Richard Littke v. Laurie Littke ( 2013 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
CLAUDIA TRAFICANTE STEVEN R. PRIBYL
Portage, Indiana Langer & Langer
Valparaiso, Indiana
Aug 13 2013, 7:20 am
IN THE
COURT OF APPEALS OF INDIANA
RICHARD LITTKE, )
)
Appellant-Respondent, )
)
vs. ) No. 64A03-1211-DR-509
)
LAURIE LITTKE, )
)
Appellee-Petitioner. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable William E. Alexa, Judge
The Honorable Katherine R. Forbes, Magistrate
Cause No. 64D01-0001-DR-722
August 13, 2013
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
The post-dissolution proceedings resulting in this appeal arose between the
legislature’s 2012 and 2013 amendments to Indiana Code § 31-16-6-6. In response to the
2012 amendment—which changed the presumptive age for termination of child support
from twenty-one to nineteen—Laurie Littke (“Mother”) filed a motion to terminate child
support for the parties’ nineteen-year-old child. Immediately thereafter, Richard Littke
(“Father”) filed a petition for postsecondary educational expenses for the nineteen-year-
old child. Mother then filed a motion to dismiss Father’s petition as untimely pursuant to
the legislature’s 2012 amendment to Indiana Code § 31-16-6-6, which the trial court
granted.
After Father commenced this appeal of the trial court’s post-dissolution order, the
legislature again amended Indiana Code § 31-16-6-6. In the 2013 amendment—which
had an emergency retroactive effective date of July 1, 2012—the legislature added
subsections to the statute to address a parent’s or child’s ability and the time restrictions
for filing a petition for educational needs following the changes enacted in the 2012
Amendment. Because the provisions contained in the 2013 amendment to Indiana Code
§ 31-16-6-6 specifically allow a parent, who had a child support order issued before July
1, 2012, to file a petition for educational needs until the child becomes twenty-one years
old, we reverse the trial court’s order granting Mother’s motion to dismiss Father’s
petition for postsecondary educational expenses.
We reverse and remand.
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ISSUE
Whether the trial court abused its discretion by granting Mother’s motion to
dismiss Father’s petition for postsecondary educational expenses for their
emancipated child as untimely.
FACTS1
Father and Mother were married and had two daughters: Amanda, born in January
1984;2 and Alexandra (“Daughter”), born in March 1993. In September 2001, upon
Mother’s petition for dissolution, the trial court entered a dissolution order that
incorporated the parties’ settlement agreement regarding child custody and support and
property distribution. The parties agreed to joint custody of both children, with Father
having primary physical custody of Amanda and Mother having primary physical
custody of Daughter. Neither the dissolution order nor the settlement agreement
contained a provision regarding postsecondary educational expenses.
In January 2005, the parties entered into an agreed order, in which they agreed to
joint legal and physical custody of Daughter. The parties also agreed that Mother would
provide health insurance for Daughter. The settlement agreement did not contain a
provision regarding postsecondary educational expenses.
In June 2008, Father and Mother entered an agreed modification of the custody
order, in which they agreed to continue joint legal custody of Daughter and for Father to
have physical custody of Daughter. They also agreed that Mother would pay $125.00 per
1
Both Father and Mother filed an appellate appendix but neither one of them has included a copy of the
chronological case summary (“CCS”). We direct both parties’ attention to Indiana Appellate Rule
50(A)(2)(a), which provides that an appendix “shall contain” a copy of the CCS.
2
There is no issue in this appeal regarding Amanda, who was emancipated at the time of the current
proceeding.
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week in child support and that she would continue to maintain health coverage for
Daughter. The agreed order did not contain a provision regarding postsecondary
educational expenses.
Four years later, on July 13, 2012, Mother filed a motion to emancipate Daughter
and terminate child support for then nineteen-year-old Daughter. Mother asserted that
her obligation to pay child support for Daughter terminated as a matter of law on July 1,
2012 due to the 2012 amendment to Indiana Code § 31-16-6-6, which decreased the age
for termination of child support from twenty-one to nineteen years of age. In her petition,
Mother also asserted that her obligation to pay uninsured healthcare expenses should be
terminated as a result of Daughter’s emancipation.
On August 10, 2012, Father filed a motion for college expenses and for past due
uninsured medical expenses (“petition for postsecondary educational expenses”). In his
petition, Father asserted that Daughter was under the age of twenty-one and was a full-
time college student. Father acknowledged that there was no existing order for
postsecondary educational expenses, but he requested that the trial court enter an order
requiring Mother to contribute to Daughter’s postsecondary educational expenses.
On August 16, 2012, Father and Mother entered an “Agreed Order on
Emancipation and Insurance[,]” in which they agreed that Daughter was “emancipated
pursuant to I.C. § 31-16-6-6 effective July 1, 2012, because she [was] nineteen (19) years
of age and [was] not incapacitated” and that “Mother’s obligations to pay periodic child
support for [Daughter] shall be and hereby is permanently terminated.” (Father’s App.
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14). The agreed order did not contain a provision regarding postsecondary educational
expenses.
On November 7, 2012, Mother filed a motion to dismiss Father’s petition for
postsecondary educational expenses. In her motion, Mother alleged that “[a] parent may
assert emancipation of a child as a defense to a petition seeking an order for educational
needs where no order providing for educational needs was entered prior to
emancipation.” (Father’s App. 19). Mother argued that Father’s petition for
postsecondary educational expenses should be dismissed as untimely because he filed it
after Daughter was emancipated.
The trial court held a hearing on Mother’s motion to dismiss on November 8,
2012. Thereafter, the trial court granted Mother’s motion to dismiss Father’s petition for
postsecondary educational expenses. Father now appeals.
DECISION
Father argues that the trial court abused its discretion by granting Mother’s motion
to dismiss Father’s petition for postsecondary educational expenses for nineteen-year-old
emancipated Daughter.
We review a trial court’s decision regarding payment of post-secondary
educational expenses for an abuse of discretion. Hirsch v. Oliver, 970 N.E.2d 651, 662
(Ind. 2012) (citing Carr v. Carr, 600 N.E.2d 943, 945 (Ind. 1992)). Thus, we will affirm
the trial court unless the decision is against the logic and effect of the facts and
circumstances before the trial court. Id.5
At issue in this appeal is Indiana Code § 31-16-6-6, which “governs the
termination of child support and emancipation of a child.” Sexton v. Sexton, 970 N.E.2d
707, 710 (Ind. Ct. App. 2012), reh’g denied, trans. denied. The purpose of Indiana Code
§ 31-16-6-6 “‘is to require that parents provide protection and support for the welfare of
their children until the children reach the specified age or no longer require such care and
support.’” Hirsch v, 970 N.E.2d at 655 (quoting Dunson v. Dunson, 769 N.E.2d 1120,
1124 (Ind. 2002)).
The legislature has amended Indiana Code § 31-16-6-6 during the past two
legislative sessions. In 2012, the legislature amended Indiana Code § 31-16-6-6 (“2012
Amendment”)—with an effective date of July 1, 2012—which “change[d] the
presumptive age for termination of child support from twenty-one to nineteen[.]” Sexton,
970 N.E.2d at 712. In 2013, the legislature again amended Indiana Code § 31-16-6-6
(“2013 Amendment”)—with an emergency retroactive effective date of July 1, 2012—
and added subjections (c) through (e) that address a parent’s or child’s ability and the
timing to file a petition for educational needs following the 2012 Amendment.
The current version of Indiana Code § 31-16-6-6 provides:
(a) The duty to support a child under this chapter, which does not include
support for educational needs, ceases when the child becomes nineteen
(19) years of age unless any of the following conditions occurs:
(1) The child is emancipated before becoming nineteen (19) years of
age. In this case the child support, except for the educational needs
outlined in section 2(a)(1) of this chapter, terminates at the time of
emancipation, although an order for educational needs may continue
in effect until further order of the court.
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(2) The child is incapacitated. In this case the child support
continues during the incapacity or until further order of the court.
(3) The child:
(A) is at least eighteen (18) years of age;
(B) has not attended a secondary school or postsecondary
educational institution for the prior four (4) months and is not
enrolled in a secondary school or postsecondary educational
institution; and
(C) is or is capable of supporting himself or herself through
employment.
In this case the child support terminates upon the court’s finding that
the conditions prescribed in this subdivision exist. However, if the
court finds that the conditions set forth in clauses (A) through (C)
are met but that the child is only partially supporting or is capable of
only partially supporting himself or herself, the court may order that
support be modified instead of terminated.
(b) For purposes of determining if a child is emancipated under subsection
(a)(1), if the court finds that the child:
(1) is on active duty in the United States armed services;
(2) has married; or
(3) is not under the care or control of:
(A) either parent; or
(B) an individual or agency approved by the court;
the court shall find the child emancipated and terminate the child support.
(c) If a court has established a duty to support a child in a court order
issued before July 1, 2012, the:
(1) parent or guardian of the child; or
(2) child;
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may file a petition for educational needs until the child becomes twenty-one
(21) years of age.
(d) If a court has established a duty to support a child in a court order issued
after June 30, 2012, the:
(1) parent or guardian of the child; or
(2) child;
may file a petition for educational needs until the child becomes nineteen
(19) years of age.
(e) If:
(1) an order was issued after June 30, 2012, that denied support for
educational needs to a child who was less than twenty-one (21) years
of age at the time the petition for educational needs was filed; and
(2) support for educational needs was denied based on the fact that
the child was older than eighteen (18) years of age;
notwithstanding any other law, a parent or guardian of the child or the child
may file with the court a subsequent petition for educational needs. The
court shall consider the petition on the merits in accordance with this
section and may not consider the absence of subsection (c) from law at the
time of the initial filing.
(Emphasis added).
This appeal first came to our Court in a state of legislative limbo. When the trial
court entered its order granting Mother’s motion to dismiss Father’s petition for
postsecondary educational expenses, only the 2012 Amendment to Indiana Code § 31-16-
6-6 had been enacted. However, during the pendency of this appeal, the legislature
passed SB 0006 and then enacted the 2013 Amendment to Indiana Code § 31-16-6-6.3 In
3
SB 0006 became S.E.A. No. 6, and the 2013 Amendment was enacted through P.L. 207-2013 § 45.
8
other words, the trial court entered its order granting Mother’s motion to dismiss Father’s
petition for postsecondary educational expenses before the legislature had enacted the
2013 Amendment to Indiana Code § 31-16-6-6 that added subsections (c) through (e).
However, now, subsection (c) of that statute clearly allows a parent, who had a child
support order issued before July 1, 2012, to file a petition for educational needs until the
child becomes twenty-one years old. The 2013 Amendment has a retroactive effective
date of July, 2012. Thus, subsection (c) is applicable to this appeal.
The record before us reveals that there was a child support order issued before July
1, 2012 and that Daughter was less than twenty-one years old at the time Father filed the
petition for postsecondary educational expenses. Thus, under the applicable version of
Indiana Code § 31-16-6-6, Father’s petition for postsecondary educational expenses was
not untimely. See Indiana Code § 31-16-6-6(c). Given the 2013 Amendment to Indiana
Code § 31-16-6-6 and the specific facts of this case, we reverse the order dismissing
Father’s petition for postsecondary educational expenses as untimely and remand to the
trial court to make a determination on the merits of Father’s petition.
Reversed and remanded.
KIRSCH, J., and VAIDIK, J., concur.
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