*1 years Geary more than ten before occurred this suit.
initiated denying Spence’s reverse the' order
We summary remand
motion entry of sum-
this case to the trial court for
mary judgment Spence’s favor. remanded.
Reversed and STATON, J.,
BAILEY, J., concur. Marriage of Lori L. CLAY
In re the Walsko, Ap Lori L.
POOL n/k/a
pellant-Petitioner, CLAYPOOL, Appellee-
Glenn J.
Respondent.
No. 45A04-9808-CV-424. Appeals of Indiana.
Court
Rehearing Sept. Denied
H05 by de- the trial court erred I. Whether viating guide- from the child abating lines parties’ children. two *3 by erred II. the trial court Whether abating support to the retroactive his for date Father filed Petition Modification. by or- the trial erred
III. Whether all dering that the children exhaust aid, including stu- available financial loans, college expenses to cover dent re- before Mother and Father are expenses. to quired contribute said by the trial court erred IV. Whether awarding attorney to Father. fees reverse and remand. We granted and Mother were a Disso- Father Marriage in 1984. Two children lution Daugh- marriage, of the Son were born Daughter attending college ter. has been away from home since fall of 1995. Daughter returned to Mother’s home not vacation of 1996 but has summer addressing there since. An order lived payment post-secondary ex- Daughter’s 3,1995. penses August on This was entered provided that not cov- order by grants to be ered and financial aid were paid by proportion Mother and Father Daughter required incomes. was their however, aid; apply for all available financial required not to obtain loans. she was Additionally, support provided order paid Daughter for Father away abated 50% while she was from attending college. Point, Grimmer, Crown P. Edward began attending in the fall Son Indiana, Attorney for Appellant. 26, 1996, On Father filed a Veri- Sterba, Swope, requesting M. Jill S. Petition for Modification Melanie Wieser fied Indiana, Sterba, Schererville, Attorney for support obligation & his abate total Appellee. during periods children were residing requested with Mother. Father also
OPINION apply that Son assistance, including financial student all STATON, Judge pay college ex- available to them (“Mother”) ap- (Claypool) Lori L. Walsko penses re- before Father Mother were following the trial peals from quired to contribute. modify post-dissolution proceeding for Modification was set Father’s Petition obligations Claypool of Glenn 5, (“Father”). hearing on December on Lori raises several issues due this date was continued to Mother’s appeal, which we restate as:
H07 Frick, 588, (Ind.Ct.App.1998), Father learned counsel’s vacation. When continuance, he a motion to hold filed trans. denied. A is not payments pend- in the clerk’s office clearly against erroneous unless it is logic grant- ing final resolution. This motion effect facts and circumstances 27,1996. ed on November before court. Id. hearing the issues commenced on A on Indiana Child Guide 28,1997, May for conclusion but was reset presumption lines a rebuttable the evidence on November 1997. At amount that results from May hearing, conclusion of the the application guidelines is the cor weekly released from his rect amount of child to be awarded. *4 support obligations pending reso- child final Smithson, v. Talarico 19,1997 lution of the The November issues. However, (Ind.Ct.App.1991). the commen hearing was continued due to coun- Mother’s tary Supp. provides to Ind. Child G. 1 was rescheduled for sel’s sudden illness and flexibility” determining “there is room for 16,1998, presentation at April which time the support. judge If application believes of evidence concluded. guideline amount would be unreason 10,1998, July trial its On court entered able, unjust, inappropriate, finding or must ordered, findings and conclusions and inter be made that forth sets the reasons for devi (1) alia, Daughter emancipated; that: was ating guideline from amount. The find (2) responsible pay- neither was for ing findings need be as formal as of fact any support obligation ment further child however, law; and conclusions it must (3) Daughter other Son party; the judge’s reasoning. articulate Id. aid, required would be to exhaust all financial ease, In the instant the trial court found including student before Mother and guideline of support that the amount for Son be Father would to contribute per residing week when he is $205.59 college expenses proportion to their re- Mother. trial terminated incomes; (4) spective Father was awarded obligation any support. Father’s (5) office; the funds held the clerk’s justification As for the termination of Fa- $3,544.92, repay Mother was to obligation, the support ther’s trial court rea- support amount of Mother received after soned, Modification; (5) alia, that at away inter Son has been Father filed his Petition for July only Father was awarded since of 1996 and returns to fees from Mother. It is from this order that any period Mother’s for extended dur- appeals. pro- facts will vacations, Additional ing summer which he is necessary. vided as employed full-time. Although we conclude that devia I. guideline justi tion from amount from, Support Deviation Child Guidelines fied, termination Father’s obli contends gation, specific finding without a that Son by deviating erred the child support from emancipated, clearly was was erroneous. guidelines terminating obli Parents have a common a statu law and gation to provide any sup traditional child tory duty their minor children. port Initially, to Mother. we note Further, IC this 31-16-6-6 mandates of continuing support payments issue duty continue until the children reach the Son, applies only proper as the trial court age twenty-one, following unless ly Daughter emancipated found that for conditions occur: support purposes pursuant traditional child (1) emancipated child is before becom- (1998).1 to (21) ing twenty-one years age. In this support, except case the for edu-
On review of modification of child 2(a)(1) of support, cational needs outlined in section will be clearly chapter, affirmed unless erroneous. terminates at time Weiss ' vember22, twenty-one years turned old on No- Thus, the trial court’s decision to although for edu- himself. an order emancipation, obligation until terminate in effect needs continue cational .Father’s Accordingly, we remand erroneous.2 the court. order of further support for Son.3 determination of child from the trial court decide to deviate Should (3) The child: amount, it shall set forth its guideline (18) (A) years age; eighteen is at least doing reasons for so. (B) secondary or attended a has not prior for the four school .postsecondary II. (4) enrolled in a sec- and is not months Retroactive Termination of school; and ondary postsecondary or retroac- The trial court terminated (C) himself capable supporting is or is 26,1996, filed his the date Father tive to through employment. herself Accordingly, Modification. Petition support terminates the child In this ease $3,544.92 to Mother was ordered to refund finding that the conditions upon the court’s Father, paid to Mother the amount Father How- this subdivision exist. prescribed in filing of his Petition for Modifi- between ever, finds that the conditions if the court entry the trial court’s of the order cation and *5 (C) (A) through are set in clauses forth on No- support to hold in the clerk’s office only partially is met but that the child- 27,1996. also The trial court award- vember capable only partially of supporting or is the funds that accrued in ed Father herself, the court himself or supporting 27,1996 office between November clerk’s support be modified in- may order that abating support pending final reso- its order stead of terminated. 28,1997. May on lution (b) determining if a child purposes For (a)(1), argues Mother that the termination if emancipated under subsection is 26,1996 was an support retroactive the court finds that the child: agree. The trial abuse of discretion. We (1) joined armed has the United States obligation sup Fáther’s court terminated services; retroactive to a date when port his children (2) married; or has emancipated. previous neither child was As (3) care control of: is not under the discussed, support ly termination of child (A) parent; or either emancipation inappropri is prior to a child’s (B) agency approved an individual or by ate. The trial court abused its discretion court; by the terminating support retroactive to the date emancipated the court shall find child Father filed his Petition for Modification. support. and terminate Accordingly, the trial court’s order twenty-one, pay is Mother Father and its award IC 31-16-6-6. Son is not all held the clerk’s attending collége during full-time the school to Father of funds pending of the matter can year, during with Mother summer office resolution resides vacations, capable supporting is not not stand.4 recognize hold the modification of child We that the trial court’s order con- 4.We do not will, indeed, templates continue to support as determined on remand not be "any support requires to Son if he fur- retroactively, long applied so as it is consistent assistance.” in termi- ther financial nating opinion support and with the child obligation specific pay- Father’s to make guidelines. We leave this determination to deprived support, ments for Son’s the trial court discretion of the trial court. The trial court’s any support assurance of and rendered Son of of child and its determina- determination duty him unenforceable. on tion of the effective date of the modification Too, ignores respective the trial court’s guide remand will the trial court's distribution of financial abilities of Mother and Father to con- money paid to or held the clerk's support, thereby completely Son’s dis- tribute to regarding pendency of It will office this matter. guidelines. the child obligation pay sup- also affect Father’s port May from the date it was abated on of the 3. We leave to the sound discretion the determination of what abatement of appropriate is when Son is not residing with Mother.
HQ9
III.
The trial court
also allocate
a portion
college
expenses to the child.
College
Expenses
Education
Skalon,
ment unless effort, group education be a and weigh Carr, erroneous. Carr v. ability of parent each to contribute to (Ind.1992). A is not payment expense, as well as the clearly against logic erroneous unless it is ability portion student to and effect of the facts and circumstances expense. before the trial court. Id. If the Court determines that an award of (1998)5 Ind.Code. post-secondary expenses educational ap- parental authorizes a court to order contribu propriate, apportion it should post-secondary tion to a child’s education. child, taking between and the This a matter left to the trial court’s scholarships, grants, into consideration Skalon-Gayer, discretion. Skalon *6 953, loans, N.E.2d Al (Ind.Ct.App.1997). 956 year student summer and school though parent a legal is under no absolute employment and cost-reducing pro- other duty college to education for his grams available to student. the These children, may a court nevertheless order be sources assistance should credited to parent pay part to all of or such costs when the child’s share of the educational ex- appropriate. Id. pense. The trial review of wheth Supp. interpret Ind. Child. G. We 6.7 to enter post-secondary er an order for edu guideline to mean trial that the court should expenses cation be the to conducted within first determine how much of the total ex- statutory framework set out in Ind.Code may pense reasonably by be the borne child (1998),6 Carr, § 31-16-6-1 600 at N.E.2d by par- and how much should be borne Neudecker, (citing 945 Neudecker 577 parents’ portion ents.8 The total should be (Ind.1991)). 960, regard, N.E.2d 962 In this proportion divided to between them their living the “standard of the child have would considering resources. When the various enjoyed marriage had the not been dis cost-reducing programs to the available child solved” means whether and to extent what may reasonably and what the child be ex- parents, married, if still would con have contribute, pected to the trial court should college to the expenses. tributed child’s Id. take heed the differences between non- If trial court determines that an order aid, such as reimbursable financial scholar- college expenses appropriate, par grants, ships and and roughly ents’ contributions shall be student which propor respective their place incomes. Id. at 946. a financial burden on the child.' tional Formerly 1, (1993). § 5. 7. 6 effective Guideline was amended Ind.Code 31-1-11.5-12 Post-secondary expenses 1998. educational 3(E)(3). formerly were addressed in Guideline Formerly (1993). 31-1-11.5-12 IC provides should deter- In some circumstances the find light living mined in of the standard of reasonably expected cannot be enjoyed marriage would have if had been anything college expenses contribute to his be- dissolved. funding yond non-reimbursable such as scholar- grants. ships and 1110 case, earning the parties, ability the relative instant the trial
In the finding respect with to the parties, make a did not and other factors bear on the and Father have that Mother would extent reasonableness of the award. Id. In addi- college expenses to the children’s contributed tion, any part of misconduct on the one of the intact, does marriage if had remained nor parties directly in the par- results other group effort (cid:127)the order reflect the trial court’s ty incurring additional fees be taken guidelines.. in the The approach espoused Lewis, Marriage into In re consideration. and ordered Son trial court 859, (Ind.Ct.App.1994). 861 of financial assistance all means exhaust Here, court ordered Mother them, including grants, scholar available nearly $9,000.00 Father’s loans, to ships, finance their and student attorney fees. The trial court’s order reveals educations, remainder by that it on acts based that decision paid college expenses 77% expense resulted in added inconve- Mother, proportion to their and 23% Specifically, nience to Father. trial court to de The trial court’s order fails incomes. expense found that: Father incurred added portion expense fine of the total what because of Mother’s continuation the De- potentially responsible are children responsible hearing for 100% of their makes them cember November education, regardless of the source hearing; Father incurred added ex- Requiring their financial aid.9 Son and pense as Mother’s failure a result of to com- Daughter to exhaust all forms of non-reim ply discovery requests; with certain no places aid financial bur bursable financial attempts to settle. refused advantage of all den and is to on However, our review of the record parties. requiring the children reveals that the continuance of December acquire placing any student loans without 5,1996 hearing due to Mother’s counsel’s or on the limit on either the amount loans planned vacation. continuance of contribution, considering all children’s total 19,1997 hearing due November to Moth We, thus, aid, forms of erroneous. Although er’s illness. Fa re-apportion court for counsel’s sudden to the trial remand Daughter’s college ex ment of Son’s ther did incur travel from home his penses. Louisiana to Indiana on occasions *7 and, instance, in did not the latter learn of
IV. the his attorney continuance until he and had court, traveled is no there evidence of Attorney Fees part sup misconduct on Mother’s that would contends port attorney an fees. award $6,000.00 awarding in court erred in Father discovery requests attorney post-dissolution proceed fees. In Mother failed may ings, pay produce Daughter’s the trial court were Son’s and tax attorney amount for fees. reasonable These Ind. returns and records. records school (1998).10 § The trial court belonged to the children and were in their Code awarding attorney has broad discretion possession, Although not Mother’s. n fees. Selke v. Selke, 600 102 N.E.2d may have procure been able to docu- these (Ind.1992). reverse trial We will the children, ments Father from the could also clearly against decision if the award directly requested have these documents logic the facts and effect of and circum Finally, from the children. our review of the the court. Id. stances before record does not uncover evidence that Moth- attorney fees, er’s refusal in bad In assessing to settle was faith. In the court addition, as consider such factors the resources of we note that income is at court, recognize, types 9. We as did the trial that both cation. should these of non- discontinued, reimbursable aid be reduced or receive Son and substantial significant to incur grants children could be scholarships they and due to disabilities far, from, which, tuition, debt. paid suffer thus have room, board, of the and some other incidental (1993). Daughter's college Formerly and 31-1-11.5-16 of Son's edu-
HH three times Mother’s From tion of the least income. Guidelines to all cases easily can evidence, conclude we that the trial lead to a harsh and unreasonable result. judge If a particular abused its discretion when it ordered Mother believes that in a case attorney application fees. Guideline amount would unreasonable, unjust, inappropriate, or conclusion, In we reverse trial court’s a finding must be made that sets forth the fees to and award we deviating reason for from the Guideline re-apportion- remand to the trial court for amount. college' expenses, ment of the de- children’s short, In a trial court must avoid blind adher continuing termination of determining ence to the support, rules and Son, and to determination whether what give instead careful consideration the vari extent its modification require ables that application flexible retroactive, children and redistrib- guidelines. Pond, re Marriage In paid of support ution monies or held N.E.2d 401 (Ind.Ct.App.1997), in this aff'd pendency of this matter consistent with respect, grounds, vacated on other sup- court’s determination of child (Ind.1998). N.E.2d 1130 If the evidence in a retroactivity. port particular ease indicates that amount of Reversed and remanded. an through application award reached guidelines unjust unreasonable, would BAILEY, J., concurs. guideline deviate from amount. doing, Id. In so the court must FRIEDLANDER, J., dissents with sepa- findings enter articulating partic written opinion. rate ular circumstances that its conclu findings sion. Such be especially need not FRIEDLANDER, Judge, dissenting formal. Id. respectfully majority’s I dissent from the case, In the instant Son been away has III, I, IV, regarding conclusions Issues from attending college since ex- briefly explain my write the bases of cept during the summer. There evidence disagreement. indicating During following. the sum- mer, employed Son is at a addressing question In full-time decent of child wage. I, majority goes While home from he under Issue indicates that the freely back parents’ and forth between both support obligation termination of the child Moreover, spends homes. he little regard proper was not time with Son because eighteen either of his while he is home in ages Son was between the living expenses summer. Lori’s are twenty-one fixed emancipated. and had been being and do not increase as of Son upon based result This conclusion is Ind.Code Ann. *8 1998). (West view, system my Finally, in the summer. the in In the hearing at of majority’s upon place the time the was that Son narrow focus the black-letter help clothing asked for provision ignores in that financial and ne- law a central tenet parent it process; cessities from each when was need- of calculation ed, system and it that was namely, appears success- enjoys that the trial court wide dis- facts, Upon ful. these I believe that the trial fashioning in cretion award abating support court’s order was not an of the need to tailor award in because an abuse of discretion. particularized view the circumstances of Indeed, Commentary each case. to majority concludes that the trial court 1 Indiana Guideline Child fashioning that erred in an order Guidelines states: resources, own children to exhaust their Although loans, application including parents of the Guidelines before the were re- yields figure quired that to to the becomes a rebuttable contribute children’s flexibility. majority is in presumption, expenses. *9 any expense point, I incurred cannot I believe that the trial should have the error the children to agree require it was discretion allocate the financial burden own of financial assis- exhaust their means represented conduct to the such tance were before As in the said counsel. with other matters contribute. fees, attorney court should area of the trial determining be accorded broad discretion in Finally, disagree I appropriate In it is to do so. when ordering erred in Glenn’s attor- Lori event, culpability Lori without some ney majority fees. The concludes that attorney unnecessary legal improper part forcing Glenn to incur award fees was
1H3 supports fees. The record ing determination, inference that I would affirm the award of fees. Lori did not at all negotiate good times faith to settle the matter without need for a hearing.
contested In view the considera- enjoyed by
ble discretion
trial courts in mak-
there
room for
As the
notes
footnote
9,
disabilities,
immutable,
Op.
black
Guidelines are not
letter
at
as a result of
totally
applica-
law. A strict
inflexible
children
financial
in the
and
receive
assistance
fact,
delays
attor
grants.
In
because the
caused Mother’s
scholarships
and
forms
been so
grants
scholarships
and
have
neys
not attributable to her.
were
that,
(West 1998)
as of the date of
final
substantial
§ 31-16-11-1
authorizes
Ann.
i.e.,
16,1998, they
provid-
April
have
hearing,
attorney
fees in child
award
tuition,
the entire
of the children’s
ed for
cost
statute does
proceedings.
modification
That
board,
room,
ex-
incidental
and additional
finding
in order
require a
of misconduct
not
penses thus far.
Rather,
justify
attorney
an
award
fees.
enjoys
broad
in deter
a trial
discretion
at Purdue
Daughter began her education
attorney
mining
Son en-
an
fees
University in the
and
whether
award of
fall
at Purdue in the fall of 1996. This
appropriate
rolled
in
context.
would be
this
Bower
hearing,
means that at
the time
Bower,
(Ind.Ct.App.1998).
v.