*1 State, majority v. relies C.T.S. (Ind.Ct.App.20083), distinguishable trans. denied. CT.S. at propriety
from the case bar because the not liti-
of C.T.S.'s time-served credit was CTS.,
gated C.T.S. the State as- properly
serted the trial court detained prior to trial and the issue of
C.T.S. moot;
C.T.S.'s sentence was the State nev- improper
er asserted was to award time- T.
served credit or raised In re Tina Br. (No. 11-12, Appellee 44A02- CTS.
0206-CR-439). (1) juvenile
Because detention and sen- (2)
tencing unique; the General As- juvenile
sembly provision has made no (8) credit; properly
time-served the State
argues against propriety of time- (4) bar;
served credit the case at clearly had the discretion
determine AFE. was need of an addi- rehabilitation, eighteen
tional I re- months
spectfully dissent. (Dayhuff) CARTER,
Laura A.
Appellant-Petitioner, Appellee DAYHUFF, E.
Steven
-Respondent.
No. 32A05-0410-CV-573. of Appeals
Court of Indiana.
June gravamen
and is consistent with the attendant to such waiver decision.
III. the trial court erred in Whether failing guideline to include a work- assessing sheet and considering without the costs Mother *3 . paid for health insurance or the visita- tion credit. History
Facts and Procedural marriage Mother and Father's was dis- 4, January During on their solved 1991. marriage, they Day- had two sons: Mark huff, 11, 1985, January born and Michael Dayhuff, born June The sons In have resided with Father since 1997. March the court ordered Mother $150, pay weekly support of which she has 9, 2008, pay. April continued to On Father filed a for "Petition Modification Decree Marriage." Appellant's of Dissolution of Smith, Thorntown, Ap- Deborah K. for App. petition, requested at 14. In his he pellant. held, hearing that a modification be Hostetter, E. P. Charles Jason Cleve- "pay the court order Mother to O'Hara, land, Brownsburg, Hostetter & college expenses," and that the court Appellee. attorney order Mother to Father's proper." fees and "all other relief Id. at OPINION 74-75. When Father filed the modification Mark, petition, high then a senior in CRONE, J. school, planning to attend Indiana Summary Case University University-Purdue Indianapolis ("IUPUI") and live at home with Father. ("Mother") (Dayhuff) Laura A. Carter junior high Michael was a in school. appeals modifying an order part affirm in and in part. remand Thereafter, parties sought each con- tinuances, and the court on occasion reset Issues congestion. case due to issues, raises three which we attempted negotiations, but to no avail. restate as follows: 8, 2004, Finally, July the court held a in I. Whether the trial court erred hearing, presented by with evidence coun- granting sup- a modification of child summary sel fashion. The evidence port E. Dayhuff favor Steven hearing, revealed that the time of the ("Father") when Father's fo- graduated high Mark had from and school college expenses; cused on Fa- living had attended IUPUI while high II. Whether the trial court erred ther. Michael had also finished granting a modification of planning college. retroactive school and was to attend date, August hearing back On the was clarified that began college; transferring when the older child Mark would be to Indiana University living Bloomington, and and Indiana, paying would be start- with Mark one- and that Michael books, off-campus tuition, gaso- rather third of his fees and living ing at IUPUI (from expressed sur- line to and from with Father. than school loans, funds). questioned grants personal school at their decisions prise help pay remaining for off- balance should paid he should have whether if could live at housing his sons campus with 61% to [Mother] 39% [Fa- paid [Mother] testified she ther]. addition, clari- Father's counsel home. $1,760.00 requesting a on Mark's tuition for the first fied that he was setting year, and an order col- and she should be credited this lege expenses. See id. amount. *4 boys Both will in college be enrolled the court to find the requested
Mother beginning in August of 2004. Mark will portion for some of responsible children transferring University be to Indiana at (noting availability of their education Bloomington campus. to live on Michael agreed to employment), loans and student will attend IUPUI. He intends to live (with Fa- remaining of the costs pay 61% apartment in an of at instead home with 39%), and asked the court to paying ther parties agreed [Father]. The that both expense for the establish a reasonable boys have the academic to sue- housing. Mother took issue with sons' college. ceed in Both of and capable to child request Father's working part-time. been had re- retroactively, stressed Father have Beginning Friday with the second expense contribu- quested only a in August obligation of [Mother's] attorney petition, in his and tion and fees pay child to [Father] termi- pay out that she had continued to pointed boys' college expenses nates. The previously in as per week $150 books, fees, parties at 48. The room and tuition, ordered. See id. board as shall be divided follows: each son regarding their presented evidence sala- (from loans, pay shall one-third school ries, Mother, by paid insurance Stafford funds); grants personal [Mother] amounts, em- Loan Mark's Michael's arid balance; and pay shall 61% of the tuition, fees, costs, [Fa- ployment, ete. pay shall 39% of the balance. The ther] court took the matter under advise- The parties determine and divide the shall ment. spends apartment amount Michael 12, 2004, July the court issued its On amount rental and food the same as the Modify," which "Order Petition at spent by Mark for room and board states as follows: IU, but not more that Michael [sic] request court [Father's] The denies actually spending. . a retro- for modification of child order is conditioned on the two This The court finds April active to point av- maintaining "C" grade boys that both continued to live with sons and Mi- erage. The court orders Mark began after Mark his freshman [Father] copy with a provide chael to each year August in of 2008. The IUPUI grades days receipt. within 10 of his court finds should [Mother] Any prior order not mentioned herein for both sons from unchanged. party remains Each shall Friday August in of 2003 until the first attorney her own fees. pay his or Friday first of 2004 in the August a motion to per amount of week. For this Id. at 20-22. Mother filed $264.00 error, correct which the trial court denied. period, should divide Mark's non-plead that the "result of Father's re- Discussion Decision - quest was not a reduction Support I. of Child Modification fifty per- but an increase of more than Conjunction Order Br. Appellant's cent." at 12. College Expenses original dissolution decree urges apparently at bar not specify case did abused its "in the retroactive discretion how would be allocated. in that the award of child Hence, college age when Mark neared by request filed did not modifi [Father] IUPUI, accepted sought was Father only cation of child relief regarding determination allocation of col by assistance requested was [Father] lege expenses. He titled his college." toward the [Mother] for "Modification of one Decree of Dissolu Appellant's at 9. Mother contends that Br. Marriage." Appellant's App. tion at 74. she was denied advance notice that petition, specifically Within his re going issue quested a hearing, an order determined. *5 fees, expenses attorney and Father's and "A is entitled to advance no party proper." "all other relief Id. going tice that an issue is to be tried and determined a court." Sebastian v. Se At trial hearing, the the court confirmed bastian, (Ind.Ct.App. 228 "petition modify." that the issue was a to 2008) In summarizing position, Torrence, Id. at 24. his (citing 7283 Glover That (Ind.Ct.App.2000)). Father's counsel made clear that Father petition "asking modify." said, we have concluded: filed his to Id. at 27-28. support] Commentary both the [child position filing It's his to al-
and the Worksheet indicate regards college to costs be- college support expenses location of for typical way through cause the to do it is college campus child who resides on a income, uh, an or a child obli- necessarily entails a recalculation of the gation triggers worksheet that a modifi- amount of child due the cus- to cation of child as well. . And party disputes todial Neither parent. so, uh, campus that B. lives on at Wabash Col- asking he's for a modification of asking and to Court lege. Consequently, the allocation of college expenses. obligation set of requested that Father parents-each parent and of the two automatically required a determination pay college expenses. sons to And so of the amount of child that Fa- computation that would necessitate a of Contrary ther owed Mother. to Moth- filing from the date of of allegation, pleading er's raised Father's this issue and the trial court did err petition(.]" not when it it. addressed Id. at contrast, counsel Drwecki, Drweckiv. N.E.2d 445- stated: (Ind.Ct.App.2008). to of attempts to When comes the issue the retro- distinguish by noting of the child Drweeki Mark activeness we have plans couple problems had to remain in Father's home rath- with that. First and er than campus year April live on his first and foremost is the idea that back original exhibits, appear decree does not in the transcript, appendix. higher and at institutions of learning, for filed his 2008 when [Father] taking in- into account: ask for an he did not In fact he indi- in child crease (A) aptitude ability; the child's and uh, that, child had de- the oldest cated (B) ability the child's reasonable college, that aptitude an for veloped expenses contribute to educational able to share the ex- [Mother] through: re- college and asked pense (1) work; that she quested relief (i) loans; obtaining and expenses. He did ask also (iii) fi- obtaining other sources of Uh, attorney fees. he did for reasonable nancial reasonably aid available to support, in child not ask for an increase parent; and each uh, position it has never been our (C) of each sup- of a child the retroactiveness expenses; meet these increase, ub, an issue for port was even (2) medical, special hospital, or dental Uh, we do believe Court. expenses necessary serve the best responsibility percentage child; interests of the before the Court and has tuition was time, (3) however we do quite been some fees mandated under Title IV-D (42 agree not that the Court should make Security Act federal Social 669). through U.S.C. 651 uh, try out when any, figure effort to changed and if should child have (b) If the court orders for a children. so for which child's educational an insti- higher learning tution of under subsec- *6 Id. at 24. (a), tion the court shall reduce other the confusion this We believe for that child that: from the fact that oftentimes case results (1) by the duplicated is educational college expenses and order; and Indeed, support payments linked. "[clhild (2) paid would otherwise to the may properly expenses include for the parent. custodial child's education under Indiana Code see § 31-16-6-2. Ind.Code Sebastian, tion 31-16-6-2[.J" that the supreme Our court has stated 228; Hay Hay, v. 7830N.E.2d see also provisions of Indiana Code Section 31-16- 787, (Ind.Ct.App.2000) (noting 791-92 "amplified" by 6-2 are the Indiana Child college expenses "are the nature Guidelines, Support "guide- and that Further, legislature support"). our has of lines are to be utilized the resolution "the child's educational needs" delineated modify sup- or petitions all to determine as one of the relevant factors to consider Carr, port." Carr v. "any when a trial court orders amount (Ind.1992) § (citing prior Ind.Code 31-1- reasonable for of the child." See 11.5-12). Extraordinary In a section titled specifically, § Ind. Code 31-16-6-1. More commentary to Expenses, Educational provides: the Indiana Code explains: Support Child Guideline 6 (a) The child order or an edu- Extraordinary expenses educational include, may also cational order secondary or may elementary, be for appropriate: where education, and should be post-secondary necessary ex- limited to reasonable and (1) education amounts for the child's attending private special or elementary secondary penses and schools fees, schools, learning, supplies, activity of student fees higher institutions lab trade, business or technical schools like. Room and board will also and the particular meet the educational needs on be included when the student resides campus of the child. otherwise is not with [*] [*] [*] *s [*] ## custodial parent. Post-Secondary impact post-sec- b. Education. The of an award of post- to award authority ondary expenses of the Court educational is substan- secondary is de- expenses educational tial the custodial and non-custodial It is discre- rived from IC 81-16-6-2. parent and a reduction of the basic child tionary post- the court to award obligation to the attributable secondary expenses educational and in in question required will be when making such a deci- what amount. campus resides on or otherwise the child sion, post-sec- the court should consider parent. is not with the custodial effort, ondary group education to be foregoing A consideration fac- weigh ability each tors is addressed in the Worksheet payment expense, contribute to Post-Secondary Expense Education of the student to well as making which should be utilized in expense. expense. distribution this fair If that an the Court determines award Support Commentary Guideline Child post-secondary expenses educational added); {emphases see also Million appropriate, apportion it should (Ind.Ct. Swager, 807 N.E.2d 144-45 parents between the and the App.2004). child, in- taking into consideration the and overall finanacial condition of comes bar, clearly In the case at viewed child, parents and the education and child as re funds, gifts, any education trust oth- lated. His view was when he reinforced savings program. er education Post-Secondary utilized the Education court should also take into consideration ("PSEW"), which in turn di Worksheet loans, scholarships, grants, student him sum- Support rected to the Child Obli *7 year employment mer and school ("CCSOW"). gation Appel Worksheet See cost-reducing programs other available App. (Respondent's lant's at 69-73 A Exhs. to the student. These latter sources of B). that college Father's belief ex assistance should be credited to the penses support and child connected is expense child's share of the educational when, supported by further the fact that unless the court determines that it here, parent a will be ordered to any should a portion credit scholar- support both child and a of the ships, grants and loans to either or both college expenses, child's share(s) parents' of the education ex- partial full or must consider abatement of * * * # # # child support obligation. the basic See pense. Stover, A what determination of constitutes Stover v. 645 N.E.2d expenses necessary (Ind.Ct.App.1995); educational will be see also Ind.Code tuition, books, generally and will include 31-16-6-2(b). Thus, § the court was re Support 7 of the Child Section Worksheet sample A PSEW is included Guide- page lines. At the bottom of the on which the resulting Support in the Recommended Obli- sample following is located is the sentence: gation." J "Line of section Two will be reflected in in cir- program change of child was substantial "consider" abatement quired to consideration, justifying a modification of cumstances Along with support. support). particular Given these cireum- ability of each "weigh must the court stances, Mother could not have been sur- of the payment contribute to parent to 6, prised that child was addressed. Support Guideline expense." Ind. Child Had child not been addressed and weighing Commentary. not abated when payment to contribute to each been college, both sons entered we are confident hardly it seems an abuse college expenses, arguing would Mother otherwise. parties' cur of discretion to examine addressing The court not err in child did salaries, To the con obligations, ete. rent college expenses together. trary, it would make little sense use apportion amounts for the current income II. Retroactive Modification college expenses, but use 1997 ment of argument closely In an tied to calculating the re income amounts one, her first Mother states that she would it obligation because maining agree might that modifications be retro- paint picture not an accurate would any point active to after the responsi respective incomes and parties' filed; however, modify in the case is bilities. Court, not before the Father was seek- stipulated to hearing, At the of child Fa- ing a modification weekly income of and submitted seeking request- ther a modification $1500. verifying that amount from March ing expenses stubs and to that extent college fig- used her 2008forward. Father $1500 agree Mother would the Court he submitted as retroactively modify ure in the worksheets could the Court's they no alternative provided previous exhibits. Mother Orders as related col- argue would an lege. new CSOW factored is worksheets. The sup- of discretion to increase child and also abuse revealed request for justified port when the that Mother's current income retroactively not modification of child be- from the fore the Court. weekly ordered $150 abatement was deter- 1997. Partial/full Appellant's requests Br. at 18. She unnecessary during Mark's first mined Billings, logic Billings we follow the year he with Fa- because (Ind.Ct.App.1990), lived However, full of Moth- ther. abatement which "when stated: confronted sup- non-college-expense-related er's order, port obligation was ordered once both totality of the trial court must consider the *8 in college Mark and Michael were involved in order to ascer- cireumstances living outside of Father's home. tain whether the modification warrant- ed."
Regardless
styled
of how Father
his mo-
tion,
ques-
Having
previous
involved interrelated
concluded
the
this case
sought a modification
support
tions of child
ex-
section that Father
college ex
seeking
support
a of child
to address
penses. Specifically, Father was
modifi
previous
support
penses,
"[rletroactive
of
child
we note
modification
the
only if the
cation of
is erroneous
order
to take into account
ex-
to a
purports
to relate back
penses.
Hay,
589, cially trams. denied. harsh in that the increase (Ind.Ct.App.1992), 594 per arrearage in an week resulted $114 otherwise, a "trial court has the Stated $6,000, of almost" we are unmoved. See discretionary power to make a modification in the Appellant's agree Br. at 8. We to the date for child relate back $6,000 aggregate, significant is amount filed, any to is or date the money-even to someone with Mother's Haley Haley, thereafter." v. However, had household income.4 743, Nag 752 see also (Ind.Ct.App.2002); $6,000 during year benefit of the the (Ind. Beckwith, 899, N.E.2d gatz v. 809 903 it allocated toward when should have been denied, Ind Ct.App.2004), trans. Code addition, In we note that 31-16-16-6(b).3 § weekly the increase of from Father filed his for modification straight to was the result of a $150 $264 Therefore, April on 2008. the trial court application forward Guidelines. was free to make a modification of This was not a case where the court trial 9, 2003, payments April any effective on or deviated from and ordered an amount well date thereafter. The court determined above the amount set forth the Guide pay that Mother "should Moreover, impossible it to lines. while is Friday August from the both sons first say parties' informa without the income Friday in August of 2003 until the first period prior tion for the to March per 2004 in the amount of week." $264.00 quite is conceivable that Mother was the . is, at 20-21. Appellant's App. That while recipient during of a windfall whatever the trial court could have modified the period beyond time her income increased support beginning April level, amount of child yet its to she continued only per per week as the 1997 order.5 $150 9, 2003, the court chose a date four months petition modify. after Father filed the to Worksheet, III. Guideline Health see no abuse of discretion. Insurance, and Visitation argues To the extent Mother faults for not including award of retroactive an espe "incorporated guideline work- "seems 31-16-16-6(b) $160,000. pro- 3. Indiana Code Section income exceeds Snow Rinck Cf. er, 2005) (Ind.Ct.App., vides: (reversing required "pay order that father jurisdiction A. court with over a approximately gross wages percent of his may modify obligor's duty order an year higher [child's] school toward support payment that becomes due: expenses, leaving education him with a mere (1) petition modify after notice of the $7,070 live."). on which he can given directly order has been either through approprlate agent or to:" addition, point In we out that this is not a (A) obligee; ordering "makeup pay- case of a trial court (B) obligee petitioner, the obli- if Snow, ("we ments." See at 1239 cannot con- gor; and payments," espe- 'makeup done an order of (2) concerning peti- before a final order cially considering request [mother] did not tion for modification is entered. the trial court contribute [father] higher [child's] education until evidence, According to the summarized shortly twenty-first birthday."). before her $1,604.79, weekly gross income was *9 case, present the Father filed his A), Appellant's App. (Respondent's at 69 Exh. modify college expenses/support spring the present and Mother's husband "works outside anticipated before the son's start of col- essentially elder the home at the same kind of work lege. one-year delay resolving The in the essentially she does and makes the same sala- ry by Appellant's App. By does." at 27. issue was due to the various continuances she calculations, the and the court. our Mother's annual household
569
findings
weekly support obligation
re-
setting
"specific
out
sheet" or
$264.39.
to arrive at
court
per
what facts were used
ordered
garding
$264
Appellant's Br.
support
Friday
August
child
award."
week until the second
the
that various items
Again,
represents
at 15. She asserts
that amount
a
included in the calcula-
straightforward
should have been
application
the Guide-
support,
is,
child
but were not. Not-
tion of
parents'
lines. That
the
combined
for health insurance and the
ing
$2,434.64.
her costs
weekly adjusted income was
eredit,
contends,
schedule,
"[bloth
visitation
ap-
Pursuant
to the
the
in a reduction
of these would have resulted
weekly
propriate
child
for two
support,
if a modification were
parents
children of
with
combined
re-
agree
warranted."
Id. We
with her
weekly
is
repre-
income
$429.
$264
argument
the health insurance
but
garding
$429,
is,
sents
61%
share.
disagree as to the other contentions.
The court ordered that the
fall
obligation terminate
the
of 2004
Scott,
In
facts and cireumstances
were before
to the Basic Child
entitled Additions
~
Obligation).
Hay,
Support
the trial court.
fying Hay, modification. 730 N.E.2d at ($34.00) per week for health insurance and . uh, irregardless ruling, of the Court's [sic] Hay, argued In the father provide boys will continue to that for the parties' post- enrollment of the a long long as as it's available to her and as secondary a program education sub- they're considered full-time students." change justify- stantial in cireumstances Moreover, Appellant's App. at 46-47. a ing modification of We pay provided stubs that Mother seem to proposition in agreed with this cases regarding her contention not provi- where the have made weekly payment. insurance id. See $34.00 sion for or have been evidence, Notwithstanding at 64. agreement. to reach an We ex- unable Line 4B of Father's worksheet lists the cases, plained that in such the trial court weekly premium health for children as may require parents such presented, Given the evidence not "$0.00." expenses upon a a including payment Mother's insurance order, taking into consideration the calculation of was a deviation parties' the child's and the finan- may from the Guidelines. The trial court positions. so, cial doing have had reason for but did not case, explain being it. That we must Borth, Borth v. 806 N.E.2d 869-70 for remand either recalculation some (Ind.Ct.App.2004). Similarly, re- "[uJpon explanation including for not the health regarding pay- view a trial court's order payment in insurance the calculation. See college expenses, only ment of we reverse Cobb, addition, N.E.2d at 578-76. if clearly the trial court's decision is erro- remand, clarify on the trial court should Ratliff, neous." Ratliff effect, any, what if entry of Mark and (Ind.Ct.App.2004). Michael into should have on the insurance, Regarding health the Guide- payment. health insurance provide: lines parent pays weekly premi- who visitation, Regarding credit provide: may child(ren)'s the Guidelines "The court um cost health insur- grant ance should receive credit towards his the noncustodial to credit support obligation or her child weekly most ward his or her obli ctreumstamces. This credit (Line Worksheet) is entered gation 6 of based space provided on the Parenting the Worksheet the calculation from a Time (See Line 7 and will be in an amount equal Support to Credit Worksheet Guideline Commentary on the 4B Parenting entered Worksheet Line entitled Time (See Support Commentary Support)." Support Guideline 3B and Child Ind. Child *11 petition time When Father filed his for 3(G)(4). modifi- parenting Father's Guideline cation, in all rel- boys living credit worksheet contained zeros both in were Father's at 70. Appellant's App. home, evant boxes. See and the child who soon to at- was Hence, under the CSOW lists college "$0.00" tend in living intended continue at 69. parenting time." See id. "Credit- Father's home. Under those circum- time, parenting Father's counsel As college expenses could have been stances, during summary hearing: "Ap- stated addressed without the need for considering years ago boys did proximately two change in child support because all the moth- visiting not-discontinued their living expenses same would in- have been except very periodic for a basis and had er curred boys' support. for the overnights. past month that no Within majority determines that Father uh, changed, obviously changed it had has "clearly college viewed expenses and child minutes, uh, had within last ten there related," regard- id. at ov- been more communications but still no styled motion, less how he his this case Id. at 82. Mother cites no ernights." questions involves interrelated contrary. Accordingly, we evidence college expenses, so "Mother say grant not to cannot the decision could not have surprised been that child clearly a parenting time credit was support was Id. at addressed." against the facts and cireumstances before When it comes to notice of the issues that the trial court. tried, will what Father believed he was summary, affirm the we modification asking for is not as relevant as what Moth- in all respects except to the er believed was being asked. Had cireum- extent it fails to credit Mother for same, remained the I would hold stances payment of health insurance. The that Mother did adequate not receive no- challenge do not breakdown from sup- tice Father's that child split costs or the 61%-39% of col- - port would also be considered. lege between Mother and Father. costs By a hearing the time was held on remand with instructions to reconsider however, petition, support obligation boys Mother's child one of the had consis- opinion. already tent with this moved out of Father's home and to, planning the other was and a reconsid- in part part. Affirmed and remanded in eration of child If support was warranted. was to abate child RILEY, J., concurs. period boys for the after the moved from ROBB, J., concurs result with home, Father's was also able to recon- separate opinion. period sider child total for the ROBB, Judge, concurs result with after Father's was filed. That the opinion. separate obligated period for the retroactive increased is majority's regard- I concur in the result vagary particular cireumstances of ing Mother received notice whether parties. specific these More ulti- notice at alongside would be issue mately would not have made difference college expenses. majority *12 fully I in the expenses, and concur lege opinion.
remainder PURVIS, Appellant-Defendant,
Willard Indiana, Appellee-Plaintiff.
STATE
No. 49A02-0407-CR-566. Appeals of Indiana.
Court
June Aug.
Transfer Denied notes specific the outcome because of the facts ex- "oftentimes case, of this and I concur in the Op. therefore penses (emphasis linked." majority's trial court prop- added). result I believe this is one of those cases they necessarily erly in which were not linked. addressed both child and col-