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Salser v. Salser

Court of Appeals of Indiana

April 26, 2017

Karen B. Salser, Appellant-Petitioner,
Gregg A. Salser, Appellee-Respondent.

         Appeal from the Allen Superior Court The Honorable Sherry A. Hartzler, Magistrate The Honorable Charles F. Pratt, Judge Trial Court Cause No. 02D08-1412-DR-1616

          Attorney for Appellant Perry D. Shilts Shilts & Setlak, LLC Fort Wayne, Indiana Attorneys for Appellee

          Douglas E. Johnston Angelica N. Fuelling Tourkow, Crell, Rosenblatt & Johnston, LLP Fort Wayne, Indiana

          Brown, Judge.

         [¶1] Karen B. Salser ("Mother") appeals from the amended decree of dissolution of marriage issued by the trial court regarding her marriage to Gregg A. Salser ("Father"). Mother raises four issues which we consolidate and restate as whether the court erred in entering its child support order and educational support order. We reverse and remand.

         Facts and Procedural History

         [¶2] Father and Mother married on January 2, 1993. In 2001, the parties adopted their son Derric, who was five years old at the time, and was nineteen years old and a freshman at Purdue University at the time of dissolution. A week before adopting Derric, Mother became pregnant and later gave birth to daughter E.S., who was thirteen years old at the time of the dissolution hearing.

         [¶3] On December 29, 2014, Mother filed a Petition for Dissolution of Marriage. At the time of the hearing, Mother was forty-eight years old and is a practicing nurse practitioner. Prior to Derric's adoption, she worked full-time, and after the adoption and the birth of E.S., she was a stay-at-home parent for the next four or five years. Once E.S. started preschool, she resumed working as a nurse practitioner on a part-time basis. For the past five years, except for one year when she home-schooled E.S. for fourth grade, Mother has worked part-time as a nurse practitioner at an integrative medical office owned by Dr. Gladd. Prior to that, she worked with Lutheran Cardiac, Dr. Sloan, and Parkview Memorial Hospital on a part-time basis. When she started at Dr. Gladd's office, she worked one-and-one-half to two days per week, but this has increased to two to three days per week and had been three days per week for the two years prior to trial. Mother earns $55 per hour at Dr. Gladd's office. Her annual income was $48, 292 in 2012, $49, 786 in 2013, and $39, 946 in 2014. In 2015, through November 29, 2015, she had earned $47, 066.75.

         [¶4] Father worked with a number of different companies as a pharmaceutical sales representative over the past twenty years. At the time of the dissolution hearing, Father worked for Depomed, where he had begun working in August 2015. His compensation includes a $95, 000 annual salary as well as a potential annual bonus of up to $27, 000 based on criteria identified in his employment contract.

         [¶5] Derric received an ROTC scholarship to attend Purdue University that paid for tuition, books, and miscellaneous expenses, leaving $10, 000 to $12, 000 in yearly expenses. The parties did not have savings earmarked to assist in paying these expenses. Derric obtained a $5, 500 loan for his freshman year, from 2015 to 2016. He also had savings in his name and savings bonds available to him to assist in paying his college expenses.

         [¶6] E.S. is involved in a number of after-school activities, including volleyball, choir, and swimming. After-school care is available for her in the event that both parents are working.

         [¶7] On September 22, 2015, the court held a hearing on a motion by Father to modify support as to the request for an educational support order for Derric, and the matter was taken under advisement.[1] The court held the final hearing on the dissolution petition on December 11, 14, and 22, 2015. At the hearing, Mother testified that her duties in Dr. Gladd's integrative medical practice are significantly different from the duties of a nurse practitioner in a traditional medical practice and that she enjoys her current practice and does not wish to leave. She also testified that there are no additional hours available at Dr. Gladd's office but that she would "absolutely" work additional hours "as the hours become available . . . ." Transcript 1 at 176. She also testified that she believed her being a stay-at-home mom for four years, subsequently working part-time, and home-schooling E.S. for a year was all by agreement with Father.

         [¶8] Father testified that during the marriage he "wanted [Mother] to work fulltime" and indicated that Mother "defied" him in that regard. Transcript 2 at 77. He testified that as of the date of trial, he had earned a single bonus at his current job amounting to $1, 300 and that such bonuses are based upon performance. Regarding Derric's college costs, Father requested that the court order Mother and him to equally contribute to those remaining expenses, and Mother testified that she was unable to contribute financially to those costs.

         [¶9] On March 18, 2016, the court issued its Decree of Dissolution of Marriage. On April 7, 2016, Mother filed a motion to correct error, and on April 25, 2016, the court conducted a hearing on the motion.[2] On May 24, 2016, the court issued its Amended Decree of Dissolution of Marriage (the "Amended Decree"). The court awarded joint legal custody of E.S. and ordered that the parties share parenting time equally, alternating weekly. It determined the total value of the marital estate to be $527, 019.85, awarded Mother net assets totaling $246, 265, awarded Father net assets totaling $280, 754.85, and ordered that Father pay Mother $17, 245 to equalize the division of assets. The Amended Decree contained findings consistent with the foregoing as well as the following:


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9. Historically, the parties jointly were involved in the raising of the children, but [Mother] was the primary caregiver inasmuch as for periods of time she either was a full-time stay-at-home mother, home-schooled [E.S.] for at least one school year and during the majority of the marriage worked only on a part-time basis. However, early in the marriage she worked full-time, and at times of [Father's] unemployment, [Mother] was able to work additional hours.
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37. Father is employed with Depomed at an annual salary of Ninety-Five Thousand Dollars ($95, 000.00), and is eligible for periodic bonuses.
38. His first bonus with this employer was in the sum of One Thousand Three Hundred Dollars ($1, 300.00) and will vary from time to time. Mother also receives bonuses from time to time.
39. Because the bonuses are uncertain and not predictable, the Court does not factor same into the base child support calculation.
40. Mother is a Nurse Practitioner, presently employed by Dr. Gladd, M.D. She presently works on a part-time basis and makes Fifty Five Dollars ($55.00) per hour. Mother holds an advanced degree (Master's degree) and licensure to be a Nurse Practitioner in the State of Indiana.
41. Mother has been a Nurse Practitioner for at least fifteen (15) years.
42. In the past, she has worked as a Nurse Practitioner for an endocrinologist, family practice, occupational medicine, and presently works in the area of integrative medicine.
43. Her licensure allows her to practice in any medical field, including a general family practice, occupational medicine, cardiac care unit, and even in a nursing home setting.
44. Mother testified that she values her role of mother and thus does not seek full-time employment.
45. No evidence was presented that she is incapable of full-time employment.
46. Although working on a part-time basis during the younger years of the children, with the eldest child, Derric now being out of the home and the younger child now being in middle school, Mother is capable of working on a full-time basis.
47. The court therefore finds that her income should be imputed at her current hourly rate for a forty (40) hour week, or Two Thousand Two Hundred Dollars ($2, 200.00) per week. Additionally, this Court previously found in the Court's ruling on the apportionment of college expenses for their child, Derric, that Mother holds an advanced degree, has the ability to work fulltime and earn substantially more income. Accordingly, the Court assigns potential income of Two Thousand Two Hundred Dollars ($2, 200.00).
48. At that income level, the parents are approximately equal wage earners.
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50. Based upon the relative incomes of the parties, the cost of health insurance premiums for the children, and the parenting time apportionment, the Court deviates from the recommended support guidelines as the recommended child support is nominal and the parenting plan will result in an equal sharing of controlled and transferred expenses of the child. Thus, the Court Orders that there shall be a Zero Dollar ($0) child support order entered commencing the first Friday after the entry of this Decree herein. In addition to regular support, the parties shall equally share in the cost of the child's private schooling cost. Any agreed-upon activities of the child shall also be borne equally.
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52. The parties' child, Derric, commenced his freshman year at Purdue University in August, 2015.
53. Pursuant to the Court's prior Order herein, both parties are capable of contributing to the cost of the child's education at Purdue University.
54. The Court finds that Mother has an advanced degree and is capable of making an income substantially more than in her ...

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