Javier Lara Baron, Appellant-Respondent v. Carolina Duarte Alvarez, Appellee-Petitioner (2026)

MEMORANDUM DECISION

[1] Divorced parents Javier Baron (Father) and Carolina Alvarez (Mother) had difficulty communicating and cooperating with each other while sharing joint legal custody of their three minor children. The trial court therefore modified its initial custody order to grant Mother sole legal custody of the children. Father appeals this modification, arguing it was not supported by evidence of a substantial change in the statutory factors that are considered in determining the children's best interests. We agree. Because the record does not show that Father and Mother's interpersonal issues negatively affected the children, we reverse the trial court's legal custody modification.

[2] The trial court also modified Father's weekly child support obligation to account for an increase in his regular income and the addition of irregular income. Father appeals the child support modification on various grounds, some of which succeed. We ultimately affirm in part and reverse in part the court's child support modification and remand for further proceedings.

Facts

[3] Father and Mother divorced in June 2023 with three children: G.L. (born October 2014), E.L. (born February 2018), and T.L. (born March 2021) (collectively, Children). The trial court's dissolution decree granted Father and Mother joint legal custody of Children and 50/50 parenting time on a week-on, week-off basis. The decree also ordered Father to pay $252 per week in child support.

[4] Father and Mother operated under the dissolution decree with clear disdain for each other for just over a year. Then, in July 2024, Mother petitioned for sole legal custody of Children, alleging she and Father were “unable to work together to make joint decisions for [Children's] mutual benefit.” App. Vol. II, p. 78. Mother also petitioned to modify Father's parenting time and child support obligation.

[5] At a hearing on Mother's petition, Mother testified that Father strictly allowed her only one 15-minute telephone call with Children during his parenting time week. Mother believed more communication with Children was reasonable, but when she tried to discuss it with Father, he did not respond to her emails, text messages, or telephone calls. Mother further testified that, twice during Father's parenting time, Father failed to promptly inform her when E.L. was injured and taken to a hospital emergency room.

[6] One hospital visit occurred after E.L. broke his arm at a local recreation center. Father did not notify Mother about the incident until the next day, when he returned Children to Mother for her parenting time week. The other hospital visit occurred after E.L. fell on a sidewalk and split his head open. Father did not notify Mother about this incident until he returned Children to Mother four days later. And even then, Father's communication with Mother was driven only by the need for Mother to continue caring for E.L.’s head injury, which had been closed with three staples.

[7] Father testified at the hearing that Children's psychologist ¹ had approved of him limiting Mother's telephone calls with Children during his parenting time. He also explained his view that sharing joint legal custody of Children did not require him to communicate with Mother at all while Children were in his care. Thus, Father believed he had timely notified Mother of E.L.’s injuries and that Mother was being unreasonable. Father also accused Mother of not following their divorce decree in various ways. Most notably, as Mother acknowledged, she sometimes permitted their 10-year-old child, G.L., to skip his parenting time with Father if G.L. did not feel like going.

[8] At the time of the hearing, Father had worked full-time as a mechanical engineer at Cummins, Inc. for 16 years. His annual salary at Cummins was $107,660.10, and he was paid $4,521.42 each pay period. He had also begun working part-time as a server at IHOP, but his hourly income from this job varied. Mother had an engineering degree but had not worked an engineering job since G.L. was born in 2014. For the last 11/212 years, she had worked as a communication coordinator at a local church, earning $641.90 per week.

[9] Mother offered into evidence her and Father's earning statements along with a “Proposal” that included the following child support provision at ¶ 10:

Father shall pay any irregular income, overtime, or amounts earned over his base salary ($107,660.10) with Cummins at a recapture rate of 22.4% of the Gross amount Father receives. Such irregular income, overtime and amounts earned over Father's base salary shall include, but not be limited to, bonuses, profit sharing and the irregular income from IHOP position that Father holds but works varied hours at. Father shall produce paystubs to Mother and pay the child support recapture amount within 5 days of receiving any and all irregular income, overtime, or amounts earned over his base salary of $107,660.10 or $2,260.71 per week with Cummins.

Exhs. pp. 23-24.

[10] After the hearing, the trial court issued a written order in which it declined to modify Father's parenting time but modified Father and Mother's joint legal custody of Children to grant Mother sole legal custody. The court also modified Father's child support obligation from $252 to $351 per week, attaching and incorporating by reference a completed Child Support Obligation Worksheet. The court further incorporated by reference ¶ 10 of Mother's Proposal, thereby ordering Father to pay 22.4% of his irregular IHOP income as additional child support. The court's written order further provided:

• “The parties shall limit their communication to civil, positive, child centered communication. Absent an emergency, the parties shall communicate through the Our Family Wizard co-parenting app.” Exhs. p. 24, ¶ 11 (incorporated by reference at App. Vol. II, p. 132).

• “In the event of an emergency, the parent who has the child experiencing the emergency shall notify the other parent as soon as reasonably possible.” Id. ¶ 12 (incorporated by reference at App. Vol. II, p. 132).

• “The parties shall be entitled to regular, consistent and uninterrupted telephone communication with the minor children when they are in the custody of the other parent. Specifically, the parties shall be entitled to one twenty (20) minute conversation by phone or FaceTime between 7pm and 8pm on the days that they do not have custody of the children.” App. Vol. II, p. 132.

• “The Court wants to make it clear to Mother that the children do not get to decide whether or not they are going to Father's for his parenting time. She shall ensure that they go or she will be subject to contempt of Court proceedings, which could entail fines, assessment of attorney fees, jail time, or any combination thereof.” Id.

Discussion and Decision

[11] Father appeals the trial court's legal custody modification, arguing that it was not supported by evidence showing a substantial change in the statutory factors that were considered in determining Children's best interests. We agree and reverse on that issue. Father also appeals the trial court's child support modification, arguing that the court erred in various ways. As to these issues, we affirm in part, reverse in part, and remand for further proceedings.

I. Legal Custody Modification

[12] Father first challenges the trial court's modification of his and Mother's joint legal custody of Children. “We review custody modifications for abuse of discretion, with a preference for granting latitude and deference to our trial judges in family law matters.” Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010). “[W]e consider only the evidence most favorable to the judgment and any reasonable inferences therefrom.” Id. “[W]e may not reweigh the evidence or judge the credibility of the witnesses.” Id.

[13] “After [an] initial custody determination, there is a presumption in favor of maintaining the status quo because generally ‘permanence and stability are considered best for the welfare and happiness of the child.’ ” Sanford v. Wilburn, 185 N.E.3d 451, 455 (Ind. Ct. App. 2022) (quoting Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)). “The General Assembly has directed that a trial court may not modify child custody unless ‘there is a substantial change’ in the statutory best interests considerations.” Id. (quoting Ind. Code § 31-17-2-21(a)(2)). The parent seeking a custody modification “bears the burden of proving that the existing custody order should be altered.” Montgomery v. Montgomery, 59 N.E.3d 343, 350 (Ind. Ct. App. 2016).

[14] Pertinent here is the factor provided by Indiana Code § 31-17-2-15(2): “whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare” (Communication Factor). In modifying Father and Mother's joint legal custody of Children, the trial court did not specifically find a substantial change in any statutory factor. But in its written order, the court made the following findings and observations relevant to the Communication Factor:

4. The parents in this matter do not communicate well at all. The parties currently have joint legal and joint physical custody.

5. Both parents are good parents, but their inability to be reasonable with each other and their clear disdain for each other concerns this Court greatly. For example, Father, often times will simply refuse to respond to Mother. He will not allow (or greatly restrict) communication between the Mother and children during his parenting time. On one occasion, one of the children was taken to the emergency room and required staples in their head. Father did not see this as something that should have been immediately communicated to Mother. Mother presents her share of communication issues as well, however. For example, she believes that a 10 year old (sic) child can decide whether or not he goes to spend time with Father. She also talks about court proceedings with the children. Both parties’ unreasonable behavior was apparent to this Court during their testimony. This Court can only imagine the stress that their pettiness places on the children. During testimony, as is not uncommon in disputed family law cases, the parties refer to their parenting time as “my time.” This attempt to block out the other parent completely during “their time” is not a wise co-parenting model in this Court's experience. While each parent gets 50% parenting time, they are both the children's parents 100% of the time.

6. This Court does not believe that joint legal custody is in the best interests of the children, and while both parents present their own set of concerns for this Court, Mother appears to be the most reasonable of the two; as such, Mother shall have sole legal custody of the children.

7. Regarding physical custody, this Court sees no substantial reason to change the current plan of physical custody, as such the parties shall continue to have joint physical custody.

App. Vol. II, pp. 131-32.

[15] Father does not dispute that he and Mother did not communicate or cooperate well during the year after their divorce. Rather, he claims there is no evidence that these issues constituted a substantial change in the Communication Factor. We agree for two reasons.

[16] First, the record is silent as to whether Parents were “willing and able to communicate and cooperate in advancing [Children's] welfare” when the trial court initially awarded them joint legal custody. Ind. Code § 31-17-2-15(2). As there is no evidence of a baseline, Mother failed in her burden of proving that any change in the Communication Factor occurred. See Montgomery, 59 N.E.3d at 351 (reversing modification of legal custody, in part, because parents’ “highly-acrimonious relationship ․ [was] not a new or recent development or a changed circumstance.”).

[17] Second, and more importantly, the record does not show that any change in the Communication Factor was “substantial.” Ind. Code § 31-17-2-21(a)(2). When considering a custody modification, “[t]he alleged change in circumstances is evaluated in the context of the child's environment, and the effect of the change on the child is what makes it either substantial or inconsequential.” Sanford, 185 N.E.3d at 455 (citing In re Marriage of Sutton, 16 N.E.3d 481, 485 (Ind. Ct. App. 2014)). “[A] change that might be regarded as slight or inconsequential in one case might be catastrophic in another.” Id. (quoting Poret v. Martin, 434 N.E.2d 885, 888 (Ind. 1982)).

[18] Here, the record is silent as to whether Children were affected by Father's and Mother's communication and cooperation issues. Indeed, the trial court “c[ould] only imagine the stress that [the parents’] pettiness place[d] on [Children],” indicating Mother presented no evidence thereof. App. Vol. II, p. 131. Though Father's delay in informing Mother of E.L.’s injuries and hospital visits is concerning, Mother does not allege—nor does the evidence show—that E.L. received inadequate or unapproved medical care as a result of the delay. The trial court also addressed this concern by specifically ordering Father to notify Mother “as soon as reasonably possible” when any of Children have an emergency while in his care. Exhs. p. 24, ¶ 12 (incorporated by reference at App. Vol. II, p. 132). Additionally, the court addressed the specific issues of Father limiting Mother's telephone calls with Children during his parenting time and of Mother allowing G.L. to skip his parenting time with Father.

[19] Because the evidence does not show that Father's and Mother's communication and cooperation issues were a substantial change in the Communication Factor, we reverse the trial court's legal custody modification.

II. Child Support Modification

[20] Father next challenges trial court's modification of his child support obligation. “We will reverse a court's decision in child support matters only if it is clearly erroneous or contrary to law.” Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008). “A decision is clearly erroneous if it is clearly against the logic and effect of the facts and circumstances that were before the trial court.” Id. On review, “we neither reweigh the evidence nor judge the credibility of the witnesses.” Willard v. Peak, 834 N.E.2d 220, 223 (Ind. Ct. App. 2005). According to Father, the trial court clearly erred in determining: (A) his and Mother's weekly gross incomes; (B) his and Mother's weekly child care expenses; and (C) his irregular income rate.

A. Weekly Gross Incomes

[21] Father first argues that the trial court erred in determining his and Mother's weekly gross incomes. The Indiana Child Support Guidelines require a trial court to calculate each parent's weekly gross income to determine the amount of child support owed. Ind. Child Support Guideline 3A.

1. Father's Income

[22] The trial court found Father's weekly gross income to be $2,260.70. Father claims this finding was clearly erroneous because his earning statements from Cummins indisputably showed his annual salary to be $107,660.10, which equates to 52 weekly payments of $2,070.39.

[23] Father's earning statements indeed show his salary to be $107,660.10, but they also show that he is paid $4,521.42 each pay period. Mother characterizes the latter figure as Father's “biweekly base pay” and claims the trial court correctly calculated his weekly gross income as half that—$2,260.71. Appellee's Br., p. 21. But 52 weekly payments of $2,260.71 equates to an annual salary of $117,556.92, not $107,660.10. And our review of Father's earning statements suggests that he is paid semi-monthly, not bi-weekly as Mother claims. Compare Exhs. p. 5 (identifying statement by “Pay Period: 24/2024,” “Period Begin: 12/16/2024,” and “Period End: 12/31/24”), with Exhs. p. 6 (identifying statement by “Pay Period: 01/2025,” “Period Begin: 01/01/2025,” and “Period End: 01/15/25”).²

[24] In the end, we agree with Father that the trial court erred in determining his weekly gross income to be $2,260.70. We therefore reverse the trial court's child support modification in that regard and remand for a redetermination of Father's weekly gross income, followed by a recalculation of Father's child support obligation.

2. Mother's Income

[25] The trial court found Mother's weekly gross income to be $641.90. Father claims this finding is clearly erroneous and that the court should have imputed additional income to Mother due to her voluntary underemployment. “If a court finds a parent is voluntarily unemployed or underemployed without just cause, child support shall be calculated based on a determination of potential income.” Child Supp. G. 3(A)(3).

[26] Father contends Mother was voluntarily underemployed because she worked as a communication coordinator at a local church despite being trained as an engineer. Father's contention, however, is waived for two reasons. First, he never requested the trial court to impute additional income to Mother due to her alleged underemployment. In re Paternity of C.B., 112 N.E.3d 746, 760 (Ind. Ct. App. 2018) (finding father waived child support issue by failing to raise it in the trial court). Second, he does not argue that Mother lacked “just cause” for her alleged underemployment, as is required for the trial court to impute income under Child Support Guideline (A)(3). K.S. v. D.S., 64 N.E.3d 1209, 1212 (Ind. Ct. App. 2016) (“A party waives any issue for which it fails to develop a cogent argument or support with adequate citation to authority.”).

[27] We therefore affirm the trial court's child support modification as to the determination of Mother's weekly gross income.

B. Child Care Expenses

[28] Father next argues that the trial court erred in calculating his and Mother's weekly child care expenses. “Child care costs incurred due to employment or job search of both parent(s) should be added to the basic obligation.” Child Supp. G. 3E(1). Here, the trial court determined that Father's weekly child care expenses were $0 while Mother's were $48. Father argues that these figures are clearly erroneous based on his testimony that he would soon have to pay $8 per hour to send their youngest child, T.L., to daycare because Mother's daycare scholarship was ending. Mother, however, testified that her daycare scholarship was not ending. Thus, Father's claim is a request to reweigh the evidence, which we will not do. Willard, 834 N.E.2d at 223.

[29] We therefore affirm the trial court's child support modification as to the determination of Father's and Mother's weekly child care expenses.

C. Irregular Income Rate

[30] Finally, Father argues that the trial court erred by ordering him to pay 22.4% of his irregular income as child support. This percentage reflects the ratio of Father and Mother's basic child support obligation ($649.00) to their combined weekly adjusted income ($2,902.61). See generally Child Supp. G. 3(A) (comment 2b) (recommending ratio method as means for determining child support owed on irregular income).

[31] Father claims the ratio method was inappropriate because “[it] will result in an overpayment of support” in certain circumstances. Appellant's Br., p. 19. But the Guidelines expressly acknowledge and account for this possibility, stating:

The use of this ratio will not result in an exact calculation of support paid on a weekly basis. It will result in an overstatement of the additional support due, and particularly so when average irregular income exceeds $250.00 per week or exceeds 75% of the regular adjusted Weekly Gross Income. In these latter cases the obligor may seek to have the irregular income calculation redetermined by the court.

Child Supp. G. 3A (comment 2b).

[32] Because Father may seek a recalculation of his child support obligation if an overpayment comes to fruition, we find no error in the trial court's use of the ratio method. But, as Father correctly asserts, the trial court calculated his irregular income rate at 22.4% using the clearly erroneous figure of $2,260.71 as his weekly adjusted income. Supra ¶ 25. We therefore reverse the trial court's child support modification in that regard and remand for a recalculation of Father's irregular income rate after his weekly gross income is redetermined.

Conclusion

[33] We reverse the trial court's modification of Father and Mother's joint legal custody of Children. We also reverse the court's child support modification in two respects: (1) the determination of Father's weekly gross income; and (2) the calculation of Father's irregular income rate. We remand for a redetermination of Father's weekly gross income followed by recalculations of Father's child support obligation and irregular income rate. As to all other issues, we affirm.

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

FOOTNOTES

1.   The record does not reveal why Children were seeing a psychologist.

2.   We note, however, that an annual salary of $107,660.10 equates to 24 semi-monthly payments of $4,485.84, not $4,521.42; and 24 semi-monthly payments of $4,521.42 equates to an annual salary of $108,514.08, not $107,660.10. Thus, it is not clear that Father's weekly gross income is $2,070.39, as he contends.

Weissmann, Judge.

Bradford, J., and DeBoer, J., concur.