# Lisa Haynes Whorley v. John F. Whorley, Jr. (mem. dec.)

> Indiana Court of Appeals · October 27, 2017

URL: https://www.frixlaw.com/law-library/cases/4215546

## Case

- **Court:** Indiana Court of Appeals
- **Decided:** October 27, 2017
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4215546

## How later opinions describe it (automated extraction)

- holding the trial court’s method of averaging two values offered into evidence to determine the value of an asset is not against the logic and effect of the facts before the court
- holding trial court properly considered wife’s contributions during the parties’ cohabitation before marriage
- holding evidence supported trial court’s determination that joint custody was in child’s best interest over mother’s objection because there was no evidence that “child rearing [had become] a battleground”
- holding trial court’s determination that value of farm equipment was an average between the two values offered by the parties was within the scope of the evidence and not an abuse of discretion

## Opinion text

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 27 2017, 8:39 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Irving Marshall Pinkus Katherine A. Harmon
Pinkus & Pinkus Jared S. Sunday
Indianapolis, Indiana Mallor Grodner LLP
Indianapolis, Indiana
Christopher Price
Certified Legal Intern
Pinkus & Pinkus
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Lisa Haynes Whorley, October 27, 2017
Appellant-Petitioner, Court of Appeals Case No.
29A05-1611-DR-2637
v. Appeal from the Hamilton
Superior Court
John F. Whorley, Jr., The Honorable Daniel J. Pfleging,
Appellee-Respondent. Special Judge
Trial Court Cause No.
29D02-1406-DR-5652

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 29A05-1611-DR-2637 | October 27, 2017 Page 1 of 42
Case Summary and Issues
[1] Lisa Haynes Whorley (“Mother”) and John F. Whorley, Jr. (“Father”) were

married in 2003 and, after having two children together, separated in 2014. The

trial court held a dissolution hearing over eight days in 2016 and issued

Findings of Fact and Conclusions of Law on Final Dissolution on November 9,

2016. Mother appeals the trial court’s dissolution decree, raising the following

consolidated issues for our review:

1) Whether the trial court erred in awarding the parties joint legal
custody of the children and naming Father the ultimate decision-
maker;

2) Whether the trial court erred in determining the opportunity
for additional parenting time need only be offered to Mother
when Father or Father’s housekeeper was unavailable to care for
the children for a period that included an overnight;

3) Whether the trial court erred in its determination of Father’s
gross weekly income for child support purposes;

4) Whether the trial court properly valued certain items of
marital property; and

5) Whether the trial court erred in unequally dividing the marital
estate, awarding 57.5% to Father and 42.5% to Mother.

[2] With respect to issues concerning the parties’ children, we conclude the trial

court did not err in awarding joint legal custody of the children to the parties

while designating Father as the ultimate decision-maker in the event of an

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impasse or in determining the opportunity for additional parenting time need

only be extended if a party needs child care overnight. The trial court did err,

however, in determining the opportunity for additional parenting time need not

be extended to Mother if Father’s housekeeper is available to care for the

children because she is not a “household family member.” The trial court also

erred in failing to account for Father’s irregular income in the child support

calculation.

[3] With respect to issues concerning the marital estate, we conclude the trial court

did not err in valuing certain items of marital property. However, we conclude

there is no rational basis set forth in the trial court’s order supporting an

unequal division of marital property because the trial court clearly erred in its

findings regarding one of the relevant statutory factors and we are unable to

infer from the trial court’s findings that it considered two additional factors.

[4] We therefore affirm in part, reverse in part, and remand this case to the trial

court.

Facts and Procedural History
[5] Mother and Father met in Indianapolis in 1996 when they both worked for the

same employer. In 1998, Father was offered a promotion that required he

relocate to Las Vegas, Nevada. At Father’s request, Mother left her

employment and moved to Las Vegas to be with him. Mother made a down

payment on a house the parties owned and lived in together for a couple of

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years. The parties eventually sold that house; Mother moved into an apartment

and Father bought a new house, although the two were engaged. Marisol

Ortega began providing housekeeping services for Father at his home in 2002.

[6] The parties married in 2003. By this time, Father had approximately

$6,000,000 in a Merrill Lynch account. The parties had their first child in 2004.

Ortega then began providing nanny services for the Whorleys as well as

housekeeping. Also in 2004, the parties purchased farmland in Murfreesboro,

Tennessee, across the road from the farm where Father was born, for

$1,000,000. Mother and Father moved back to Indiana in 2005; Ortega came

with them to be a live-in housekeeper and nanny, a position she still retains in

Father’s household. The parties’ second child was born in 2006. The children

have attended a private school in Indianapolis since pre-school.

[7] Mother was a Certified Public Accountant and was employed until the parties’

first child was born. When she left Indiana, she was making approximately

$90,000 per year. She made $40,000 per year at her last job in Las Vegas. Once

the parties’ children were born, Mother was a stay-at-home parent for ten years

until these dissolution proceedings began. She did not keep her CPA license

current during this time. By the final hearing, Mother was working as a

substitute at the children’s school. Throughout the parties’ relationship, Mother

suffered from alcoholism. Father was unaware of her illness until October

2012, at which time Mother checked into an outpatient treatment program with

Father’s knowledge and support. Mother has been sober since October 2012

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and has taken a professionally monitored home breathalyzer test twice a day

since August 2013.

[8] After returning to Indiana, Father retired from the employment that had taken

him to Las Vegas. He was involved with several different endeavors after his

retirement in 2007. In 2008, the parties gave $400,000 to Oak Tree Associates,

LLC, a real estate investment company in which Father’s former boss, James

Lintzenich, was the primary partner. The money was given pursuant to a

Promissory Note between Oak Tree and the Whorleys with a promise of

repayment with interest by August 15, 2012. Father testified that the money

was not repaid by that date, nor has any money been received since. In fact,

Oak Tree no longer exists as a corporate entity. In 2012, Father started Core

Principle, a company “intended to impact college student performance through

increasing class attendance using GPS fencing technology . . . .” Transcript,

Volume V at 145. Father was the sole owner of the company. Mother initially

assisted with accounting and payroll services and was the company’s CFO for a

time. In 2014, the parties invested $300,000 in Core Principle from a margin

credit line against a joint account. Lintzenich loaned Core Principle $400,000

in late 2014/early 2015 pursuant to a convertible note. Mother insisted this

money was actually repayment for the parties’ earlier loan to Oak Tree but

Father categorically denied that was the case. Father invested an additional

$195,000 over the last half of 2015 out of his pre-dissolution disbursement from

one of the parties’ joint accounts. Father testified that because of the

uncertainty surrounding the business as an asset subject to division in the

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divorce, he was unable to secure additional outside investments and he closed

the company in early 2016. In 2015, Father returned to employment with his

original employer.

[9] The parties separated in 2014. A provisional agreement in 2015 provided the

parties would share joint legal and physical custody of the children, with the

parties splitting parenting time equally. The parties adopted the Indiana

Parenting Time Guidelines and made provisions regarding opportunities for

additional parenting time if a parent required child care for two or more hours.

The trial court later amended this provision to require the opportunity for

additional parenting time to be extended only if child care was needed for three

or more hours “by any individual other than someone who is defined as a

family or household member as defined in Shelton v. Shelton, 840 N.E.2d 835

(Ind. 2006).” Appellee’s Appendix, Volume 2 at 50. Father interpreted this to

mean if Ortega could be with the children, Mother need not be offered

additional parenting time. Also, as part of the provisional agreement, each

party received a pre-dissolution distribution of $1,000,000 from their joint

Fidelity account.

[10] The trial court heard testimony and received 114 exhibits into evidence over

eight days in February, July, and August of 2016. After the first four days of

hearings in February, the trial court dissolved the marriage of the parties and

bifurcated the remaining issues. On November 9, 2016, the trial court issued its

Findings of Fact and Conclusions of Law on Final Dissolution addressing

issues of custody, parenting time, and child support, as well as the value of

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certain marital assets1 and the division of the marital estate. Relevant to the

issues presented on appeal, the trial court concluded:

10. Father, as the party seeking other than an equal distribution
of the property, has the burden of presenting relevant evidence to
rebut the presumption that an equal division of the marital
property between the parties is just and reasonable and has done
so pursuant to the findings of the Court.

11. The Court further finds that Father be awarded a larger
percentage of the assets based upon the evidence in support of the
contribution of Father to the acquisition of the property,
regardless of whether the contribution was income producing, the
extent to which the property was acquired by Father prior to the
marriage or through inheritance or gift, and the dissipation of the
marital estate due to Mother’s alcohol treatment programs and
over-employment of the children’s nanny during the marriage, all
in compliance with Ind. Code § 31-15-7-5.

***

15. The best interests of the children are served by the parents’
continual sharing of joint physical custody.

16. The best interest[s] of the minor children are served by the
parents’ sharing of joint legal custody, with Father having the
ultimate decision making authority if a dispute arises. Both
parties are ordered to not withhold agreement on legal decisions
unreasonably.

1
The parties stipulated to the value of several assets prior to trial.

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17. The parents shall continue to share equal parenting time with
the minor children with a week-on week[-]off schedule. Holidays
and special days shall be pursuant to the Indiana Parenting Time
Guidelines, with Father designated as the custodial parent.

18. Father should pay support to Mother in the amount of
$622.12 per week through the Indiana Child Support Collection
Unit, pursuant to Court’s Exhibit B, the attached Child Support
Obligation Worksheet [finding Father’s weekly gross income to
be $7,848.27].

Appealed Order at 23-24. Mother now appeals certain provisions of the trial

court’s order.

Discussion and Decision
I. Standard of Review
[11] The parties requested the trial court enter findings of fact and conclusions

thereon pursuant to Trial Rule 52(A). We therefore apply the following two-

tier standard of review: we first determine whether the evidence supports the

findings of fact and then determine whether the findings of fact support the

judgment. Troyer v. Troyer, 987 N.E.2d 1130, 1134 (Ind. Ct. App. 2013). We

will set aside findings if they are clearly erroneous, which occurs only when the

record contains no facts to support them either directly or by inference.

Campbell v. Campbell, 993 N.E.2d 205, 209 (Ind. Ct. App. 2013), trans. denied. A

judgment is clearly erroneous if it applies the wrong legal standard to properly

found facts. Id. To determine whether the findings or judgment are clearly

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erroneous, we consider only the evidence favorable to the judgment and all

reasonable inferences therefrom, and we do not reweigh the evidence or assess

witness credibility. Granzow v. Granzow, 855 N.E.2d 680, 683 (Ind. Ct. App.

2006).

II. Child Custody
[12] The trial court made the following findings about custody of the parties’

children:

20. Both parties underwent psychological testing . . . . [The
doctor] did not see anything in the psychological testing which
would prevent either party from being able to appropriately
parent the children.

21. Certain actions by both parties have not been in the best
interest of the minor children . . . .

22. Mother struggled with alcoholism throughout the years until
attending an outpatient program at Fairbanks in 2012.

23. Mother has been sober since October 11, 2012 as confirmed
by her twice daily testing using the SoberLink device.

24. Father refuses to accept Mother’s recovery.

25. Father wishes to have the children evaluated to determine if
Mother’s drinking alcohol during pregnancy had a negative effect
on the children’s health or contributed towards their medical
conditions. Mother is adamantly opposed to this occurring. The
Court refuses to order such an evaluation.

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26. The children have been counseling with Dr. Dalton for over
two (2) years.

27. Dr. Dalton . . . testified that the children still need
counseling. . . . The Doctor believed the parties were incapable of
co-parenting at this time.

28. Father has requested the parties share physical custody of the
children and that he receive sole legal custody. Mother has
requested she be granted sole physical custody and that the
parties share legal custody, with her being the ultimate decision
maker.

29. The Court hereby finds that it is in the best interest of the
minor children that the parents continue to share joint physical
custody.

30. The Court hereby further finds that it is in the best interest of
the minor children that the parents share joint legal custody, with
Father having the ultimate decision making authority if a dispute
arises. Both parties are ordered to not withhold agreement on
legal decisions (regarding education, health care, and the
religious upbringing of the children) unreasonably.

Appealed Order at 4-5.

[13] It is somewhat difficult to discern Mother’s true argument regarding the trial

court’s custody decision. She argues the trial court erred in awarding joint legal

custody without considering all the relevant factors, referencing disharmony

and contentiousness between the parties that “all but guarantee[s] the inability

of the parties to successfully co-parent.” Brief of Appellant at 22. That

argument would make it seem she does not believe the trial court should have
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awarded joint legal custody. Yet, she requested joint legal custody before the

trial court. She also argues the trial court erred in awarding Father “de facto

sole legal custody” by making him the ultimate decision-making authority in

case of a dispute, but that is essentially the result she sought in the trial court,

albeit in her favor. Id. at 19. She requests a reversal of the trial court’s order,

but, because of her inconsistent positions, it is unclear what result she is

ultimately advocating. Therefore, we will simply review the trial court’s

decision to grant joint legal custody to determine if it is supported by the law

and the evidence.

[14] A trial court may award joint legal custody of a child if the court finds that such

an award would be in the best interest of the child. Ind. Code § 31-17-2-13.

The court is to consider as “a matter of primary, but not determinative,

importance” that the parents have agreed to an award of joint custody. Ind.

Code § 31-17-2-15. The court is also to consider:

(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;

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(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.

[15] Id. The trial court acknowledged this statutory authority regarding the award of

joint custody in its order. See Appealed Order at 3-4, ¶ 18. Mother contends

the trial court erred in awarding joint custody with Father as the final decision-

making authority because it did not consider all the relevant factors.

Specifically, Mother contends the trial court erred in “placing so heavy an

emphasis on Mother’s past illness . . . as a basis for depriving her of legal

custody over her children” while not considering “Father’s present day

suitability and fitness as a parent.” Br. of Appellant at 20-21.

[16] With respect to custody determinations, we presume the trial court reached the

correct result and we review its decision for an abuse of discretion. Periquet-

Febres v. Febres, 659 N.E.2d 602, 605 (Ind. Ct. App. 1995), trans. denied.

Although the ability to cooperate is a prime consideration in an award of joint

custody, the statute also states agreement to joint custody is of primary but not

determinative importance. Therefore, an order of joint custody may be made

even over the objections of one of the parents, although “a more careful

scrutiny of evidence is necessary.” Walker v. Walker, 539 N.E.2d 509, 513 (Ind.

Ct. App. 1989). Here, although Mother objects now, she did not object to joint

legal custody with ultimate decision-making authority in one parent in the trial

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court; to the contrary, she requested that basic arrangement in the trial court,

with herself as the ultimate decision-maker. In fact, it was Father who

advocated for sole legal custody in the trial court. Nonetheless, after

thoroughly reviewing the record, we do not believe the arrangement the trial

court ordered is clearly erroneous.

[17] We disagree with Mother that the trial court placed a heavy emphasis on her

alcoholism. The trial court mentioned Mother’s illness, acknowledged her four

years of sobriety, admonished Father for his failure to do the same, and refused

to indulge Father’s request to subject the children to unwarranted medical

testing. The trial court’s findings in this respect actually acknowledge Mother’s

progress and current ability to appropriately and safely parent the children. We

further disagree with Mother that the trial court did not appropriately consider

both parties’ fitness and suitability as parents. The trial court acknowledged

both Mother’s and Father’s shortcomings in dealing with the children and also

noted testimony from a doctor who had conducted psychological testing on the

parties that he saw nothing to indicate either parent would be unable to

appropriately parent the children. Mother’s arguments about Father’s

“misconduct,” see, e.g., Br. of Appellant at 21, are essentially requests that we

reweigh the evidence and find the balance in her favor. This we cannot do. See

Lindquist v. Lindquist, 999 N.E.2d 907, 911 (Ind. Ct. App. 2013). Although the

trial court did not make specific findings about the relationship between each

parent and the children, the proximity within which the parties live, or the

nature of the home environment each parent provides, it is clear from the

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testimony that these factors are easily satisfied in favor of joint custody. The

sticking point is the parties’ willingness and ability to communicate and

cooperate in parenting their children.

[18] Mother and Father provisionally agreed to joint legal and physical custody and

that was the arrangement they operated under for over two years. Certainly

there is ample evidence in the record that the parties had disagreements and

arguments between themselves and that they were unnecessarily entrenched

and petty about parenting time, trying to ensure that neither of them received

even a minute more parenting time than the other and refusing to accommodate

each other in changing schedules or facilitating activities on each other’s time.

The children’s counselor did not recommend joint custody. This evidence does

cast some doubt on the parties’ ability to effectively make joint decisions

regarding the children’s day-to-day activities. And yet, there is no evidence that

the parties have fundamental differences in their philosophies of child rearing

and education, their religious beliefs, or their lifestyles. See Walker, 539 N.E.2d

at 513 (holding evidence supported trial court’s determination that joint custody

was in child’s best interest over mother’s objection because there was no

evidence that “child rearing [had become] a battleground”). To award full joint

legal custody would be to impose an untenable situation on the parties and

more importantly, on the children. But to award sole legal custody to one

parent in this situation would be to reward one parent and punish the other

when neither has demonstrated a greater inclination for cooperation and

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compromise. As the Walker court noted with approval, a joint custody

arrangement

does not translate into a requirement that the parents have an
amicable relationship. Although such a positive relationship is
preferable, a successful joint custody arrangement requires only
that the parents be able to isolate their personal conflicts from
their roles as parents and that the children be spared whatever
resentments and rancor the parents may harbor. Moreover, the
potential for cooperation should not be assessed in the
“emotional heat” of the divorce.

If the parents outside of the divorce setting, have each
demonstrated that they are reasonable and are willing to give
priority to the best interest of their child, then the judge need only
determine if the parents can separate and put aside any conflicts
between them to cooperate for the benefit of their child. The
judge must look for the parents’ ability to cooperate and if the
potential exists, encourage its activation by instructing the
parents on what is expected of them.

Id. at 512 (quoting Beck v. Beck, 432 A.2d 63, 71-72 (N.J. 1981)).

[19] The trial court found a joint custody arrangement was in the children’s best

interest and encouraged Mother and Father to be reasonable in their joint

decision-making efforts. As the trial court awarded joint physical custody with

a true 50/50 split of parenting time—a finding Mother does not appeal—an

award of joint legal custody makes a certain amount of logistical sense. But

acknowledging the parties have at times acted less than admirably in dealing

with each other with respect to the children, the trial court also included a

failsafe so decisions do not get held up indefinitely. We cannot know whether

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this arrangement will ultimately work, and we add our own admonition to the

trial court’s: it will only work if both parties try to make it work. The parties

have been given a valuable chance to be equally involved in their children’s

lives and must each act reasonably in making decisions in the children’s best

interest. Father should not interpret his “ultimate decision-making authority”

as a license to ignore Mother’s input. Nonetheless, the trial court, which

interacted with the parties firsthand over several months, believed joint legal

custody was the best arrangement for this family. See Best v. Best, 941 N.E.2d

499, 502 (Ind. 2011) (because trial court judges have direct interactions with the

parties over an extended period of time, they “are in a superior position to

ascertain information and apply common sense, particularly in the

determination of the best interests of the involved children”). The evidence

supports the trial court’s decision that an award of a joint custody in the interest

of promoting collaboration between Mother and Father is in the children’s best

interest. We find no abuse of discretion in the trial court’s decision.

III. Parenting Time
[20] The trial court made the following finding regarding the opportunity for

additional parenting time:

Going forward, the opportunity for additional parenting time
shall only apply to times when either party requires care for the
children [by] other than a family or household member for a period of
time that includes an overnight. This modification will alleviate
Mother’s perceived need to investigate whether or not she is
being offered the time she believes she is entitled to receive. Ms.

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Ortega is deemed to be a household member for purposes of this
IPTG provision. See Ind. Parenting Time G., Sec. I. (C)(3).

Appealed Order at 6, ¶ 36 (emphasis added). The relevant Parenting Time

Guideline states:

When it becomes necessary that a child be cared for by a person
other than a parent or a responsible household family member, the
parent needing child care shall first offer the other parent the
opportunity for additional parenting time, if providing the child
care by the other parent is practical considering the time available
and the distance between residences.

Ind. Parenting Time Guideline I(C)(3) (emphasis added). The commentary to

this guideline provides: “[t]he household family member is defined as an adult

person residing in the household, who is related to the child by blood, marriage or

adoption.” (Emphasis added.) Providing opportunities for additional parenting

time “promotes the concept that a child receives greater benefit from being with

a parent rather than a child care provider who is not a household family

member.” Id. “It is presumed that this rule applies in all cases which the

guidelines cover; however, the parties or a trial court may, within discretion,

determine that a deviation is necessary or appropriate. Any such deviation

must be accompanied by a written explanation.” Id.

[21] Mother argues the trial court erred in two respects: one, in stating the

opportunity for additional parenting time will only arise if a “family or

household member” is unavailable to care for the children; and two, in

modifying the length of time which invokes the opportunity.

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[22] As to Mother’s first contention, we agree the trial court erred in concluding

Mother would not need to be offered the opportunity for additional parenting

time if Ortega were available to care for the children. First, the trial court did

not apply the plain language of the guideline. The guideline states the

opportunity for additional parenting time arises when the child must be cared

for by someone other than a parent or a responsible household family member. The

trial court’s finding states the opportunity for additional parenting time will

only be offered to Mother when the children require care by someone other

than a “family or household member.” Appealed Order at 6, ¶ 36. The

language used by the trial court does not appear in the guideline and clearly

alters the guideline’s intended meaning. Second, the trial court used that

misquoted language to find that Ortega – Father’s live-in, full-time housekeeper

and nanny – is a “household member” and therefore a suitable caregiver for this

purpose. The commentary to the guideline makes clear that the “responsible

household family member” must both live in the household and be related to

the children. By misquoting the guideline to create two separate categories of

“family member” and “household member,” and then using that misquoted

language to declare Ortega to be a qualified person for this purpose, the trial

court effectively denied Mother the opportunity to ever be offered additional

parenting time. As this court has previously stated, “Relegating [the non-

custodial parent’s] interest in additional parenting time to third-in-line abrogates

the goal of the Indiana Parenting Time Guidelines—promoting the best

interests of the child through frequent, meaningful, and continuing contact

between children and their parents.” Shelton v. Shelton, 835 N.E.2d 513, 518
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(Ind. Ct. App. 2005), summarily aff’d by 840 N.E.2d 835 (Ind. 2006). Ortega is

not a “household family member” and therefore, when Father is not available to

care for the children, regardless of whether Ortega is available, Mother should

be offered the opportunity for additional parenting time with the children.

[23] Mother also argues the trial court deviated from the guidelines in modifying the

length of time which would invoke the opportunity for additional parenting

time without providing a written explanation for the deviation. In this case, the

parties had initially agreed that two hours would be the threshold. While this

case was pending, the trial court modified the threshold to three hours. In the

final decree, the trial court changed the time period to overnights. The

guidelines do not specify an amount of time that invokes section I(C)(3); on the

contrary, the commentary to the guideline states “[t]he period of absence which

triggers the exchange will vary depending upon the circumstances of the

parties.” Because there is no time limit in the rule, the trial court’s decision is

not a deviation from the rules and therefore does not require a written

explanation. Moreover, the preamble to the Parenting Time Guidelines states

that “[d]eviations from these Guidelines by either the parties or the court that

result in parenting time less than the minimum time set forth below must be

accompanied by a written explanation . . . .” Parenting Time G. Preamble

(C)(3). Because the issue is Mother’s opportunity to exercise additional

parenting time, the trial court’s decision does not result in her having less than

the minimum time allowed by the Guidelines and does not necessarily require a

written explanation. Nonetheless, the trial court did explain why it was

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limiting the opportunity for additional parenting time to situations in which

childcare was needed overnight. We cannot say the trial court abused its

discretion in implementing an overnight threshold for the parties’ exercise of

additional parenting time.

IV. Father’s Weekly Gross Income
[24] Mother next contends the trial court erred in failing to include Father’s 2016

and future bonuses in its calculation of Father’s weekly gross income for child

support purposes. The trial court found that Father earns approximately

$450,000 per year, but because his effective tax rate is over the tax rate

presumed by the Indiana Child Support Guidelines, the trial court reduced his

weekly gross income from $8,635.85 to $7,848.27 for child support purposes.

Although Father testified his base pay for 2016 was $450,000, he also

acknowledged the possibility of bonuses and further acknowledged that in 2016,

his total compensation package was in excess of $2,000,000, which included an

additional $287,500 in cash bonuses and $1,320,000 in equity (stock) awards.

See Petitioner’s Exhibit 32. The trial court did not mention in its order nor did

it factor into its child support calculation any irregular income.

[25] Father contends Mother has waived this issue by failing to submit a copy of her

proposed child support worksheet to the trial court as required by the Child

Support Guidelines and local rule. See Ind. Child Support Guideline 3(B);

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Hamilton County Local Rule 402.10.2 In response, Mother has tendered to this

court the proposed findings of fact she filed with the trial court which included

a child support worksheet.3 Although this was filed at the conclusion of the

hearing rather than at the start, the trial court stated that filing both attorney fee

affidavits and child support worksheets at the conclusion of the hearing “might

be easier.” Tr., Vol. V at 83-84. We therefore decline to hold Mother has

waived consideration of this issue, as she did in fact file a child support

worksheet.

[26] Mother’s worksheet shows her proposed child support calculation was based on

a weekly gross income figure for Father of $8,653.84. Appellant’s Appendix,

Volume 2 at 30.4 This is basically the same figure the trial court used before

applying a tax rate credit to arrive at Father’s weekly gross income.5 However,

Mother’s proposed findings also include a paragraph that, had the trial court

adopted it, would require Father to convey a lump sum of ten percent of his

2016 irregular income (which Mother calculated to be $160,755 for 2016) to

2
The local rule requires a child support worksheet to be filed prior to any hearing or trial; the Child Support
Guidelines require a worksheet to be completed and filed “when the court is asked to order support.”
3
Mother did not file an appendix at the time she filed her Appellant’s Brief. Based on Father’s argument
about this issue in his brief, she has requested leave to file a belated appendix which includes both parties’
proposed findings of fact. Although we can envision very few circumstances in which an appendix
containing all relevant documents should not be filed with the original brief, we grant Mother’s motion with
an order issued contemporaneously with this opinion in order to fully adjudicate this issue.
4
The trial court imputed income to Mother in the amount of $530 per week. Mother’s worksheet included
this same amount of income and she does not challenge that amount on appeal.
5
In fact, $450,000 translates to weekly gross income of $8,653.84 rather than $8,635.84. It appears the trial
court transposed two numbers in arriving at a figure of $8,635.84. However, the difference in the child
support amount with the correct number is negligible.

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Mother and to do the same in all subsequent years. The evidence of Father’s

irregular income was minimal, at best. Yet, the trial court made no finding

regarding Father’s potentially substantial irregular income, not even to state

why it was declining to include any bonus income. See Commentary to

Guideline 3A(2)(b) (“When the court determines that it is not appropriate to

include irregular income in the determination of the child support obligation,

the court should express its reasons.”). It is clear Father received in 2016 a cash

“M[anagement] I[ncentive] P[lan] Award” of $287,500 for his work in 2015.

Because Father returned to work for his company in 2015, it is not clear

whether this bonus is representative of the bonus he might receive in years to

come. Moreover, Father’s “2016 Total Equity Award” of $1,320,000 in stock

options does not have a fixed value until and unless those options are vested

and Father chooses to sell them. Therefore, we cannot agree with Mother’s

argument on appeal that the trial court erred by failing to include any amount

of the bonus income in Father’s weekly gross income figure. See Commentary

to Guideline 3A(2)(b) (noting it may not be equitable to include irregular

income “by the process of determining the average of the irregular income by

past history and including it in the obligor’s gross income calculation”).

[27] Nonetheless, the Guidelines specify that courts should include bonus income in

calculating child support. Salser v. Salser, 75 N.E.3d 553, 563 (Ind. Ct. App.

2017). They also note that irregular income is “very fact sensitive” and that

judges should be “innovative in finding ways to include income that would

have benefited the family had it remained intact . . . .” Commentary to

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Guideline 3A(2)(b). One such equitable way to treat irregular income “may be

to require the obligor to pay a fixed percentage of [irregular income] in child

support on a periodic but predetermined basis . . . .” Id. That is the method

Mother advocated. Although we disagree with Mother that the equity award

should be included at the time it is granted—as noted above, it is not apparent

from the record that the equity award is vested or that it has a present fixed

value—the cash bonus would certainly have immediately benefited the family

had it remained intact, and some part of that irregular income should be

included in Father’s child support obligation. Because the trial court failed to

include any consideration of Father’s irregular income in the child support

calculation, we conclude the trial court clearly erred. On remand, we order the

trial court to fashion a child support award that takes into consideration

Father’s irregular income and to set the amount and method of payment in

accordance with the Guidelines.

V. Valuation of Marital Assets
[28] Mother contends the trial court erred in its valuation of certain marital assets.

Specifically, Mother alleges: 1) the trial court erred in finding that James

Lintzenich’s payment of $400,000 in 2014-15 was not a repayment of money

the parties loaned to him in 2008; 2) the trial court erred in finding that Father’s

company Core Principle had no value; and 3) the trial court erred in valuing the

parties’ real property in Tennessee at $1,500,000.

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A. Standard of Review
[29] The trial court has broad discretion to value the marital assets and we review

the trial court’s valuation for an abuse of that discretion. Pitcavage v. Pitcavage,

11 N.E.3d 547, 563 (Ind. Ct. App. 2014). A trial court does not abuse its

discretion if its decision is supported by sufficient evidence or reasonable

inferences from the evidence. Trabucco v. Trabucco, 944 N.E.2d 544, 558 (Ind.

Ct. App. 2011), trans. denied. If the trial court’s valuation is within the scope of

the evidence, the result is not an abuse of discretion. Webb v. Schleutker, 891

N.E.2d 1144, 1151 (Ind. Ct. App. 2008).

B. Lintzenich Loan and Value of Core Principle
[30] Because these two issues are entwined, we address them together. With respect

to the transactions between the Whorleys and Lintzenich and the value of Core

Principle, the trial court found:

89. During the time frame following the date of the Petition for
Divorce until the Parties physically separated, the Parties lived
off the joint Fidelity account . . . by paying for the marital
expenses directly from it.

90. The Parties each received a pre-distribution of $1,000,000
from the Fidelity account . . ., pursuant to the Provisional
Agreement approved by the Court on February 5, 2015.

***

94. The [Fidelity] account had an associated line of credit which
was approved of jointly by the parties.

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***

96. Although Mother has requested the court consider reducing
the line of credit by the $300,000 which was used to help fund
Core Principle, the court declines to do so. The parties jointly
agreed to the line of credit and the payment in question was
made prior to the date of filing.

***

98. Father had started a business, Core Principle, prior to the
date of filing. Core Principle created software to help track the
attendance of college students.

99. At the time the dissolution proceeding was filed, Father was
employed by Core Principle. He maintained that employment
until he left in June 2015 to take the job with [his original
employer].

100. After the dissolution proceeding was filed, Father attempted
to get Mother to agree to the sale of the business or to take steps
to obtain additional investments in the business. Mother refused
to consent to either occurring.

101. Father was forced to take a loan from James C. Lintzenich
to attempt to keep Core Principle viable.

102. Core Principle relinquished its office space in December
2015 and is no longer in operation.

103. Core Principle is indebted in the amount of $400,000 to
James C. Lintzenich . . . . Father shall be solely responsible for
the repayment of this debt. Father shall receive Core Principle

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and shall have the ability to dispose of the assets of the same as
he sees fit.

***

118. The parties had made an investment of $400,000 into Oak
Tree Consulting in August 2008.

119. The investment was due to be repaid by August 15, 2012
. . . . However, as of the date of the final hearing, no repayment
had occurred.

120. Father anticipates that some repayment may occur in the
future but is unsure as to the amount or date of repayment.

121. The parties shall equally divide any repayment that occurs
from the Oak Tree Consulting investment.

Appealed Order at 14-18. The trial court ultimately valued Core Principle at

negative $400,000. Id. at 19.

[31] Essentially, Mother contends the trial court erred in not including an additional

$895,000 in the marital pot representing the cash injected into Core Principle in

its waning months. In May 2014, $300,000 from the parties’ margin credit line

on their Fidelity account was transferred to Core Principle. Mother said she

was unaware a draw had been made on the credit line for that purpose until

several weeks later. However, she also testified that she and Father had

discussed that very thing and both signed the paperwork that opened up the

capacity to make such a draw. She argues that although she was aware of and

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agreed to opening the credit line, she did not know Father was actually going to

withdraw money. The trial court clearly did not give credit to Mother’s

testimony on this matter. Father testified an additional $195,000 came from his

portion of the pre-distribution from the Fidelity account, and therefore, his

monetary contributions to Core Principle had no effect on the marital estate.

To the extent Mother argues he should not have made those investments, there

is no harm to her. That leaves the $400,000 from Lintzenich.

[32] At first glance, that the parties loaned a company in which Lintzenich was the

primary partner $400,000 in 2008 and then Lintzenich loaned $400,000 to Core

Principle in 2014-15 does not seem like a coincidence. And perhaps it is not.

Mother’s “take” on that transaction was “that it’s at least a subtle or an indirect

payback of the [original] loan.” Tr., Vol. III at 12. She testified that “months

before [Lintzenich’s] payments came in, . . . [Father] talked to me a couple

times about how [Lintzenich] was thinking about investment . . . [but] I think

the simplest way to look at it for me is that it really was – even if he was

directed to make payments or it was involved in another agreement, that it

really was to pay back the $400,000.” Id. at 13. However, there is evidence in

the record to support the trial court’s findings to the contrary. Father denied

that Lintzenich’s loan to Core Principle was a repayment of the earlier loan,

testifying that “it is my statement that it has never been in any way connected to

any other investment or loan.” Tr., Vol. V at 159. A 2008 promissory note

between the Whorleys and Lintzenich’s company, Oak Tree, showing Oak Tree

is obligated to repay the loan from the Whorleys with interest was introduced

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into evidence, as was a 2014 convertible note between Lintzenich and Core

Principle showing Core Principle is obligated to repay Lintzenich in either cash

or shares. The documentary evidence supports the trial court’s findings that

these were two separate and unrelated transactions.

[33] Mother testified she believed Core Principle was worth $370,000 on the date the

dissolution was filed. Father testified he did not believe Core Principle had any

value at the time of the final hearing. During an earlier hearing, Father testified

extensively about Core Principle, noting the original plan was to bring in three

million dollars during the first two years, but “due to the uncertainty of the

outcome of this [dissolution] process,” Core Principle was unable to bring in

any money after the dissolution proceedings began besides Father’s additional

contributions and the Lintzenich note. Tr., Vol. II at 17. Even after the

infusion of cash, by October of 2015, only approximately $25,000 remained in

Core Principle’s bank account. For the fall semester of 2015, Core Principle

was providing its service as a free pilot project to seventeen universities. Father

testified the lack of capital had caused the company to go from five employees

to three and to move out of its rented office space, but he was trying to keep the

company afloat long enough to live up to those contracts. At the final hearing,

Father testified he had closed the company earlier in 2016. The trial court’s

decision that Core Principle did not have any positive value is within the scope

of the evidence – the trial court can value an asset as of any time between the

date of filing and the date of the final hearing. Pitcavage, 11 N.E.3d at 563.

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Even accepting Mother’s valuation at the outset of the divorce proceedings, the

company incurred debt in excess of that value in trying to remain viable.

[34] The trial court ordered that if Oak Tree ever repaid the 2008 loan, the

repayment was to be split between the parties. The trial court further ordered

Father to be solely responsible for repaying the loan from Lintzenich. In the

final analysis, the documentary evidence and testimony support the trial court’s

findings regarding these items.

C. Tennessee Property
[35] With respect to the property the parties owned in Tennessee, the trial court

found:

85. Father’s expert . . . testified that he believed the value of the
Tennessee real estate to be $1,035,170 . . . .

86. Mother’s expert . . . testified that he believed the value of the
Tennessee real estate to be $2,040,000 . . . .

87. The property was purchased by the Whorleys in 2004 for
$1,000,000.

88. The Court finds that the value of the Tennessee real estate is
$1,500,000 and shall be awarded to Father.

Appealed Order at 14.

[36] Mother contends the trial court’s valuation is not supported by the evidence

because no expert testified to that value. Yet, the trial court’s valuation—an

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average of the parties’ two appraisals—falls squarely within the scope of the

evidence. See Webb, 891 N.E.2d at 1151 (holding trial court’s determination

that value of farm equipment was an average between the two values offered by

the parties was within the scope of the evidence and not an abuse of discretion);

Cleary v. Cleary, 582 N.E.2d 851, 852-53 (Ind. Ct. App. 1991) (holding the trial

court’s method of averaging two values offered into evidence to determine the

value of an asset is not against the logic and effect of the facts before the court).

The trial court did not abuse its discretion in valuing the Tennessee property.

VI. Distribution of Marital Estate
[37] Finally, Mother contends the trial court erred in making an unequal distribution

of the marital estate because the trial court failed to consider each statutory

factor in dividing the marital estate and improperly weighed the factors it did

consider.

[38] The division of marital assets lies in the trial court’s discretion and we will

reverse only for an abuse of that discretion. Fischer v. Fischer, 68 N.E.3d 603,

608 (Ind. Ct. App. 2017), trans. denied. Although the facts and reasonable

inferences might allow for a different conclusion, we will not substitute our

judgment for the trial court’s. Hendricks v. Hendricks, 784 N.E.2d 1024, 1027

(Ind. Ct. App. 2003). Indiana Code section 31-15-7-4(b) requires the trial court

to divide the marital property in a just and reasonable manner. Section 31-15-7-

5 states the court “shall presume that an equal division of the marital property

between the parties is just and reasonable.” This presumption can be rebutted

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by a party who presents evidence of the following factors showing that an equal

division would not be just and reasonable:

(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 . . . .

(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.

Ind. Code § 31-15-7-5. In dividing the marital property, the trial court must

consider all the statutory factors, but is not required to explicitly address each

one in its order. Del Priore v. Del Priore, 65 N.E.3d 1065, 1078 (Ind. Ct. App.

2016), trans. denied. We presume the trial court considered all the factors, and

the trial court need only state its reasons for deviating from an equal division.

Shumaker v. Shumaker, 559 N.E.2d 315, 318 (Ind. Ct. App. 1990). Nonetheless,
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because the trial court may not rely on just one of the factors to support an

unequal division of property, Helm v. Helm, 873 N.E.2d 83, 90 (Ind. Ct. App.

2007), we must be able to infer from the trial court’s findings that it did indeed

consider all the factors in conjunction with each other, Montgomery v. Faust, 910

N.E.2d 234, 239 (Ind. Ct. App. 2009). As long as we are able to say the trial

court considered all the evidence bearing on the statutory factors, there is no

requirement that the trial court find a certain number of the factors weigh in

favor of an unequal division to support such a result.

[39] The trial court made the following findings regarding distribution of the marital

estate:

69. The extent to which each spouse has contributed to the
acquisition of the property, regardless of whether the contribution
was income producing, favors a balancing of the factors in favor
of Father.

70. Prior to the Parties’ marriage, Father’s net worth was
approximately $5,797,489 . . . . Mother did not provide
documentation of any assets that she brought into her marriage.

71. During the marriage, Father managed the Parties’
investments and increased the value of the marital estate during
that time.

***

75. Throughout the marriage and during the pendency of the
divorce, Father’s continued employment and business endeavors
helped sustain the marital estate.

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76. The extent to which the property was acquired by each
spouse prior to the marriage or through inheritance or gift favors
a balancing of the factors in favor of Father.

77. The conduct of the Parties during the marriage as related to
the disposition or dissipation of their property favors a balancing
of the factors in favor of Father.

78. Although Mother was a stay-at-home mother throughout the
Parties’ marriage, the Parties employed a nanny, Marisol Ortega,
for sometimes over 80 hours per week from 2005 through 2013,
to assist Mother in parenting the minor children . . . . [T]he
parties paid Marisol Ortega a total of $576,636.64 from 2005 to
2013.

79. The Parties also employed a night nanny after both children
were born and an additional part-time nanny . . . for which there
were expenses incurred.

80. The Parties paid approximately $8,750 for Mother’s
Treatment Program and Breathalyzer monitoring through Sober
Link . . . .

81. The Parties further paid for numerous counselors and
treatment at Fairbanks treatment center in an attempt to address
Mother’s alcoholism. The costs for the same were substantial.

82. Father has the burden of presenting relevant evidence to
rebut the presumption that an equal division of the marital
property between the Parties is just and reasonable.

83. Father has rebutted the presumption in favor of an equal
division of the marital estate by virtue of the evidence in support
of the contribution of each spouse to the acquisition of the

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property, regardless of whether the contribution was income
producing, the extent to which the property was acquired by each
spouse prior to the marriage or through inheritance or gift, and
the distribution and dissipation of the marital estate during the
marriage.

***

126. Father is entitled to 57.5% of the remainder of the marital
estate as an unequal, yet equitable distribution of the marital
estate.

Appealed Order at 12-13, 18. Mother contends the trial court abused its

discretion in dividing the marital property unequally because it did not clearly

consider the parties’ relative earning capacity and economic circumstances, did

not consider her contributions to the parties’ marital estate, and erroneously

considered the money paid to family help and to Mother’s recovery as

dissipation of assets. We agree with Mother on this point.

A. Contributions to Acquisition of Property
[40] The trial court made explicit findings as to this factor and found it weighed in

Father’s favor. See Appealed Order ¶¶ 69-75. The trial court focused on

Father’s substantial assets at the time of the marriage and his employment and

management of the parties’ assets during the marriage. The trial court noted

Mother did not provide any evidence of the assets she owned at the time of the

marriage. However, the trial court did not mention evidence that Mother

provided the down payment for the house the parties purchased in Las Vegas, a

house they later sold and presumably used the proceeds from to buy a new
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house in which the parties eventually settled together and welcomed their first

child. See Chestnut v. Chestnut, 499 N.E.2d 783, 786 (Ind. Ct. App. 1986)

(holding trial court properly considered wife’s contributions during the parties’

cohabitation before marriage). There was evidence Mother left a higher-paying

job in Indiana to join Father in Las Vegas at his request but continued to work

until the parties’ first child was born. Moreover, despite the fact the parties

hired help for their home and children, there is no evidence Mother abdicated

housekeeping and childrearing responsibilities for the ten years she was a stay-

at-home parent. Further, Mother’s presence in the home allowed Father the

time and support necessary for him to pursue his business and entrepreneurial

goals. We live in an age that honors the marital partnership by valuing the

contributions of spouses who do not work outside of the parties’ home as we do

the monetary contributions of wage earners. Both parties made substantial

contributions to the acquisition of property. Nonetheless, considering our

standard of review and Father’s monetary contributions to the parties’ marital

estate throughout the marriage, we cannot say the trial court’s finding that this

factor weighs in favor of an unequal division is clearly erroneous.

B. How and When Property Was Acquired
[41] The trial court also made a general finding about this factor and found it

weighed in Father’s favor, though there were no other specific findings

supporting this conclusion. See Appealed Order at ¶ 76. There is little evidence

of how Father amassed nearly six million dollars before the parties’ marriage,

but there was evidence that Mother made the down payment on their first Las

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Vegas house because Father did not “have those resources. He still had some

. . . I believe a good amount of debt . . . .” Tr., Vol. II at 130. It would appear

then that Father amassed the bulk of that money during the parties’

cohabitation. See Tr., Vol. V at 126 (Father testifying that his employer made

him a financial incentive offer if he stayed for four years and he earned “the first

lump sum of money” from that in 2000 or 2001). There is no evidence of

inheritance or gift, and Father concedes in his brief that this factor “is at most

neutral.” Appellee’s Brief at 38.

C. Present Economic Circumstances
[42] The trial court made no findings with respect to the economic circumstances of

the parties at the time the disposition was to become effective. The evidence

shows Father makes a guaranteed salary of nearly half a million dollars with the

potential for earning several times that salary through bonuses and stock

options each year. He lives in the marital home which is mortgage-free and

collects rent from a garage apartment tenant. The amount in his retirement

account is nearly three times the amount in Mother’s. Mother, who was a CPA

when the parties met, has been out of the workforce for at least ten years. Even

if she were to desire to return to work as a CPA, she would have to renew her

license and it would take time to return to the workforce in this capacity. She

currently works as substitute teacher at the children’s school, earning $13.71 an

hour, although it is unclear how many hours a week she works. For purposes

of child support, the trial court found Mother to be voluntarily underemployed,

and Mother does not dispute the income the trial court imputed to her. But

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even at that imputed salary, $530 per week, Mother would earn less than

$30,000 per year. And Mother was required to buy a house when she moved

out of the marital home. The parties’ incomes and resources are disparate, yet

each will have the children in his or her care an equal amount of time. Mother

is at a distinct disadvantage when it comes to her economic circumstances at

the time of the dissolution.

D. Conduct of the Parties with Respect to Property
[43] The trial court made several findings about this factor and again, found it

weighed in favor of Father. See Appealed Order at ¶¶ 77-81. The trial court

focused on the money the parties spent on household help and Mother’s

alcoholism-related treatment and essentially determined those expenditures

constituted dissipation of marital assets by Mother.

[44] “Waste and misuse are the hallmarks of dissipation. . . . It generally involves

the use or diminution of the marital estate for a purpose unrelated to the

marriage . . . .” In re Marriage of Coyle, 671 N.E.2d 938, 943 (Ind. Ct. App.

1996). Factors to be considered in determining whether dissipation has

occurred include whether the expenditure benefitted the marriage or was made

for a purpose entirely unrelated to the marriage, the timing of the transaction,

whether the expenditure was excessive or de minimus, and whether there was

intent to hid, deplete, or divert the marital asset. Goodman v. Goodman, 754

N.E.2d 595, 598 (Ind. Ct. App. 2001).

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[45] As for the parties’ household help, the trial court found the parties had spent

nearly $600,000 over eight years paying Ortega “to assist Mother in parenting

the minor children.” Appealed Order at 12. The trial court apparently found

this to be an unnecessary and excessive expense. First, the tenor of the trial

court’s finding—that it was Mother’s responsibility alone to parent the children

and that she was unable to do so—strikes us as inappropriate. It is the

responsibility of both parents to parent their children. In this regard, we note

that now that the parties have divorced, Mother cares for the children when

they are with her on her own and Father continues to employ Ortega and enjoy

the benefits of her assistance. Second, both parties acquiesced in and were able

to afford employing household help, and the expenditure was clearly made for

the benefit of the marriage. See, e.g., Tr., Vol. V at 205 (Father testifying, “[I]t

was clear to me from the start that we would do better as a couple and . . . as a

family if we had a lot of childcare support.”). There is no evidence supporting

the notion that the parties’ mutually agreed employment of full-time household

help was a waste or misuse of the marital assets.

[46] As for the money spent on Mother’s rehabilitation and treatment, again, there is

no evidence supporting the trial court’s finding that those funds were misused

or wasted for a purpose unrelated to the marriage. If Mother had, for instance,

diabetes, no one would say the money spent on treating that disease had been

wasted. There is no reason to do so with respect to the disease of alcoholism,

either. When Father found out about Mother’s alcoholism, he encouraged her

to get treatment for her own health, the safety and security of their children,

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and the health of their marriage. Father also encouraged Mother to enter the

Soberlink program even though Candace Backer, who oversees the program,

did not necessarily think the program would be beneficial to Mother because

she had already been sober for nearly a year. Backer testified the program is

intended for people who have difficulty maintaining their recovery and need a

higher level of accountability and she felt Mother was already past that stage of

recovery. Nonetheless, Backer agreed to accept Mother into the program at the

parties’ request. That Mother continued to use the Soberlink breathalyzer

device twice a day and incur those monitoring expenses is apparently due to

Father’s insecurity about a possible relapse despite 1,067 consecutive tests over

two and one-half years that showed no presence of alcohol.

[47] In short, although the evidence supports the factual findings of the trial court

about how much was spent and on what, all of these expenses were incurred

openly with the mutual agreement and knowledge of both parties and for

purposes related to the marriage. The trial court’s findings do not support the

trial court’s conclusions that Mother dissipated marital assets or that this factor

weighs in favor of an unequal distribution.

E. Earning Ability
[48] Although the trial court did make findings regarding the parties’ current income

in the context of their child support obligations, it made no findings with

respect to the parties’ relative earning abilities in considering the appropriate

division of the marital estate. There is nothing in the evidence to suggest Father

will not or could not continue to make a substantial salary in his chosen field,
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supplemented by his other business interests. Mother, on the other hand, will

likely have to undergo some additional education whether she intends to obtain

employment as a CPA or enter some other field. It is unlikely she will be able

to match her previous high salary for a considerable time, if ever. The earnings

and future earning ability of Father at the time of the dissolution are vastly

superior to Mother’s.

F. Summary
[49] We recognize that we will reverse a property division only if there is no rational

basis for the award. Helm, 873 N.E.2d at 89. Here, there is nothing in the trial

court’s order to suggest the trial court considered the parties’ present economic

circumstances or earning ability—factors which clearly weigh in Mother’s

favor—and it unfairly penalized Mother in considering the conduct of the

parties with respect to their property during the marriage. In addition, it does

not appear there was substantial property acquired by either party before their

relationship began. Based on the record before us, we conclude there is no

rational basis supporting the trial court’s determination that Father rebutted the

presumption that an equal division of the marital property is just and

reasonable. We therefore remand for the trial court to effectuate an equal

distribution of the property.

Conclusion
[50] The trial court did not clearly err in awarding the parties’ joint legal custody of

their children with Father as the ultimate decision-making authority, nor did
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the trial court err in ordering the opportunity for additional parenting time need

only be offered if a parent needed child care for a period including an overnight.

Those orders of the trial court are affirmed. However, the trial court did err in

interpreting Indiana Parenting Time Guideline I(C)(3). Although Ortega is a

“household member,” she is not a “household family member” and therefore

her availability does not affect the opportunity for additional parenting time.

This order of the trial court is reversed. The trial court also erred in failing to

include any of Father’s irregular income in the child support calculation. The

child support order is remanded for further consideration consistent with our

decision herein.

[51] Further, the trial court did not err in valuing the loan to be repaid by

Lintzenich, Father’s company Core Principle, or the parties’ Tennessee

property. The trial court’s valuation orders are affirmed. But the trial court’s

conclusion that Father has rebutted the presumption of an equal division of the

marital property is clearly erroneous, as it rests on improper considerations and

was made without taking into account all of the relevant factors. The trial

court’s property division is therefore reversed.

[52] We remand this case for the trial court to amend its order with respect to

parenting time and child support consistent with this opinion and to further

amend its order to effect an equal division of the marital property.

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

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Vaidik, C.J., and Bailey, J., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4215546. Public record. Not legal advice.