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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: DEBRA LYNCH DUBOVICH Levy & Dubovich Highland, Indiana

ATTORNEY FOR APPELLEE: P. JEFFREY SCHLESINGER Merrillville, Indiana

IN THE COURT OF APPEALS OF INDIANA
DAVID LAURIDSEN, Appellant, vs. JEANETTE LAURIDSEN, Appellee. ) ) ) ) ) ) ) ) )

No. 45A04-0610-CV-603

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Elizabeth F. Tavitas, Judge Cause No. 45D03-0201-DR-459

March 6, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE David Lauridsen ("Father") appeals from the trial court's order modifying his child support payments to Jeanette Lauridsen ("Mother"). Father raises four issues for our review, namely: 1. Whether the trial court erred in not imputing income to Mother even though, in a prior modification order, the court had imputed income to her. Whether the court erred in determining Father's parenting time credit. Whether the court erroneously included a capital gain as part of Father's income. Whether the court's finding that Father is not entitled to a credit for the children's health insurance premiums paid through his S corporation is clearly erroneous.

2.

3.

4.

We affirm in part, reverse in part, and remand with instructions. FACTS AND PROCEDURAL HISTORY After more than eight years of marriage, Mother filed a petition for dissolution in the Lake Superior Court. On June 12, 2003, the trial court dissolved the marriage and incorporated into its order the parties' agreements regarding a property settlement and coparenting plan. Pursuant to the coparenting plan, the parties shared joint legal custody of their three minor children. The coparenting plan described the parties' respective parenting time as follows: a. The Mother shall have parenting time with the children beginning Tuesday after school until Saturday morning at 10:00 a.m. the first week after the entry of this decree. During the second week after the entry of this decree, the Mother shall have parenting time with the children from Sunday morning at
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b.

9:00 a.m. until Monday after school; from Tuesday after school until the children leave for school Wednesday morning; from Thursday after school until Saturday morning at 10:00 a.m. c. During the third week after the entry of this decree, the Mother shall have parenting time with the children from Tuesday after school until Saturday morning at 9:00 a.m. During the fourth week after the entry of this decree, the Mother will have parenting time with the children from Sunday morning at 9:00 a.m. until Monday after school; from Tuesday after school until the children go to school Wednesday morning; from Thursday after school until Saturday morning at 10:00 a.m. The above parenting time schedule shall continue throughout the whole year, except each party shall be entitled to one (1) full week of parenting time with the children during the summer, upon thirty (30) days written notice to the other party. The Father shall be with the children when it is not the Mother's scheduled parenting time. *** j. The parties shall follow the Indiana Parenting Time Guidelines with regard to holiday time.

d.

e.

f.

Appellant's App. at 106-07. With regard to child support, the coparenting plan required Father to pay Mother $143 per week. In February of 2004, Father filed a petition to modify child support on the basis of a change in his employment status. Specifically, the trial court noted that Father's selfowned business had closed on January 31, 2004, due to debt incurred by "bad business decisions." Id. at 94. The trial court subsequently modified Father's child support obligation to $16.94 per week, based on Father's expected annual income of approximately $25,000 ("the first modified order").

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On September 23, 2005, Mother filed a petition to modify child support based on Father's actual income for 2003 and 2004, which totaled, respectively, $41,264 and $42,829. The trial court granted a hearing on Mother's petition. In addition to the admission of Father's 2003 and 2004 tax returns, Father testified that he expected to earn approximately $40,000 in 2005. Father earned his 2003-05 incomes from a new

construction business he had started. In contrast, Mother, a licensed beautician working part-time, had an income of $12,429 in 2004. On June 23, 2006, the trial court found that Father had 156 overnights of parenting-time credit, consistent with the first modified order. The court also found that Father was not to be given credit for health care expenses paid for by his new business, and it increased his child support obligation to $154.12 per week ("the second modified order") based on changed circumstances. This appeal ensued. DISCUSSION AND DECISION Our supreme court has addressed appellate court deference to trial court findings in family law matters, including findings of "changed circumstances" within the meaning of Indiana Code Section 31-16-8-1: Whether the standard of review is phrased as "abuse of discretion" or "clear error," this deference is a reflection, first and foremost, that the trial judge is in the best position to judge the facts, to get a feel for the family dynamics, to get a sense of the parents and their relationship to their children--the kind of qualities that appellate courts would be in a difficult position to assess. Secondly, appeals that change the results below are especially disruptive in the family law setting. And third, the particularly high degree of discretion afforded trial courts in the family law setting is likely also attributable in part to the "fluid" standards for deciding issues in family law cases that prevailed for many years.

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The third of these reasons has largely fallen by the wayside as the Legislature and [the Supreme] Court have promulgated a series of statutes, rules, and guidelines--standards that bring consistency and predictability to the many family law decisions. But, the importance of first-person observation and avoiding disruption remain compelling reasons for deference. We recognize of course that trial courts must exercise judgment, particularly as to credibility of witnesses, and we defer to that judgment because the trial court views the evidence firsthand and we review a cold documentary record. Thus, to the extent credibility or inferences are to be drawn, we give the trial court's conclusions substantial weight. But to the extent a ruling is based on an error of law or is not supported by the evidence, it is reversible, and the trial court has no discretion to reach the wrong result. MacLafferty v. MacLafferty, 829 N.E.2d 938, 940-41 (Ind. 2005) (alteration in original). In the present case, the trial court made special findings in the second modified order. When the trial court has entered findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52, we apply the following two-tiered standard of review: whether the evidence supports the findings and whether the findings support the judgment. Staresnick v. Staresnick, 830 N.E.2d 127, 131 (Ind. Ct. App. 2005). The trial court's findings and conclusions will be set aside only if they are clearly erroneous, that is, if 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. We neither reweigh the evidence nor assess the credibility of witnesses, but consider only the evidence most favorable to the judgment. conclusions of law de novo. Id. Id. We review

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Issue One: Mother's Income Father first challenges the trial court's evaluation of Mother's income in the second modified order. Specifically, Father argues that the court erred by using a "change in methodology" in computing Mother's income and in not following the "law of the case" by imputing income to Mother in the second modified order, as it had in the first modified order. Appellant's Brief at 12; Reply at 7. In their briefs on appeal, both parties maintain that Mother's "employment status was consistent from the time of the dissolution through both modification hearings." Appellee's Brief at 6 n.1. In support of his position that the court erroneously changed its methodology, Father relies on Carmichael v. Siegal, 754 N.E.2d 619, 627 (Ind. Ct. App. 2001). In Carmichael, we held, "for the purpose of determining whether there was a substantial change in circumstances justifying the modification of a child support obligation, . . . it is improper for a trial court to use inconsistent formulas from one proceeding to the next in calculating an obligor's available income." Id. (emphasis added). However,

Carmichael is inapposite here. The trial court in Carmichael had ordered that the mother's IRAs were not to be included in the determination of her income, but it later ordered that the IRAs were to be included in her income. We reversed because the trial court had fundamentally changed its formula by adding a variable, the IRAs, that it had previously omitted. Here, however, the trial court did not change its mathematical formula but altered a figure in that formula. That is, while in the first modified order the court determined Mother's income by adding her actual income to an imputed figure, in the second modified order the court merely accepted Mother's actual income. In other
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words, in the second modified order, the court added actual income to an imputed income of zero. Hence, we are not persuaded by Father's position that the trial court changed its methodology. Father also maintains that the "law of the case was that Mother's income for child support purposes was to be imputed at considerably more than her actual take-home pay." Reply at 7. We question whether the law of the case doctrine applies where the statute at issue specifically requires a trial court to consider "changed circumstances" in modifying a prior order. See Ind. Code

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