Thomas H. Torson v. Vicky L. Torson (mem. dec.)
90A05-1602-DR-362
Ind. Ct. App.Dec 20, 2016Background
- Thomas and Vicky Torson divorced in 2010; they share joint legal and near-equal physical custody of three sons (one now adult). Numerous post-dissolution disputes and filings followed, including multiple mediated agreements.
- In June 2015 Thomas filed to modify the parenting-time schedule seeking primary physical custody; in July 2015 Vicky sought modification of child support and college-expense allocations.
- The trial court appointed a guardian ad litem, held hearings, and on January 25, 2016 entered findings modifying parenting time to an equal 7/7 overnight split and recalculated child support and college expense shares.
- The court treated certain UPS restricted stock units (RSUs) shown on Thomas’s W-2 as income when calculating child support.
- The court changed the parties’ share of post-secondary expenses so Thomas would pay 71% and Vicky 29% (reflecting their relative incomes in 2014).
- Thomas appealed, challenging inclusion of RSUs in income, the modification of college-expense shares, retroactive parenting-time credit and the parenting-time modification itself.
Issues
| Issue | Plaintiff's Argument (Thomas) | Defendant's Argument (Vicky) | Held |
|---|---|---|---|
| Whether UPS stock (RSUs) should be included in Thomas’s income for child-support calculation | RSUs are a retirement benefit (a pension substitute) and should be excluded from income | RSUs appear on Thomas’s W-2 as wages/compensation and therefore constitute income | Court upheld inclusion: factual evidence (W-2) supports treating RSUs as income; no clear error in trial court’s finding |
| Whether trial court properly modified allocation of post-secondary (college) expenses | No substantial, continuing change justified modifying previously agreed allocation | Parties’ incomes changed; Thomas’s income rose to ~71% of combined income, supporting revised allocation | Court affirmed modification: changed financial circumstances supported reallocation and court’s exercise of discretion |
| Whether trial court improperly credited Thomas for parenting-time during retroactive period (credit amount and retroactivity) | Trial court gave only 180 overnight-credit; Thomas contends actual overnights were greater and seeks recalculation/retroactivity | Vicky computed a small difference (~$68.85) and opposes further litigation over de minimis amount | Appellate court accepts Vicky’s calculation as effectively correct, finds difference de minimis, but directs trial court to credit Thomas $68.85 on remand (claims of erroneous retroactivity otherwise waived) |
| Whether trial court abused discretion by modifying parenting time (denying Thomas’s request for primary custody and shifting to equal 7/7 split) | Change to primary custody (or greater parenting time) is in children’s best interest; alternatively, substantial change supported custody modification | Trial court found no substantial change to support custody shift, noted children doing well academically and concerns Thomas would litigate further; equal 7/7 split better stability and balance | Court affirmed parenting-time modification: trial court’s findings supported decision; no clear error and appellate court will not reweigh evidence |
Key Cases Cited
- Martinez v. Deeter, 968 N.E.2d 799 (Ind. Ct. App.) (presumption of validity for trial court child-support calculations and abuse-of-discretion review)
- Young v. Young, 891 N.E.2d 1045 (Ind.) (child-support calculation standards)
- In re Marriage of Sutton, 16 N.E.3d 481 (Ind. Ct. App.) (clearly erroneous standard for findings)
- Steele-Giri v. Steele, 51 N.E.3d 119 (Ind.) (deference to family-court factual determinations)
- Mitchell v. Mitchell, 875 N.E.2d 320 (Ind. Ct. App.) (appellate courts must not reweigh evidence)
- Hirsch v. Oliver, 970 N.E.2d 651 (Ind.) (abuse-of-discretion review for orders allocating post-secondary educational expenses)
- Saalfrank v. Saalfrank, 899 N.E.2d 671 (Ind.) (factors for excluding retirement contributions from income—distinguished because parties there agreed funds were retirement)
- Apter v. Ross, 781 N.E.2d 744 (Ind. Ct. App.) (increased income can be a substantial changed circumstance justifying modification)