In re the Paternity of Makayla Lauren Pickett, Gregg Roberts v. Shonda Pickett , 2015 Ind. App. LEXIS 648 ( 2015 )

Sep 23 2015, 8:42 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Deborah K. Smith Andrea L. Ciobanu
Sugar Creek Law Alex Beeman
Thorntown, Indiana Ciobanu Law, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of September 23, 2015
Makayla Lauren Pickett Court of Appeals Case No. 29A02-
1501-JP-9
Appeal from the Hamilton Superior
Gregg Roberts, Court
Appellant-Respondent,
The Honorable William J. Hughes,
v. Judge
The Honorable David J. Najjar,
Shonda Pickett, Magistrate
Appellee-Petitioner Case No. 29D03-9504-JP-366
Crone, Judge.
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Case Summary
[1] Gregg Roberts (“Father”) appeals the trial court’s order finding him in
contempt for failing to pay child support to his child, Makayla Lauren Pickett
(“Child”), and ordering him to contribute to her college expenses based on a
motion filed by Shonda Pickett (“Mother”). As an initial matter, Father
contends that the trial court’s findings of facts and conclusions thereon are
inadequate for appellate review. He also argues that the trial court erred by
failing to find that Child repudiated him, requiring him to contribute half the
balance remaining after Child’s contribution toward college expenses is applied,
basing his contribution toward college expenses on the cost of a private
university rather than a public university, and ordering him to pay for college
expenses incurred before Mother’s motion for college expenses was filed.
Finally, he asserts that the trial court erred by ordering him to pay part of the
attorney’s fees incurred by Mother as a sanction for being in contempt of court.
[2] We conclude that the trial court’s findings and conclusions are adequate for our
review. We also conclude the Father waived his argument that Child
repudiated him and that the trial court did not err by ordering Father to pay half
the remaining balance of Child’s college expenses and part of Mother’s
attorney’s fees. However, we conclude that the trial court erred by basing
Father’s contribution toward Child’s college expenses on the costs of a private
university rather than a public university and by ordering him to pay for college
expenses incurred before Mother’s motion was filed. Therefore, we affirm in
part, reverse in part, and remand.
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Facts and Procedural History
[3] Child was born February 21, 1995, in Indianapolis. Mother filed a petition to
establish Father’s paternity and for child support. Father agreed to paternity,
and Mother and Father agreed that Mother would have custody of Child and
Father would exercise visitation. The trial court ordered Father to pay weekly
child support of $78.00 and part of Child’s uninsured medical expenses and
purchase a life insurance policy on his own life with Child named as the
beneficiary.
[4] Father exercised visitation with Child, but Mother and Father’s relationship
was hostile and turbulent. In 2001, following a custody evaluation by two
doctors, the trial court issued an order in which it found that both parties
engaged in conduct that was destructive to Child. The trial court ordered that
Mother continue sole custody of Child conditioned upon her participation in
reunification therapy with Father, that Father’s visitation be as consistent as
possible, and that the parties refrain at all times from speaking negatively about
each other in or near Child’s presence. Parents and Child engaged in
reunification therapy, which was terminated by the counselor. Initially, Father
exercised visitation with Child every other weekend and on Wednesdays, but at
some point his visitation diminished.
[5] Child graduated from high school in the spring of 2013. Before Child
graduated from high school, she and Father would go out to dinner every one
or two weeks. At some point, Child informed Father that she was going to
attend Butler University. Child’s high school provided each graduate with six
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tickets to the graduation ceremony. Child offered Father one ticket. He
accepted and attended her graduation. After Child graduated, they had no
further contact with each other. 1 In the autumn of 2013, Child began attending
Butler.
[6] On February 18, 2014, Mother filed a motion for contempt and for college
expenses. She alleged that Father had failed to pay child support and his share
of Child’s medical expenses and to maintain a life insurance policy. She also
asked for “an Educational Support Order allocating the college expenses
between the parties” and for attorney’s fees. Appellant’s App. at 73. On
February 21, 2014, Child turned nineteen and became emancipated pursuant to
statute.
[7] A hearing on Mother’s motion was held. Mother’s financial declaration
showed that she earned a weekly gross income of $1393, or $72,436 a year.
Petitioner’s Ex. 6; Appellant’s App. at 76. That amount does not include
overtime. At the end of July 2014, Mother had grossed an additional
$14,867.55 from overtime. Appellant’s App. at 82-83. Mother testified that in
the past she had earned over $80,000 with overtime. Tr. at 21.
1
Child testified that she has tried to call Father, but it is unclear whether she was speaking generally about
their relationship or referring specifically to the time period after she graduated. She was asked, “Now, you
stated that your relationship with [Father] fairly well ended after high school, is that correct?” Tr. at 39. She
replied, “Yes it didn’t, it wasn’t my choice for it to end, it’s always been, my father does not contact me, I
have tried to call him.” Id.
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[8] Father’s financial declaration showed that he had $0 income. Petitioner’s Ex.
9; Appellant’s App. at 94. Father’s mother had ovarian cancer, and his primary
job was to take care of her. Tr. at 49. Father and his mother each owned a 50%
interest in a company that rents storage units. Id. at 68-69. Approximately 60%
of the storage units were occupied and producing rental income. Id. at 69. The
company also had two rental locations. Id. at 68. One of the company’s rental
locations was lost to a fire in 2010. Id. at 46. Another location was leased to a
restaurant, but the restaurant failed. Id. at 46-47. Father performed
maintenance for the company. The company’s rental income was held in a
joint bank account with his mother. Father had monthly expenses of $3249.30,
which were paid from this account. Appellant’s App. at 96. Father earns some
money selling things on Craigslist.
[9] Mother testified that the annual cost to attend Butler was approximately
$49,000 per year. Tr. at 25. Child’s scholarships, grants, and financial aid
covered about half that expense. Id. The actual cost of her first year at Butler
was just under $23,000. Id. at 25-26; Petitioner’s Ex. 4. Child testified that the
annual cost to attend Ball State University, where she had also been accepted,
was approximately $22,000, and her scholarships, grants, and financial aid
would have covered about half the cost. Tr. at 38.
[10] On December 5, 2014, the trial court issued an order finding Father in
contempt for failing to pay child support and his share of medical expenses. It
found that Father owed $1630 in child support and $1612 for medical expenses
and ordered him to pay these amounts within thirty days. As a sanction for his
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contempt, the court ordered Father to pay $2000 of Mother’s attorney’s fees.
The trial court also found that Child, being over the age of nineteen, was
emancipated. With regard to college expenses, the trial court found that Father
“earns at least $3249 per month” and is voluntarily underemployed as he has
chosen to care for his mother rather than seek additional employment or tend to
the businesses that are currently paying his bills. Appellant’s App. at 21. The
trial court ordered that Child, Mother, and Father each be responsible for one-
third of Child’s college expenses. The trial court further ordered that Child’s
portion could be satisfied with her scholarships, grants, and work-study, and if
these sources exceeded her portion, the surplus was to be applied toward
reducing the total cost. The remaining balance was to be divided equally
between Mother and Father. Father appeals.
Discussion and Decision
[11] The trial court entered findings of fact and conclusions thereon sua sponte.
Sua sponte findings only control issues that they cover, while a general
judgment standard applies to issues upon which there are no findings.
We may affirm a general judgment with findings on any legal theory
supported by the evidence. As for any findings that have been made,
they will be set aside only if they are clearly erroneous. A finding is
clearly erroneous if there are no facts in the record to support it, either
directly or by inference.
Eisenhut v. Eisenhut, 994 N.E.2d 274, 276 (Ind. Ct. App. 2013) (citations
omitted).
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[12] Also, because we are dealing with family law matters, appellate review is
conducted with “‘a preference for granting latitude and deference to our trial
judges.’” Kicken v. Kicken, 798 N.E.2d 529, 532 (Ind. Ct. App. 2003) (quoting
In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). “An appellate
court reviews a trial court’s decision to order the payment of post-secondary
educational expenses for an abuse of discretion.” Hirsch v. Oliver, 970 N.E.2d
651, 662 (Ind. 2012). The trial court abuses its discretion when its decision is
“against the logic and effect of the facts and circumstances” before it. Id. In
determining whether the trial court abused its discretion, we do not reweigh the
evidence or judge the credibility of witnesses, and we consider only the
evidence and reasonable inferences favorable to the judgment. Lovold v. Ellis,
988 N.E.2d 1144, 1150 (Ind. Ct. App. 2013).
Section 1 – The trial court’s findings of fact are adequate for
appellate review.
[13] As a threshold matter, Father contends that the parties did not submit verified
postsecondary education worksheets and the trial court’s findings are
inadequate to justify and explain its judgment, and therefore remand is
necessary for the trial court to enter more complete findings or to obtain the
parties’ verified postsecondary education worksheets. In support, Father cites
Quinn v. Threlkel, 858 N.E.2d 665, 670-71 (Ind. Ct. App. 2006), in which
another panel of this Court concluded that remand was necessary because the
trial court’s findings were inadequate. There, the trial court made general
findings setting each parent’s percentage share of the child’s college expenses
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and forbidding the child from taking out any additional student loans. Id. at
671. On appeal, the Quinn court noted that there were no findings regarding the
estimated cost of the college, what percentage of the cost should be borne by the
child, and what type of financial aid she was expected to receive. Id. The
Quinn court placed particular emphasis on the omission of any requirement that
the child apply for financial aid. Id. Finally, the Quinn court also noted that the
trial court’s order did not mention that the child was attending a private college
and the higher expense that entails. Id.
[14] In this case, the trial court’s findings are more comprehensive than those in
Quinn. Here, the trial court made findings regarding Father’s income and
Child’s scholarships and financial aid, and the order requires Child to be
responsible for at least one-third of her own college expenses. Appellant’s App.
at 21-22. Additional findings would have been welcome and facilitated our
review. However, facts necessary to our review were presented as evidence and
are not in dispute on appeal, and therefore the absence of postsecondary
education worksheets is not detrimental to a meaningful review. The purpose
of a postsecondary education worksheet is to assist the court in determining the
appropriate obligation of each parent toward college expenses based upon his or
her share of their total income after contribution from the student toward those
expenses. Ind. Child Support Guideline 8(c). The worksheet shows each
parent’s percentage share of their total combined income, educational costs
including tuition, room and board, books, and fees, and the amounts the
student receives in scholarships and other financial aid. Here, Mother and
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Father submitted verified financial declarations to the trial court. Also,
evidence was submitted as to the cost of attending Butler and the amount that
Child has received in scholarships and other financial aid, and the parties do
not dispute these amounts on appeal. Under these circumstances, the trial
court’s findings are adequate for our review.
Section 2 - Father has waived the argument that Child
repudiated him.
[15] Father argues that the trial court erred in ordering him to pay any of Child’s
college expenses because she repudiated him. Father failed to present this
argument to the trial court, and therefore it is waived. See Akiwumi v. Akiwumi,
23 N.E.3d 734, 741 (Ind. Ct. App. 2014) (stating that appellant who raises issue
for first time on appeal waives issue).
[16] Waiver notwithstanding, Father’s argument is unavailing. “Repudiation is
defined as a complete refusal to participate in a relationship with the parent.”
Lovold, 988 N.E.2d at 1150. “Under certain circumstances, repudiation will
obviate a parent’s obligation to pay certain expenses for the child, including
college expenses.” Scales v. Scales, 891 N.E.2d 1116, 1119 (Ind. Ct. App. 2008).
“[W]here a child, as an adult over eighteen years of age, repudiates a parent,
that parent must be allowed to dictate what effect this will have on his or her
contribution to college expenses for that child.” McKay v. McKay, 644 N.E.2d
164, 166 (Ind. Ct. App. 1994). “‘By college age, children of divorced parents
must be expected to begin to come to terms with the reality of their family’s
situation. They must begin to realize that their attitudes and actions are their
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individual responsibilities.’” Id. at 167 (quoting Milne v. Milne, 556 A.2d 854,
861 (Pa. Super. Ct. 1989)). “‘[A]dult children who willfully abandon a parent
must be deemed to have run the risk that such a parent may not be willing to
underwrite their educational pursuits.’” Id. (quoting Milne, 556 A.2d at 865).
[17] Here, the trial court did not make a specific finding on whether Child
repudiated Father, and therefore we may affirm on any legal theory supported
by the evidence. Whether a child has repudiated a parent is a fact-sensitive
determination. Although the record contains evidence that could have
supported a finding that Child repudiated Father, there is also evidence that
would support a determination that Child did not repudiate Father. And under
our standard of review, we may consider only the evidence favorable to the trial
court’s judgment. That evidence shows that after Child turned eighteen but
before she graduated from high school, she and Father had dinner every one or
two weeks. She provided Father with one of six tickets to her graduation, and
he attended. She testified that even though they did not have contact after her
graduation, she wanted to maintain a relationship with Father, but he never
called or tried to contact her. Based on this evidence and our deference to the
trial court in family law matters, we cannot say that the trial court’s decision to
require Father to contribute to Child’s college expenses is against the logic and
effect of the facts and circumstances before it. Therefore, we affirm the
requirement that Father pay part of Child’s college expenses.
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Section 3 – The trial court did not commit clear error by
requiring Father to pay half the remaining balance of Child’s
college expenses.
[18] The trial court found that Child would be responsible for one-third of her
college expenses. Father challenges the trial court’s decision to order him to
pay half the remaining balance. 2 We review the trial court’s apportionment of
college expenses under a clearly erroneous standard. Carr v. Carr, 600 N.E.2d
943, 945 (Ind. 1992); Winslow v. Fifer, 969 N.E.2d 1087, 1092 (Ind. Ct. App.
2012), trans. denied (2013). Therefore, we will affirm the trial court unless its
order “‘is clearly against the logic and effect of the facts and circumstances
which were before’ the court.” Marriage of Hensley v. Hensley, 868 N.E.2d 910,
913 (Ind. Ct. App. 2007) (quoting Carr, 600 N.E.2d at 945). In determining
whether the trial court’s decision is clearly erroneous, we consider only the
evidence and reasonable inferences favorable to the judgment without
reweighing evidence or judging witness credibility. Winslow, 969 N.E.2d at
1092.
Under Indiana law, there is no absolute legal duty on the part of
parents to provide a college education for their children. However, the
statutory authorization for the divorce court to order either or both
parents to pay sums toward their child’s college education constitutes a
2
Mother asserts that Father waived this argument because he failed to report any income and therefore
invited any error. See Reinhart v. Reinhart, 938 N.E.2d 788, 791 (Ind. Ct. App. 2010) (“[A] party may not take
advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or
misconduct.”). We disagree. The fact that Father prepared a financial declaration showing a weekly gross
income of zero and testified to the same does not constitute waiver with regard to whether the trial court’s
determination of his share of Child’s college expenses was erroneous.
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reasonable manner in which to enforce the expectation that most
families would encourage their qualified children to pursue a college
education consistent with individual family values. In determining
whether to order either or both parents to pay sums toward their
child’s college education, the court must consider whether and to what
extent the parents, if still married, would have contributed to the
child’s college expenses.
Hinesley-Petry v. Petry, 894 N.E.2d 277, 280-81 (Ind. Ct. App. 2008) (quoting
McKay, 644 N.E.2d at 166), trans. denied (2009).
[19] Indiana Code Section 31-16-6-2(a) provides that a child support order or an
educational support order may include
(1) amounts for the child’s education in elementary and secondary
schools and at postsecondary educational institutions, taking into
account:
(A) the child’s aptitude and ability;
(B) the child’s reasonable ability to contribute to educational
expenses through:
(i) work;
(ii) obtaining loans; and
(iii) obtaining other sources of financial aid reasonably
available to the child and each parent; and
(C) the ability of each parent to meet these expenses.
[20] “[C]ollege expenses are in the nature of child support.” Panfil v. Fell, 19 N.E.3d
772, 778 (Ind. Ct. App. 2014), trans. denied (2015). “[A]lthough a trial court has
broad discretion to tailor a child support award in light of the circumstances
before it, ‘this discretion must be exercised within the methodological
framework established by the guidelines.’” Quinn, 858 N.E.2d at 670 (quoting
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McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1251-52 (Ind. 1994)). “This principle
applies with equal force to orders regarding post-secondary education expenses.” Id.
(emphasis added). Indiana Child Support Guideline 8(b) provides that “the
court should consider post-secondary education to be a group effort, and weigh
the ability of each parent to contribute to payment of the expense, as well as the
ability of the student to pay a portion of the expense.”
[21] In considering the factors set forth in Section 31-16-6-2(a), we observe that the
evidence shows that Child received “straight As, maybe a B or so.” Tr. at 33.
Thus, she has the aptitude and ability to pursue postsecondary education. She
is also able to contribute to her college expenses with her scholarships, grants,
and other financial aid, and the trial court found that she should be responsible
for at least one-third of her own college expenses. The trial court further found
that if her financial aid, not including loans, exceeds one-third of the total costs,
those funds shall be used to reduce the total balance of her college expenses
before allocation between Mother and Father.
[22] In addition to the child’s aptitude and ability to contribute to the costs, we also
consider the ability of each parent to meet the costs. “[C]hildren should receive
the same proportion of parental income after a dissolution as they would have
received had the family remained intact.” Carr, 600 N.E.2d at 946. Absent an
evidentiary justification in the record and a finding by the trial court that a
proportional obligation would be unfair, the Child Support Guidelines require
that apportionment of educational expenses between the parents be roughly
proportional to their share of income. Id.
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[23] Here, the trial court found that Father “earns at least $3,249.00 per month,” or
$38,988 per year. Appellant’s App. at 21. Father’s financial declaration
reported $0 income. Apparently, the trial court determined Father’s income
based on the evidence that his monthly expenses of $3249 were paid with his
company’s rental income. There was no evidence regarding his company’s
earnings. The evidence Mother submitted shows that she earns at least $72,436
per year, which does not include overtime. Petitioner’s Ex. 6. Their combined
yearly income is $111,424. Father earns 35% of the total income, and Mother
earns 65%. Yet, the trial court ordered each parent to pay 50% of the balance
remaining after Child’s scholarships and other financial aid were applied. This
does not comport with the Child Support Guidelines.
[24] However, the trial court’s departure from the Child Support Guidelines may be
explained by its finding that Father was voluntarily underemployed, from
which it likely determined that Father’s potential income was comparable to
Mother’s. Indiana Child Support Guideline 3(A)(3) states,
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. A determination of potential
income shall be made by determining employment potential and
probable earnings level based on the obligor’s work history,
occupational qualifications, prevailing job opportunities, and earnings
levels in the community.
“Potential income may be determined if a parent has no income, or only
means-tested income, and is capable of earning income or capable or earning
more.” Ind. Child Support Guideline 3(A)(3), cmt 2c. “But the Guidelines do
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not require or encourage parents to make career decisions based strictly upon
the size of potential paychecks, nor do the Guidelines require that parents work
to their full economic potential.” Sandlin v. Sandlin, 972 N.E.2d 371, 375 (Ind.
Ct. App. 2012). “Obviously, a great deal of discretion will have to be used in
this determination.” Ind. Child Support Guideline 3(A)(3), cmt 2c.
[25] One purpose of potential income is to discourage a parent from taking a lower
paying job to avoid the payment of significant support. Id. On some occasions,
this Court has rephrased this principle as follows, “A trial court has wide
discretion with regard to imputing income to ensure the child support obligor
does not evade his or her support obligation.” Miller v. Sugden, 849 N.E.2d 758,
761 (Ind. Ct. App. 2006), trans. denied; see also Kondamuri v. Kondamuri, 852
N.E.2d 939, 950 (Ind. Ct. App. 2006) (“The trial court has discretion to impute
potential income to a parent if it is convinced the parent’s underemployment
‘has been contrived for the sole purpose of evading support obligations.’”)
(quoting In re Marriage of Turner v. Turner, 785 N.E.2d 259, 265 (Ind. Ct. App.
2003)); Apter v. Ross, 781 N.E.2d 744, 761 (Ind. Ct. App. 2003) (“With regards
to imputing income, the trial court enjoys wide discretion to ensure the child
support obligor does not evade his support obligation.”), trans. denied. We
caution that this rephrasing should not be interpreted to mean that potential
income may not be imputed unless the court finds that the parent is avoiding
the payment of significant child support. While the Guidelines clearly indicate
that a parent’s avoidance of child support is grounds for imputing potential
income, it is not a necessary prerequisite. For example, the relevant
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commentary states, “When a parent is unemployed by reason of involuntary
layoff or job termination, it still may be appropriate to include an amount in
gross income representing that parent’s potential income.” Ind. Child Support
Guideline 3(A)(3), cmt 2c(4). Thus, it is within the trial court’s discretion to
impute potential income even under circumstances where avoiding child
support is not the reason for a parent’s unemployment.
[26] We also note that another panel of this Court has stated, “Where a parent is
unemployed or underemployed for a legitimate purpose other than avoiding
child support, there are no grounds for imputing potential income.” Trabucco v.
Trabucco, 944 N.E.2d 544, 550 (Ind. Ct. App. 2011) (citing Kondamuri, 852
N.E.2d at 950), trans. denied. 3 We believe that this statement is overbroad and is
unsupported by the Guidelines. Indeed, our supreme court has emphasized,
“While legitimate reasons may exist for a parent to leave one position and take
a lower paying position other than to avoid child support obligations, this is a
matter entrusted to the trial court and will be reversed only for an abuse of
discretion.” Bojrab v. Bojrab, 810 N.E.2d 1008, 1015 (Ind. 2004). The Bojrab
court made this statement in the context of addressing the husband’s argument
that the trial court erred by declining to retroactively modify his child support
and maintenance. The Bojrab court rejected the husband’s challenge to the trial
court’s decision, based on the following reasoning:
3
Kondamuri in turn cited Lambert v. Lambert, 839 N.E.2d 708 (Ind. Ct. App. 2005), trans. granted (2006),
which our supreme court vacated. 861 N.E.2d 1176 (Ind. 2007).
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[T]he trial court found that the husband voluntarily left one position
for another and that he could have remained at his prior position, that
he would have taken financial measures to maintain the standard of
living for his wife and children during the transition, and that he had
the capacity to finance the support and maintenance during this time.
Id. But see Abouhalkah v. Sharps, 795 N.E.2d 488, 491 (Ind. Ct. App. 2003)
(concluding that trial court erred in finding father voluntarily underemployed
where employer moved his job to Minnesota, but he refused to move so that he
could stay near his children and had been searching for comparable
employment); In re Paternity of E.M.P., 722 N.E.2d 349, 352 (Ind. Ct. App.
2000) (concluding that trial court erred in finding father voluntarily
underemployed where father had been seeking job change due to rigorous
physical nature of original job, which had caused physical injury, and new job
had better benefits and would eventually produce more income).
[27] Here, the trial court found that Father “is voluntarily underemployed, as he has
elected to serve as a caretaker for his mother rather than seek additional
employment, or tend to the businesses that are currently paying his bills.”
Appellant’s App. at 21. Father testified that his mother has ovarian cancer and
that he is her primary caregiver, but there is no evidence regarding the level of
care that she needed or what Father actually provided and no evidence that
Father was unable to pursue additional employment or tend to his businesses.
Moreover, although Father reported $0 income, his company paid all his living
expenses. It was not unreasonable for the trial court to infer that he used his
company funds for additional purchases. We conclude that the trial court did
not abuse its discretion in finding that Father was voluntarily underemployed
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and imputing potential income to him. See Meredith v. Meredith, 854 N.E.2d
942, 948 (Ind. Ct. App. 2006) (concluding that trial court properly imputed
income for voluntary unemployment where father voluntarily took early
retirement and was not seeking employment); Williamson v. Williamson, 825
N.E.2d 33, 44 (Ind. Ct. App. 2005) (“Given [f]ather’s failure to submit a
calculation of his gross receipts minus ordinary and necessary expenses
resulting from his self-employment and his argument that he has no income, we
cannot say that the trial court’s imputation of income to [f]ather is clearly
erroneous.”); Turner, 785 N.E.2d at 265-66 (concluding that trial court properly
imputed potential income where father worked part time even though he had
skill and ability to work full time based on his prior work history); Macher v.
Macher, 746 N.E.2d 120, 127 (Ind. Ct. App. 2001) (concluding that trial court
properly imputed income where husband was self-employed in construction
work and used time off to pursue hunting and fishing and company had offered
him full-time employment with greater earning ability). Accordingly, we affirm
the trial court’s decision to require Father to pay half the remaining balance of
Child’s college expenses.
Section 4 - The trial court abused its discretion by basing
Father’s college contribution on the cost of a private college.
[28] Father contends that the trial court abused its discretion by requiring him to
assist with the costs of Child’s attendance at a private university rather than a
public university. Indiana Child Support Guideline 8(b) provides that “[t]he
court may limit consideration of college expenses to the cost of state supported
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colleges and universities or otherwise may require that the income level of the
family and the achievement level of the child be sufficient to justify the expense
of private school.” In determining whether educational support should be
limited to the cost of in-state, state-supported colleges, the trial court should
balance “the advantages of the more expensive college in relation to the needs
and abilities of the child with the increased hardship of the parent.” Hinesley-
Petry, 894 N.E.2d at 281.
[29] The annual cost to attend Butler is approximately $49,000 per year. Tr. at 25.
Child’s scholarships, grants, and financial aid covered about half that expense.
Id. The actual cost of her first year at Butler was just under $23,000. Id. at 25-
26; Petitioner’s Ex. 4. In addition to Butler, Child applied to and was accepted
by Indiana University, Ball State University, and DePauw University. She also
received a financial aid package from each school. The annual cost to attend
Ball State is approximately $22,000, and Child’s scholarships, grants, and
financial aid would have covered about half that cost or about $11,000. Tr. at
38. Thus, the actual annual cost for Child to attend Ball State would have been
slightly less than half the actual cost to attend Butler.
[30] Child chose Butler because she thought that it offered “a better education and
it’s where [she] wanted to go.” Id. at 33. However, there is no evidence that
Butler offered a special curriculum. In addition, there is no evidence that Child
discussed her decisionmaking process with Father. The evidence shows that
she simply informed him that she was going to go to Butler and asked him to
help pay for it. Accordingly, we conclude that the trial court’s decision to order
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Father to contribute to Child’s college expenses based on the cost of a private
university rather than a public university is against the logic and effect of the
circumstances before it. Cf. Million v. Swager, 807 N.E.2d 140, 145-46 (Ind. Ct.
App. 2004) (concluding that trial court did not err by ordering father to
contribute toward child’s education at Cornell University where it capped his
contribution at $4000 per year, there was no evidence of expenses that child
would incur at an in-state, public university, and father’s complaint that the
decision was made without him was misplaced because child tried to discuss
decision with him but father failed to return child’s calls and father admitted
that he did not communicate with mother regarding child’s upbringing).
Therefore, we remand with instructions to order that Father’s obligation toward
Child’s college expenses be based on the costs of a public university.
Section 5 – The trial court erred by ordering Father to pay
Child’s college expenses incurred before Mother’s motion for
college expenses was filed.
[31] Father contends that the trial court erred by ordering him to contribute to
Child’s college expenses incurred before Mother’s motion for college expenses
was filed. 4 Child had already completed one semester of college before
February 18, 2014, when Mother filed her motion for college expenses. Father
4
Mother argues that Father waived this issue by failing to object to her request for college expenses. We
disagree. Mother did not specifically request expenses that Child incurred before the motion for college
expenses was filed. In other words, the issue was not presented with sufficient specificity that the failure to
object results in waiver.
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argues that a modification of child support cannot be applied to a date before
the motion for modification was filed and likewise an award of college expenses
cannot be applied to a date before the motion for college expenses was filed.
[32] With regard to child support, we observe that the “‘general rule in Indiana is
that retroactive modification of support payments is erroneous if the
modification relates back to a date earlier than the filing of the petition to
modify.’” Sexton v. Sedlak, 946 N.E.2d 1177, 1183-84 (Ind. Ct. App. 2011)
(quoting Becker v. Becker, 902 N.E.2d 818, 820 (Ind. 2009)), trans. denied.
Indiana Code Section 31-16-16-6(b) provides,
A court with jurisdiction over a support order may modify an obligor’s
duty to pay a support payment that becomes due:
(1) after notice of the petition to modify the support order has
been given either directly or through the appropriate agent to:
(A) the obligee; or
(B) if the obligee is the petitioner, the obligor; and
(2) before a final order concerning the petition for modification
is entered.
[33] Thus, the trial court would not have had the authority to modify Father’s child
support obligation before February 18, 2014. See Ogle v. Ogle, 769 N.E.2d 644,
648 (Ind. Ct. App. 2002) (“‘[O]nce funds have accrued to a child’s benefit under
a court order, the court may not annul them in a subsequent proceeding.’”)
(quoting Nill v. Martin, 686 N.E.2d 116, 118 (Ind. 1997)).
[34] In some circumstances, we have likened the payment of college expenses to
child support. See Vagenas v. Vagenas, 879 N.E.2d 1155, 1159 (Ind. Ct. App.
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2008) (concluding that payment of college expenses equates to payment of child
support for purposes of determining whether father’s payments toward child’s
college expenses in lieu of child support payments was in substantial
compliance with child support order), trans. denied; Borum v. Owens, 852 N.E.2d
966, 969 (Ind. Ct. App. 2006) (noting that “[o]rders requiring payment of
college expenses are modifiable because college expenses are in the nature of
child support” for purposes of determining whether an order requiring payment
of college expenses could be modified pursuant to Ind. Code § 31-16-8-1(1)).
However, we are not persuaded that the bright-line rule of Section 31-16-16-6(b)
should be extended to the initial order requiring payment of college expenses.
[35] “[A] child support order and an educational support order are separate and
distinct.” Knisely v. Forte, 875 N.E.2d 335, 340 (Ind. Ct. App. 2007). The
Knisely court made this observation in the context of discussing the factors to be
considered in determining whether the trial court erred in apportioning college
expenses. The Knisely court noted that “[e]ducational support orders must take
into account the child’s aptitude and ability; the child’s reasonable ability to
contribute to educational expenses through work, loans, and obtaining other
sources of financial aid reasonably available to the child and each parent; and
the ability of each parent to meet these expenses.” Id. at 341. Thus, the
considerations involved in determining an award of college expenses are not the
same as those involved in determining child support. Furthermore, college
costs and the child’s ability to contribute to those costs will oftentimes be
difficult to determine before a child starts school. For these reasons, we decline
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to hold that an initial order requiring payment of college expenses can never be
applied prior to the date of the motion for college expenses. 5
[36] Nevertheless, there are circumstances present in this case that lead us to
conclude that retroactive application of Father’s college contribution prior to
February 18, 2014, is improper. Child began college in the fall of 2013, while
she was still eighteen years old. Father’s duty to pay child support did not
terminate until Child became emancipated at age nineteen. See Ind. Code § 31-
16-6-6(a) (“The duty to support a child under this chapter, which does not
include support for educational needs, ceases when the child becomes
nineteen.”). Thus, Father’s child support obligation remained in force during
child’s first semester. Child turned nineteen on February 21, 2014, just three
days after Mother filed her motion. The trial court ordered Father to contribute
to Child’s fall 2013 college expenses, but he still had a duty to pay child support
during that time.
[37] Indiana Code Section 31-16-6-2(b) provides,
If the court orders support for a child’s educational expenses at a
postsecondary educational institution under subsection (a), the court
shall reduce other child support for that child that:
(1) is duplicated by the educational support order; and
(2) would otherwise be paid to the custodial parent.
5
We do not suggest that Indiana Code Section 31-16-16-6(b) does not apply to the subsequent modification
of a college expense order.
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The Guidelines also provide,
The impact of an award of post-secondary educational expenses is
substantial upon the custodial and non-custodial parent and a
reduction of the Basic Child Support Obligation attributable to the
child in question will be required when the child resides on campus or
otherwise is not with the custodial parent.
Ind. Child Support Guideline 8(b). Although a trial court has the authority to
order college expenses and child support, “[w]hen both orders are entered, the
Indiana Child Support Guidelines specifically require a reduction in child
support for the time the child is living away from home for college.” Lovold,
988 N.E.2d at 1152. The trial court’s decision to order Father to contribute to
Child’s fall 2013 college expenses results in duplication of Father’s child
support payment. “Duplicative support and college expense orders should be
avoided.” Stover v. Stover, 645 N.E.2d 1109, 1110 (Ind. Ct. App. 1995) (citing
Carr, 600 N.E.2d at 946). Therefore, we reverse the portion of the order that
requires Father to pay a share of Child’s college expenses incurred before
Mother’s motion was filed.
Section 6 – The trial court did not abuse its discretion by
ordering Father to pay $2000 of Mother’s attorney’s fees.
[38] Finally, Father argues that the trial court abused its discretion by ordering him
to pay $2000 toward Mother’s attorney’s fees. The trial court ordered Father to
pay a portion of Mother’s attorney’s fees “as a sanction for his contempt.”
Appellant’s App. at 25. “The trial court has inherent authority to award
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attorney fees for civil contempt.” Winslow, 969 N.E.2d at 1093. 6 “No statutory
sanction is needed as a court’s power to enforce compliance with its orders and
decrees duly entered is inherent.” Crowl v. Berryhill, 678 N.E.2d 828, 831 (Ind.
Ct. App. 1997). “Without regard to economic resources, once a party is found
in contempt, the trial court has ‘the inherent authority to compensate the
aggrieved party for losses and damages resulting from another’s contemptuous
actions,’” including “the award of attorney’s fees.” Scoleri v. Scoleri, 766 N.E.2d
1211, 1222 (Ind. Ct. App. 2002) (quoting Adler v. Adler, 713 N.E.2d 348, 355
(Ind. Ct. App. 1999)). We review the trial court’s ruling on a contempt petition
for an abuse of discretion. Topolski v. Topolski, 742 N.E.2d 991, 994 (Ind. Ct.
App. 2001). “When reviewing a contempt order, we will neither reweigh the
evidence nor judge the credibility of witnesses.” Id. We will affirm the trial
court’s decision unless it is against the logic and circumstances before it and we
have a firm and definite belief that a mistake has been made. Id.
[39] Mother’s attorney submitted an invoice for services rendered, and the total fees
were $2902.56. Father contends that because he acknowledged that he was
delinquent and did not challenge the amount of his child support arrearage,
very little of Mother’s attorney’s fees were incurred in the maintenance of the
contempt action, and therefore the $2000 sanction was unreasonable. Even
though Father did not challenge his arrearage at the hearing, Mother’s attorney
6
Father mistakenly addresses this issue as though the trial court awarded attorney’s fees pursuant to Indiana
Code Section 31-16-11-1, which authorizes the court to order a party to pay the other party’s court costs
including attorney’s fees in maintaining or defending an action for child support.
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still had to file for contempt and prepare for the contempt hearing with no
knowledge as to what Father’s position would be. We cannot say that the
$2000 sanction was unreasonable. Therefore, we affirm the trial court’s order
requiring Father to pay $2000 toward Mother’s attorney’s fees.
Conclusion
[40] We reject Father’s contention that the trial court erred by failing to find that
Child repudiated him. We affirm the trial court’s decision to require Father to
pay 50% of the remaining balance of Child’s college expenses. Further, we
affirm the trial court’s order requiring Father to pay $2000 toward Mother’s
attorney’s fees. We reverse that portion of the order basing Father’s
contribution to Child’s college expenses on the cost of a private university and
remand for Father’s obligation to be based on the costs of a public university.
We also reverse the portion of the order that requires Father to pay a share of
Child’s college expenses incurred before Mother’s motion for college expenses
was filed. We remand for the trial court to order Father to contribute to Child’s
college expenses consistent with this opinion.
[41] Affirmed in part, reversed in part, and remanded.
May, J., and Bradford, J., concur.
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