, the trial court held the final hearing. Father, Mother, Dr. Szerlong, and PC Neihaus, testified. Father sought primary physical custody, and despite his admission that co-parenting was not functioning well, he sought joint legal custody. Mother sought primary physical custody, especially due to her relocation. Mother did not believe she could co-parent effectively, and she believed that joint legal custody was impractical.
[¶15] Dr. Szerlong testified there was a lot of finger-pointing and unproductive communication between Parents. Part of her recommendation was for Parents to engage in co-parenting counseling to help them improve their communication. Ultimately, Dr. Szerlong concluded that Mother should be granted primary physical custody of Child, and that the parties should share joint legal custody. PC Neihaus, who served as a parenting coordinator for over a year, testified that she had conducted a total of eleven two-hour meetings with Parents monthly. She expressed that even though Parents could settle on a parenting issue with her assistance, they were unable to decide on their own, and Parents' interaction wound up in lengthy e-mail strings packed with distrust and disbelief of the other. She expressed that Parents could not have a "parenting coordinator forever, and it's time for them to be able to move on." (Tr. Vol. III, p. 5). Taking a different stance from Dr. Szerlong, PC Neihaus recommended sole legal custody in favor of Mother, claiming that co-parenting was especially difficult given that Parents were unable to communicate effectively.
[¶16] At the end of the hearing, the trial court offered Parents the opportunity to tender proposed findings of fact and conclusions of law, and after the parties expressed the desire to do so, it ordered them to submit their proposed orders within fifteen days, and it took the matter under advisement. On October 13, 2021, the trial court issued a thirty-six-page Order, identifying 151 factual findings or legal conclusions. The Order, among other things, dissolved the marriage, granted Mother sole legal and physical custody of Child, and ordered Father to have parenting time with Child pursuant to IPTG, where distance is a factor. It also analyzed Parents' income and established Father's child support obligation and the amount in arrearage. Additionally, it divided the marital estate and concluded that Mother had rebutted the equal division of marital property.
[¶17] Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[¶18] Where, as here, the trial court enters findings of fact and conclusions thereon without an Indiana Trial Rule 52 written request from a party, the entry of findings and conclusions is considered to be sua sponte. Dana Cos., LLC v. Chaffee Rentals, 1 N.E.3d 738, 747 (Ind.Ct.App. 2013), trans. denied. When the trial court enters specific findings sua sponte, the "findings control our review and the judgment only as to the issues those specific findings cover. Where there are no specific findings, a general judgment standard applies, and we may affirm on any legal theory supported by the evidence adduced at trial." Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 614 (Ind.Ct.App. 2011), trans. denied.
[¶19] We apply the following two-tier standard of review to sua sponte findings and conclusions: whether the evidence supports the findings, and whether the findings support the judgment. Barkwill v. Cornelia H. Barkwill Revocable Trust, 902 N.E.2d 836, 839 (Ind.Ct.App. 2009), trans. denied. We will only set aside findings and conclusions if they are clearly erroneous, that is, when the record contains no facts or inferences supporting them. Id. "A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made." Id. In conducting our review, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom. Samples v. Wilson, 12 N.E.3d 946, 950 (Ind.Ct.App. 2014). We will neither reweigh the evidence nor assess witness credibility. Id.
[¶20] In addition, there is a well-established preference in Indiana "'for granting latitude and deference to our trial judges in family law matters.'" Swadner v. Swadner, 897 N.E.2d 966, 971 (Ind.Ct.App. 2008) (quoting In re Marriage of Richardson, 622 N.E .2d 178, 178 (Ind. 1993)). Appellate courts "'are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence.'" Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). "On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal." Id.
II. Challenged Findings
[¶21] Father claims that the evidence does not support several of the trial court's findings. We will address each challenged finding in turn.
A. Finding #38
[¶22] Father first challenges Finding #38, which provided,
Father is employed and has been working for the same employer, Dixon Golf, since April 2014, as an independent contractor who promotes charity golfing outings. His job is flexible but demanding, and often takes approximately 100 hours of work per week, especially during the most demanding months of the year, May through October.
(Appellant's App. Vol. II, p. 37). Father contends that there is no evidence in the record to support that he worked 100 hours per week. Mother claims that she testified that she would send Father "encouraging text messages regarding his parenting because Father was stressed out with work, working about 100 hours a week." (Appellee's Br. p. 8) (internal quotations omitted). In his reply brief, Father argues that he objected to Mother's testimony because her response was beyond the scope of questioning, and the trial court sustained his objection. Thus, he claims that Mother's testimony was not evidence. We agree with Father that Mother's testimony was outside the record. It is well-settled that we may not consider matters outside the record in ruling on an appeal. Schaefer v. Kumar, 804 N.E.2d 184, 187 n. 3 (Ind.Ct.App. 2004), trans. denied.
[¶23] Regardless, we find that there is additional evidence in the record that Father worked 100 hours per week. Dr. Szerlong's report indicated that Father's "work with Dixon Golf became a consistent point of tension and argument" in Parents' relationship. (Exh. Vol. IV, p. 41). Dr. Szerlong reported that maternal grandmother had conveyed to her that Father was constantly working and unavailable to spend time with Mother and Child in the evenings and over the weekends, and he declined trips to visit their families in Ohio. Father "would always say he had to work and at one point he told [maternal grandmother] he was working 100+ hours per week." (Exh. Vol. IV, p. 42). Dr. Szerlong's report also included text messages between Parents, and in a text sent in May 2019, when Father was Child's primary caregiver, Mother stated "I want to spend time with you and [Child] and we can't do that because you need to work 100 hours for a job that doesn't pay you what you deserve." (Exh. Vol. IV, p. 97). Father's response was, "Your argument is false.[] I don't work 100 hours per week. I multi task [sic]. Which I don't have to do anymore." (Exh. Vol. IV, p. 97). While Father testified that he worked at least 40 hours per week for Dixon Golf, there is evidence in the record suggesting that he put in more work hours than he claimed. Accordingly, we find no error with this finding.
B. Findings #39 and #74
[¶24] Next, Father challenges Finding #39 and #74 which provided
39. In preparation for birth of Child, Mother and Father agreed that Mother would return to working outside of the home since Father could do most of his job virtually and telephonically from home. After Mother returned to work on November 14, 2018, Father stayed home and cared for [] Child. Father cared for [C]hild during the workday until October 31, 2019. Father received assistance in caring for [] Child from both paternal and maternal grandmothers.
* * * *
74. Although there is some evidence that maternal grandmother has assisted Mother at the beginning of this divorce with how to proceed to the detriment of Father, there is also evidence that maternal grandmother offered[,] and Father accepted her help many times with caring for Child during the months that Father was the daytime caregiver. Dr. Szerlong was concerned about maternal grandmother and her potential for stoking additional divisiveness into parenting issues. The [c]ourt does not share the same amount of concern. Maternal grandmother has shown through many opportunities of helping Father, that her affection for Child, Father, and Mother would outweigh any tendency to alienate Father from Child.
(Appellant's App. Vol. II, pp. 37, 45-46). Father claims Finding #39 is incorrect because "paternal grandmother and maternal grandmother visited approximately one (1) time per month." (Appellant's Br. p. 12). He claims that Mother was present when the grandmothers visited and the only "reasonable inference" is that he received "de minimis help from either paternal or maternal grandmothers in caring for [] Child." (Appellant's Br. p. 13). With Finding#74, Father argues that the finding is erroneous for similar reasons.
[¶25] Because the childcare/work-from-home arrangement stressed Father, Mother testified that she enlisted maternal grandmother's help on several occasions to care for Child every month. Additionally, Dr. Szerlong testified that prior to the parties' separation, it was her understanding that maternal grandmother assisted with childcare on "several different occasions." (Tr. Vol. II, p. 171). Mother additionally asserted that paternal grandmother helped take care of Child. Also, Father himself testified, "I think [paternal grandmother] came once a month and [maternal grandmother] came once a month. They would typically come on a Friday[,] which was one of [Mother's] half days. . . So five hours every other week." (Tr. Vol. III, p. 103). Because there is evidence in the record showing that Father received help from the grandmothers, this finding is not erroneous.
C. Findings #42, #43, and #44
[¶26] Father challenges Findings #42, #43, and #44 which related to his role as Child's caregiver:
42. During the time Father cared for Child, Father kept Child in bed some days until noon. When Child was taken out of bed, Father would place Child in a play area in a room outside of
Father's office. While Father worked and engaged in telephonic business, he closed the doors between his office and where [] Child was located. Often, Father would wear noise-cancelling headphones.
43. There were several instances of Father prioritizing his job over caring for Child. Probably the worst instance of not supervising [] Child properly resulted in Child being bitten (or nipped) by a dog. Child was taken to the hospital because of this situation. Other times, Child was able to get out of the play area, Child ate a receipt, and Father threw a bottle of vitamins to Child to play with as if it was a rattle.
44. Mother addressed concerns over Father's ability to properly care for [] Child. Mother initiated conversations suggesting Father should quit his job; they should relocate back to Toledo, Ohio; or, place Child in daycare. In these conversations, Father would then suggest Mother quit her job. Until the date of filing, the parties never agreed on how best to address the situation to properly care for Child.
(Appellant's App. Vol. II, p. 38). Father claims that the evidence does not support these findings. However, contrary to his claim, we find evidence, either by direct testimony from Father, Mother, and Dr. Szerlong or from Dr. Szerlong's report, to support these findings.
[¶27] Beginning with Finding #42, Mother testified that Child was not the type of child who would sleep until noon. She also stated that she saw Father, through the monitor, working for extended periods while wearing noise-canceling headphones as Child remained in his playpen area. Further, Dr. Szerlong testified that she had seen pictures and videos of Father working while wearing headphones. As for Finding #43, while Mother was not present, Father called Mother and admitted that Child had been bitten by their dog, and Parents agreed that Child had to be seen by a doctor. Father also admitted that Child had escaped from his play area and eaten a receipt and that he had thrown a bottle of vitamins to Child. Mother testified that when she saw Father working in a different room and the fact that the bottle of pills had been sitting on the playroom floor for a while, she called Father and he picks it up. Lastly, as for Finding #44, Father testified that he and Mother repeatedly discussed his choice of leaving his job so that he could take care of Child on a full-time basis. Because the evidence supports these findings, we find no error.
D. Findings #46, #53, and #56
[¶28] Father also challenges the following findings:
46. [] Father has thrown objects at Mother in the past. He has called her horrible derogatory names such as "cunt" and "bitch" and other similar degrading references.
* * * *
53. Dr. Szerlong discounted Father's history of aggressive actions toward Mother and described it as situational and minor. The court does not overlook such situations in its analysis of custody.
* * * *
56. [PC] Neihaus understands that Father has been willing to relocate back to Toledo, Ohio, but is using his acquiescence in
the relocation to get Mother to rescind her statements about domestic abuse.
(Appellant's App. Vol. II, pp. 39, 41). Father's argument that Finding #46 is unsupported by the evidence is another invitation to reweigh the evidence, which we will not do. See Tompa v. Tompa, 867 N.E.2d 158, 163 (Ind.Ct.App. 2007). The trial court found Mother's testimony regarding Father's use of derogatory names such as cunt, to be credible and truthful. As for Finding #53, the trial court opted to discredit the portion of Dr. Szerlong's report, which minimized the domestic incidents between Mother and Father as being situational and minor. As we are not allowed to reweigh the evidence, Father's argument is contrary to our standard of review. Id. Finally, as to Finding #56, PC Neihaus testified that Father informed her that he would consider relocating on condition that Mother withdrew her protective order against him. The findings are supported by the evidence, and Father's arguments are a request to reweigh the evidence, which we will not do.
E. Findings #122, #123, #125
[¶29] Beginning with Finding #125, the trial court found that Father's total amount of escrow refunds he received after the filing was $7,449.41. In arriving at this amount, the trial court noted in Finding # 122 that Father had received the parties escrow refund of $3,633.33 in December 2019, and that in Finding # 123 Father had gotten an additional escrow refund of $2,993.97 in September 2020. As to both findings, the trial court stated that Father had requested to retain those amounts and asked that they be reconciled in the division of the marital estate. Father only contests the first escrow amount ($3,633.33) and maintains that it was Mother, and not him, who received the first escrow repayment in December 2019, and that amount should not have been credited to him. Mother responds by asserting that while she did not address this at trial, her balance sheet demonstrated that the $3,633.33 was allocated to Father. In his reply brief, Father contends that Mother's assertion that she included the $3,633.33 in her balance sheet does not mean he received those funds, stands by his trial testimony, and he maintains that the trial court erred by crediting that amount to him. We agree with Father that the findings are erroneous and must be set aside because there is unchallenged testimony from Father that Mother received this amount. See Barkwill, 902 N.E.2d at 839 (holding that we will only set aside findings and conclusions if they are erroneous, that is, when the record contains no facts or inferences supporting them).
F. Findings #129 and #130
[¶30] These two findings relate to payments Father made on Mother's behalf during the pendency of the divorce. Father argues that to the extent that Finding #129 states that he paid the home insurance premium in May 2020, in the amount of $32.38, that finding is erroneous because he presented testimony that he paid approximately $1,200 and an additional $1,167.62 and Mother should have reimbursed him that amount. He further disagrees with Finding #130, which states that he paid $1,180 in real estate property taxes and argues that he paid about $2,000 and that an additional $820 should have been refunded to him. He, therefore, contends that an additional $1,987.62 or ($820+$1,167.62) should have been added to the expenses he expended on Mother's behalf.
[¶31] Mother argues that Father did not present documentary evidence to support his testimony, and any error in the trial court's calculation is harmless because she rebutted the presumption of an equal division of the marital estate. In Goosens v. Goosens, 829 N.E.2d 36, 39 (Ind.Ct.App. 2005), we determined that despite a mathematical error of $7,995.74, the error was considered a harmless error because the trial court equally divided the marital estate. In this case, as discussed below, Mother rebutted the equal division of the marital estate and the error in the trial court's calculation is not inconsequential. See In re B.J., 879 N.E.2d 7, 20 (Ind.Ct.App. 2008) (holding that a finding of fact is not prejudicial to a party unless it directly supports a conclusion). The mathematical errors, in this case, would prejudice Father if left undisturbed because any credits that Father received and any expenses he paid on Mother's behalf, potentially decreased his child support arrearage. That is certainly evident in Finding #134, as the trial court directed Mother to reimburse Father the difference, i.e., "($8,126-$7,449.41=$677.19)", and that reimbursement was applied to Father's child support arrearage, therefore bringing it down from $29,200 to $28,522.81. (Appellant's App. Vol. II, p. 58).
The marital estate summary sheet stated that Father should receive $40,400 and that Mother should receive $46,686.76. However, in Finding #138, the trial court ordered Mother to receive an additional $10,000 from Father's portion of the net proceeds to reduce Father's child support arrearage to $18,522.81.
[¶32] Our calculation is that $1,987.32, the additional amount for the home insurance and taxes that Father paid on Mother's behalf in the summer of 2020, if added to the original expenses $8,126, bumps the amount to $10,113.32. Also, if we deduct the escrow refund of $3,633.33 from the $7,449.41 that the trial court credited Father, it reduces Father's credit amount to $3,816.08. These new figures drastically reduce Father's child support arrearage because Mother would be required to pay Father a higher difference, i.e., $10,113.32-$3,816.08=$6,297.24. A higher reimbursement from Mother would decrease Father's child support arrearage to $22,902.73. Because the evidence does not support Findings #129 and #130, we find them to be erroneous.
As directed in Finding #138, if $10,000, a portion of the net proceeds are applied to Father's child support arrearage, it would further decrease to $12,902.73.
III. Custody Order
[¶33] Father contends that the trial court erred in awarding primary physical custody and sole legal custody of Child to Mother. Our standard of review of initial child custody determinations is well-settled. Child custody decisions fall within the trial court's sound discretion. Swadner v. Swadner, 897 N.E.2d 966, 973 (Ind.Ct.App. 2008). Both parents are presumed equally entitled to custody in the initial custody determination. Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind.Ct.App. 2010). The trial court shall determine custody and enter a custody order in accordance with the best interests of the child by considering all relevant factors, including:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(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 parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
Ind. Code § 31-17-2-8. In its Order, the trial court noted that it had considered the Indiana Code section 31-17-2-8 factors, and it determined that it was in the best interests of Child that Mother maintain primary physical and sole legal custody. Father challenges both determinations.
1. Physical Custody
[¶34] Father contends that the trial court's findings of fact are insufficient because they did not list the statutory factors. We "'generally presume trial courts know and follow the applicable law.'" Ramsey v. Ramsey, 863 N.E.2d 1232, 1239 (Ind. 2007) (quoting Thurman v. State, 793 N.E.2d 318, 321 (Ind.Ct.App. 2003). That presumption "can be overcome if the trial court's findings lead us to conclude that an unjustifiable risk exists that the trial court did not follow the applicable law." Id. The plain language of the statute only requires a trial court to "consider" the factors, not to make a finding regarding each one. See I.C. § 31-17-2-8. See also, Russell v. Russell, 682 N.E.2d 513, 515 (Ind. 1997) (holding that a trial court is not required to make specific findings). Such findings are only required if requested in writing pursuant to Indiana Trial Rule 52(A). Id. at 515 n.2. Neither party made such a request, instead the trial court directed the parties to prepare proposed findings. In finding that an award of primary physical custody to Mother was in Child's best interests, the trial court stated that it had "considered all relevant factors," and Father has not stated which statutory factors the court purportedly failed to take into account and how any such alleged failure impacted the trial court's decision. (Appellant's App. Vol. II, p. 43). Therefore, Father's bald assertions of error are without merit because the parties presented evidence of the section 31-17-2-8 factors such as Child's age, the contentious relationship between Parents, the wishes of Parents with respect to custody given that both requested primary physical custody, and we do not find anything in the record that would lead this court to conclude that the trial court did not consider the relevant factors.
2. Sole Legal Custody
[¶35] Father also argues that the trial court abused its discretion by awarding Mother sole legal custody of Child by finding that joint legal custody was no longer feasible. In order to award joint legal custody a trial court must find that an award of joint legal custody would be in the best interests of the child. I.C. § 31-17-2-13. In making this determination, a trial court "shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody." I.C. § 31-17-2-15. Other factors the court should consider include:
(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint 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 custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.I.C. § 31-17-2-15. Our courts have reiterated that the second factor, whether the parents are willing and able to cooperate in advancing the child's welfare, is of particular importance in making legal custody determinations. Julie C., 924 N.E.2d at 1260; see also Carmichael v. Siegel, 754 N.E.2d 619, 635 (Ind.Ct.App. 2001) (holding that one of the key factors to consider when determining whether joint legal custody is appropriate is whether the parents who are awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare). Where "the parties have made child-rearing a battleground, then joint custody is not appropriate." Periquet-Febres v. Febres, 659 N.E.2d 602, 605 (Ind.Ct.App. 1995) (quotation omitted). "'Indeed, to award joint legal custody to individually capable parents who cannot work together is tantamount to the proverbial folly of cutting the baby in half in order to effect a fair distribution of the child to competing parents.'" Swadner, 897 N.E.2d at 974 (quotation omitted).
[¶36] Father contends that the only evidence offered regarding Parents inability to coparent effectively was Mother's self-serving testimony and PC Neihaus' belief that Parents could not communicate effectively without her input. He claims that the evidence was insufficient to conclude that joint legal custody was impractical because Dr. Szerlong recommended that parties should share legal custody of Child.
[¶37] Following the Provisional Order, which granted Mother temporary primary physical custody, but joint legal custody with Father exercising parenting time, Parents continually disagreed. Father would involve the opinion of third parties and the police to settle co-parenting disagreements. For example, Father involved the police when a handkerchief was not returned to Child, and another time when Mother failed to timely leave the police station after a parenting time exchange with Father. Then during another incident, Father threatened to call the police if he was not part of Child's doctor's appointment despite Covid-19 protocols, which authorized only one parent at the visit. The nurse allowed Father for that visit so the police would not be involved. There was also evidence of communication problems instigated by Mother. She made unilateral decisions like enrolling Child in daycare and using her boss' wife to take care of Child and failed to involve Father in the decision-making process, and she seemed rigid on issues relating to Child's daycare schedule, medical appointments, rescheduling of parenting time, and pickups and drop-offs. However, we consider only the evidence most favorable to the judgment. Carmichael, 754 N.E.2d at 635. "We believe that the issue of who was being uncooperative with whom was a very fact-sensitive determination, necessarily requiring the weighing of evidence and judging the credibility of witnesses, functions that rested exclusively with the trial court." Id. at 635.
[¶38] Several months after Parents had separated, and at the onset of the Covid-19 pandemic and following the closure of Child's daycare and extracurricular activities between February and April 2020, Parents could not agree on a workable parenting time schedule. It is around this time that Father sought the appointment of a parenting coordinator because Parents constantly argued about additional parenting time for special days, Child's daycare schedule, Child's swim lessons, and Child's medical appointments. At the final hearing in August 2021, PC Neihaus testified that initial co-parenting issues originated because Parents did not trust each other. For instance, Father appeared to have accessed the marital home while Mother was in possession because he had access to the home's security system. Father also gained access to Mother's emails and saw some damaging emails between Mother and maternal grandmother, and Father accessed Mother's phone records and contacted people on Mother's contact list. To address these trust issues, she directed the Parents not to hack into the other person's accounts even if they had access. PC Neihaus added that she had to deal with issues like punctuality, scheduling of doctor appointments, and how doctor visits are to be conducted. To avoid conflicts surrounding Child's doctor visits, she directed that one parent should schedule and attend doctor visits and the other should manage dental visits for a year and then alternate every year. With this new plan, Mother would go "above and beyond to involve" Father during doctor visits to enable him to be on the same page. (Tr. Vol. III, p. 8). Mother would FaceTime Father or put her phone on speaker so that Father would participate during the visit. On the other hand, Father had not done the same for Mother, and he still had trouble keeping Mother in the loop regarding Child's doctor visits. One time after Child got sick and Child had to be seen by a doctor, Father did not inform Mother about the visit, and Mother found out through the doctor. Father would also communicate with Child's speech therapist and would not copy Mother on the emails.
[¶39] Father claims that the evidence shows that Parents can collaborate and have been able to share legal custody for at least two years. The record shows that almost a year after separation, Parents had not demonstrated healthy coparenting behavior despite their expressed desire that they wanted to co-parent effectively. PC Neihaus testified that since her appointment in June 2020, she had met Parents once every month for a whole year. PC Neihaus stated that Parents' conflicts were due to different parenting styles, and as a result, it made it difficult for them to co-parent. While noting that Parents had improved on addressing specific co-parenting issues, she found that Parents' situation had not been a standard parenting coordination case which by month six, should have reflected noticeable improvements. PC Neihaus indicated that during her year-long tenure, her involvement had not been diminished; instead, it was substantially increased, due to the number of conflicts between Parents. She claimed that her role as parenting coordinator was not indefinite, and that Parents could not depend on her forever to solve their issues.
[¶40] To award joint legal custody to individually capable parents who cannot work together is "tantamount to the proverbial folly of cutting the baby in half in order to effect a fair distribution of the child to competing parents." Swadner, 897 N.E.2d at 974. Contrary to his claim that Parents excelled at co-parenting, Father himself testified that co-parenting was not working out. Mother similarly believed that joint legal custody would be intolerable since Parents continued to have co-parenting issues. While Dr. Szerlong recommended joint legal custody for Parents, she proposed co-parenting counseling because Parents continued to experience co-parenting problems. PC Neihaus, on the other hand, opined that joint legal custody was not suitable in this case because Parents could not co-parent effectively without her help.
[¶41] The trial court, in this case, had the heavy task of selecting one parent over another regarding legal custody. There was mutual finger-pointing where Parents would say that the other was problematic, and the record is saturated with evidence documenting the conflicts and lack of cooperation associated with Parents' joint legal custody arrangement. There was an evidentiary basis for the trial court to conclude that Parents' numerous disagreements regarding various aspects of Child's upbringing, and their communication breakdown, made child-rearing a battleground and, that without the help of others, they could not co-parent effectively. Based on the record before us, we cannot conclude that the trial court abused its discretion in granting Mother sole legal custody of Child.
IV. Relocation
[¶42] Father also challenges the trial court's Order allowing Mother to relocate with Child to Toledo, Ohio. A relocating parent must file a timely notice of his or her intention to relocate, and the nonrelocating parent must file a response in which he or she may object to the relocation. I.C. §§ 31-17-2.2-1, -5. The relocating individual then "has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason." I.C. § 31-17-2.2-5(e). "If the relocating individual meets the burden of proof under subsection (e), the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interests of the child." I.C. § 31-17-2.2-5(f). In determining whether relocation is in a child's best interests, the trial court must consider the following factors:
(1) The distance involved in the proposed change of residence.
(2) The hardship and expense involved for the nonrelocating individual to exercise parenting time. . .
(3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time . . . including consideration of the financial circumstances of the parties.
(4) Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a nonrelocating individual's contact with the child.
(5) The reasons provided by the:
(A) relocating individual for seeking relocation; and
(B) nonrelocating parent for opposing the relocation of the child.
(6) Other factors affecting the best interest[s] of the child.I.C. § 31-17-2.2-1(c). Our relocation statutes do not require findings of fact, but, at a minimum, there must be evidence in the record on each of the above factors. Wolljung v Sidell, 891N.E.2d 1109, 1113 (Ind.Ct.App. 2008).
The last category refers to the statutory factors found in Indiana Code section 31-17-2-8 which include, among other things, the child's age and sex; the parents' wishes; the child's wishes, with the wishes of children fourteen years or older being given more weight; the child's relationship with parents, siblings, and any other person affecting the child's best interests; and the child's adjustment to home, school, and the community.
[¶43] The trial court found that Mother's relocation to Toledo from Indianapolis was made in good faith and for a legitimate reason, and that Father failed to establish that it would not be in Child's best interests. Father's challenge on appeal, however, is that the trial court's findings are insufficient because the trial court failed to consider two of the relevant statutory factors, namely, hardship and expense to Father, and the feasibility of preserving Father's relationship with Child through suitable parenting time arrangements. We disagree.
Although Father does not claim that there is a lack of evidence on the other statutory factors, the record includes ample evidence on those factors as well.
[¶44] The record shows that the trial court thoughtfully considered the hardship and expense involved. Evidence was presented that Mother's proposed move from Indianapolis to Toledo presented a distance of approximately 200 miles and three hours of driving time. It was clear that Father's visitation would not occur frequently, and that there would be expenses associated with his parenting time. At the time of the hearing, Parents were both employed, and Father did not submit evidence showing that there would be any hardship to exercise his parenting time across state lines. Further, it appears that the financial hardship of arranging parenting time now falls on both parties. To mitigate Father's expenses, in Finding #89, the trial court directed Parents to meet at a determined halfway point between Father's residence in Indiana and Mother's new residence in Ohio for parenting time exchanges.
[¶45] As for the feasibility of preserving the relationship between Father and Child through suitable parenting time, there is evidence in the record and findings to suggest the trial court's consideration of this factor. At the time of the final hearing, Father's parenting time was on Monday, Wednesday, and Thursday afternoons. He also had a mid-week overnight and parenting time every other weekend. Father opposed Mother's move by arguing that the move would "cut down on the mid-week" parenting time. (Tr. Vol. III, p. 223). Contrary to his claim that he would have less parenting time, when PC Neihaus asked Father whether he would prefer to move to Ohio to be closer to Mother and Child, Father stated that "he would rather stay in Indiana and have less time." (Tr. Vol. III, p. 21).
[¶46] Further, we find that the Order ensured that Father would receive an appropriate amount of parenting time to preserve his relationship with Child especially because distance is major factor. For example, the trial court anticipated that Father would often travel to Toledo, Ohio, for additional parenting time "and will ultimately enjoy more than the minimum number of overnights the IPTG suggests is appropriate for a 3-year-old where distance is a factor." (Appellant's App. Vol. II, p. 50). While Father was missing out on his midweek parenting time, he was getting extended parenting time during other times and it is clear that the trial court considered the feasibility of preserving the relationship between Father and Child by offering suitable parenting time. We therefore find no error.
The commentary in Section III of the IPTG provides that when distance is a major factor, "[f]or a child 3 and 4 years of age, up to six (6) one week segments annually, each separated by at least (6) weeks. Including the pickup and return of the child, no segment shall exceed eight (8) days." (Italics omitted). Additionally, the Guidelines provide that "[w]hen the non-custodial parent is in the area where the child resides, or when the child is in the area where the non-custodial parent resides, liberal parenting time shall be allowed. The parents shall provide notice to each other, as far in advance as possible, of such parenting opportunities." Par. Time G., Sec. III (5).
V. Division of Property
[¶47] Father contends that the trial court abused its discretion by awarding an unequal division of the marital property. In dissolution proceedings, the trial court is required to divide the property of the parties "in a just and reasonable manner[.]" I.C. § 31-15-7-4(b). This division of marital property is a two-step process: first, the trial court must ascertain what property is to be included in the marital estate; second, the trial court must fashion a just and reasonable division of the marital property. Smith v. Smith, 136 N.E.3d 275, 281 (Ind.Ct.App. 2019). Pursuant to Indiana Code section 31-15-7-5, an equal division of marital property is presumed to be just and reasonable, however, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors:
(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell
in the family residence for such periods as the court considers just to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the parties.I.C. § 31-15-7-5. These statutory factors are to be considered as a whole, with no one factor necessarily justifying an unequal division. Johnson, 181 N.E.3d at 375. However, "when ordering an unequal division" of marital assets, the trial court must consider all relevant factors under the Division-of-Property Statute. Roetter v. Roetter, 182 N.E.3d 221, 227 (Ind. 2022) (citation omitted). Id. Otherwise, the "trial court runs the risk of dividing a marital estate in an unreasonable manner." Id. Further, we note that the party challenging the trial court's division of marital property must overcome a strong presumption that the trial court considered and complied with the applicable law. Goodman v. Goodman, 94 N.E.3d 733, 742 (Ind.Ct.App. 2018), trans. denied. We do not reweigh the evidence or assess the credibility of the witnesses; instead, we consider only the evidence most favorable to the trial court's decision. Id.
[¶48] The total marital estate as the trial court categorized it, consisted of proceeds from the sale of the marital home, parties' bank accounts, vehicles, retirement and investment accounts, and minimal debt. A significant portion of the martial estate comprised of $87,086.76, which was mainly proceeds from the sale of the marital home. After including the net proceeds, it assigned $40,400 to Father and $46,686.76 to Mother. Father claims that the trial court erred by finding that Mother had rebutted the presumptive equal division of the marital estate by offsetting the down payment of the parties' marital home in favor of Mother and by entering an erroneous finding stating that
107. Mother brought a retirement account into the marriage and put a $46,500 down payment on the marital residence. The parties' marriage is of relatively short duration. Father did not produce evidence as to any funds he brought into the marriage, although the [c]ourt has no reason to disbelieve[,] he brought personal property, a vehicle, and a minimal amount of his own funds into the marriage. Mother admitted that Father helped with making the down payment for the marital residence.
(Appellant's App. Vol. II, p. 52). Father claims that Finding #107 is insufficient to support a deviation from the presumptive equal division of the marital estate because he contributed to this down payment. Father argues that with no documentary evidence to show Mother's sole contribution of the down payment, Mother's admission that he also helped contribute, and the trial court's closing statement acknowledging his contribution, Mother had not rebutted the presumptive 50/50 division of the marital estate.
[¶49] Specific to the division of marital property, it has been held that the burden of producing evidence as to the value of martial assets rests upon the parties to the dissolution proceeding. In re Marriage of Coyle, 671 N.E.2d 938, 945 (Ind.Ct.App. 1996). Father invited the error of not providing his actual contribution to the down payment. Balicki v. Balicki, 837 N.E.2d 532, 541 (Ind.Ct.App. 2005), trans. denied. If Father wanted the trial court to credit his contribution, he should have provided those values to the trial court. Father cannot take advantage of his own failure and argue that the trial court should have assigned his contribution to the down payment.
[¶50] Father then contends that the trial court offered "no other findings pertaining to the factors contained in Indiana Code section 31-15-7-5, and as such, the trial court's unequal division of the marital estate is clearly erroneous." (Appellant's Br. p. 31). We reiterate that "[w]hen ordering an unequal division, the trial court must consider all of the factors set out in [the statute]." Wallace v. Wallace, 714 N.E.2d 774, 780 (Ind.Ct.App. 1999) trans. denied (emphasis in original). However, it "goes too far" to suggest that "the trial court must explicitly address each of the considerations in [Indiana Code] section 31-15-7-5." Eye v. Eye, 849 N.E.2d 698, 702 (Ind.Ct.App. 2006).
[¶51] At the final hearing, Mother requested the unequal division of the marital estate, and she supported that request with her testimony by stating, "I mean I put down a down payment on our house for like $46,500. Not much. I mean we were barely married for two years." (Tr. Vol. III, p. 39). Other than finding that Mother had contributed towards the down payment of the marital home, the trial court noted that the parties' marriage had been short. See Roetter, 182 N.E.3d at 227 (holding that a "short-lived marriage may rebut the presumption favoring equal division, especially if one party brought substantially more property into the marriage."). The trial court also found that Parents had obtained other assets on their own before marriage or during the marriage and also found their earning ability to be the same. Father's assertion that the trial court did not consider other relevant factors listed in Indiana Code section 3115-7-5 to support the unequal division of the marital property fails. In the end, Father's arguments regarding the trial court's unequal division of the marital estate are nothing more than invitations to reweigh the evidence, which we will not do.
VI. Weekly Gross Income Calculation
[¶52] "A trial court's determination of child support obligations is presumptively valid and given broad deference upon appeal." In re Marriage of Blanford, 937 N.E.2d 356, 360 (Ind.Ct.App. 2010). We will not reverse the trial court's calculation of income for each parent unless it is clearly erroneous. Naggatz v. Beckwith, 809 N.E.2d 899, 902 (Ind.Ct.App. 2004). "If the trial court's income figure includes the income required by our Child Support Guidelines and 'falls within the scope of the evidence presented at the hearing,' the trial court's determination is not clearly erroneous." Id at 903 (quoting Ratliff v. Ratliff, 804 N.E.2d 237, 244 (Ind.Ct.App. 2004) trans denied.
[¶53] When devising a child support order, the trial court's first task is to determine the weekly gross income of each parent. Ratliff v. Ratliff, 804 N.E.2d 237, 245 (Ind.Ct.App. 2004). Indiana Child Support Guideline 3(A)(1) defines "weekly gross income" as
[A]ctual weekly gross income of the parent if employed to full capacity, potential income if unemployed or underemployed, and the value of in-kind benefits received by the parent.
The Guidelines however, "do not require or encourage parents to make career decisions based strictly upon the size of potential paychecks, nor do the Guidelines require that parents work to their full economic potential." Sandlin, 972 N.E.2d at 375. "Obviously, a great deal of discretion will have to be used in this determination." Ind. Child Support Guideline 3(A), cmt 2c.
[¶54] The trial court entered the following pertinent findings in support of the child support order:
40. After rearranging his work schedule to take care for [sic] Child, Father earns approximately $51,000 per year. During the global pandemic, his hours at Dixon Golf were reduced which caused his earnings to drop to $32,500 in 2020 ($625 per week). This reduction in hours and income caused him to find a second job at Wood Insurance where he earns $20 per hour and works 40 hours per week or $800 per week. In total, Father earns $1,425 per week. Since date of filing, [] Child has been placed in daycare. Father's income will increase now that he no longer will be caring for Child during the work day.
41. Mother is a Physical Therapist and works at ATI since the middle of 2018 and earned approximately $73,000 until the global pandemic struck. Since then Mother has also seen work hours reduce and now works 30 hours per week and earns $38 per hour, or $1,140 per week.
(Appellant's App. Vol. II, pp. 37, 38). In calculating a parent's weekly gross income, "[t]he phrase 'actual income' has been interpreted by this court as existing income currently received by a parent and available for his or her immediate use." Scoleri v. Scoleri, 766 N.E.2d 1211, 1217 (Ind.Ct.App. 2002). In arriving at Father's weekly gross income of $1,425, it is clear from Finding #40 that the trial court considered Father's combined weekly income of $625 from Dixon Golf and $800 from Wood Insurance. At the final hearing in August 2021, Father testified that when the Covid-19 outbreak began and his work at Dixon Golf slowed, he sought supplemental income from a second job at Wood Insurance. Father, however, claimed that Wood Insurance went out of business. Part of Father's evidence was a letter from Wood Insurance indicating that Wood Insurance ceased its operations on February 28, 2021, and that Father was terminated from his position as of that date. Because Father was only pulling an income from Dixon Golf, the inclusion of his previous weekly pay from Wood Insurance was clearly erroneous. For this finding, we agree with Father that the trial court committed error when it found his combined weekly gross income to be $1,425. Accordingly, we remand to the trial court to consider and weigh the evidence to determine a weekly income for Father.
[¶55] Father also argues that the trial court erroneously determined that Mother's weekly gross income was $1,140 "because it did not fall within the scope of the evidence presented at the final hearing." (Appellant's Br. p. 24). We disagree. Father's worksheet calculated Mother's weekly gross income at $1,469 per week, which extrapolates to $76,388 per year. Mother's worksheet calculated her weekly gross income at $1,073.84, which translates to $55,839.68 per year. Mother testified that during the Covid-19 pandemic, her hours of work were reduced to thirty, and she earned $38 per hour which translates to a weekly gross pay of $1,140. Therefore, the evidence supports the trial court's calculation of Mother's weekly gross income. Alternatively, Father contends that Mother testified that she had been offered a full-time job in Toledo, and that her pay would be more significant. Father maintains that "Mother's own testimony regarding her new job offer further highlights the erroneous nature of the trial court's income calculation." (Appellant's Br. p. 26). Mother's potential annual salary or weekly gross pay for her new job was not part of the record, and we reiterate that the trial court's determination of Mother's income of $1,140 was within the scope of the evidence presented at the final hearing.
Father additionally argues that Finding #90 is erroneous because he submitted a child support worksheet. However, even if the trial court made an incorrect statement, the mistake is harmless because the trial court issued another finding, i.e., Finding #25 indicating that Father had submitted a child support worksheet. Thus, the erroneous portion of Finding#90, indicating that Father had not filed a child support worksheet is "merely harmless surplusage" and, consequently, is not grounds for reversal. See In re B.J., 879 N.E.2d 7, 20 (Ind.Ct.App. 2008), trans. denied.
[¶56] Although we conclude the trial court did not abuse its discretion in calculating Mother's weekly gross income, it erred in the calculation of Father's gross income, and we remand for correction.
CONCLUSION
[¶57] Based on the foregoing, we conclude that the trial court's challenged findings are supported by the evidence and that the trial court did not abuse its discretion by awarding Mother sole legal and physical custody of Child, granting her relocation request, and dividing the marital estate.
[¶58] However, we find an error with the trial court's calculation of the reimbursement Mother had to pay Father, and the evidence does not support its approach to calculating Father's gross income. We therefore reverse and remand to the trial court with instructions to recalculate (1) the reimbursement amount Mother is required to pay Father; and (2) Father's child support obligation using the gross income data that was presented to the trial court.
[¶59] Affirmed in part, reversed in part, and remanded.
[¶60] May, J. and Tavitas, J. concur