*1 еnjoyment the premises, as well as (Oliver) HIRSCH, reasonable Annette which he has Appellant-Petitioner,
incurred on account of the nuisance.
Rust,
L. The Law Torts Respondent. ed.1971) (footnotes omitted)). As the alleged compensable damages Chandlers No. 29A02-1004-DR-429. and there was evidence to Appeals Court of of Indiana. award, damages the trial court did not March abuse its discretion.
Rehearing May Denied CONCLUSION presented
There was evidence sup-
port Lesh, the findings contested findings supported
those a judgment
favor of the Chandlers. accordingly
affirm the trial court’s conclusion that
Lesh’s actions private amounted to a nui-
sance. We reverse the trial court’s deci-
sion to extend the protective order dated 26, 2006,
April because the proceedings on
which that order was based were dis- prejudice
missed with by stipulation of the
parties September 2006. As the
protective order was not effect after the finding that Lesh
violated its terms is reversed. We remand
for redaction language in Judgment
Items C and G regarding protective
order. Finally, we affirm the permanent
injunction against Lesh, entered the con-
tempt Lesh, finding against and the dam-
ages awarded favor of the Chandlers.
Affirmed in part, in part, reversed
remanded.
ROBB, C.J., VAIDIK, J., concur. *4 Parker, Maguire Parker &
Trenna S. P.C., Noblesville, IN, Firm, Attorney Law Appellant. for Benner, Boje Pickering J. Richards Eric Becker, Noblesville, IN, Attor- & Benner for ney Appellee.
OPINION post-secondary expenses. educational In August court entered anoth- BARNES, Judge. er requiring order pay 62.5% Summary Case post-sec- 37.5% Elizabeth’s (Oliver) (“Mother”) Annette Hirsch ap- ondary education The court peals rulings several the trial court noted this order was consistent with related to child her ex-hus- prior its “with regard orders the par- band, (“Father”), Roger Lee Oliver for responsibilities ents’ for their children’s daughters, Courtney their and Elizabeth. post-secondary expenses.” education App. We reverse and remand. January 2008, p. 38. upon Father’s modify
Issues motion to his obli- gation, the trial court entered order The restated us issues before are: expressly finding it cost Mother I. whether the trial court properly per to provide week $42.50 health insur- upon determined the date which Courtney. ance Elizabeth *5 On March Father a petition filed support purposes; emancipate to Elizabeth. The court II. whether the trial court properly subsequently declared Elizabeth emanci- refused to require Father to con- date, pated as of a ruling that which Moth- anything tribute towards Court- challenge er does not in this аppeal.1 Dur- ney’s post-secondary educational 2009, ing $20,000 Elizabeth incurred over expenses following emancipa- her uninsured medical The bulk tion; amount, of that save for a few hundred III. whether the trial court properly dollars, was incurred after the date of her that determined Father did emancipation. sought Mother contribution any payments owe Mother for from Father for uninsured medical ex- expenses uninsured medical penses by incurred Elizabeth and Court- Courtney Elizabeth; and and ney in 2009. IV. whether the trial court properly meanwhile, Courtney, graduated from pay ordered Mother to attorney high school in spring of 2009. During fees and other to Father. 2009, the summer of she worked approxi- mately twenty per hours recep- Facts week as a at tionist a barbershop, earning per $7.25 Mother and Father were married in hour. She aрparently also had held the 1985, and divorced in 1994. parties The job during same her years last two of high had three during children the marriage: Courtney school. lived primarily with Katherine, 1986; born in December Eliza- Katherine during 2009, summer beth, 1988; born in Courtney, March rather than with Mother. There is no May born in 1990. The parties were that Courtney any evidence paid rent granted joint custody children, legal Katherine. and Mother was primary physical awarded custody. Katherine 2009, was emancipated In the fall Courtney began at- 2005, court in April order but tending with Father Ivy She Tech. had a scholarship being required to contribute paid toward her However, 100% of her tuition. court, argued Before the trial reaching twenty-one years Mother age, had because of that Elizabeth emancipated, despite was not incapacity. renting an began Mother’s house and into the semеs- two weeks approximately boyfriend. with her At apartment all from of her ter, Courtney withdrew hearing, conceded Ivy February Mother from She never unenrolled classes. for child Tech, signed up for attended and she 2009, 10, support purposes as of December semester. spring in the 2010 classes contin- but not earlier. Mother also learning upon On Father for ued seek contribution from Ivy from Coui'tney had her withdrawn Courtney’s college expenses. classes, petition Father filed Tech Ivy Tech begun attending had class at withdrawing her. After emancipate January doing still again and was classes, moved back in with her February quit so as of 2010. She had She also ob- stepfather. and her working gym, testifying at providing child care at a job, a new tained col- working attending stress of both job new over- per hour. This gym for $8 had decision lege contributed her earlier рrevious approxi- her one lapped with the Febru- to withdraw from classes. At weeks, then she worked mately two ary hearing, in contravention of his Octo- twenty gym only approximately that he testimony, ber indicated is no evidence that per week. There hours anything did want to contribute toward employer-paid bene- job provided any this college expenses, pri- based fits, health such as insurance. marily upon disapproval his moral hearing on Fa- The trial held moving boyfriend.3 in with her *6 on emancipate to October petition ther’s 19, 2010, On court en- March the trial 22, hearing, At this Father testified 2009. Courtney tered an that decreeing order that Courtney college had him that told emancipated was as of Father the date for her” and she did foresee “was not her, emancipation petition filed his Father also returning. p. Tr. 117. testi- September 2009. trial court also The fied, however, Courtney that he wanted to obligated to ruled that Father was not college, and that he would “con- return to Courtney’s anything contribute towards at support her” if she did so. Id. tinue to college Based the emanci- upon agreed that he Specifically, Father 118. Courtney, of Elizabeth and pation dates willing for [Court- “still to contribute was the continued fact that Father had Id. He ney’s] post-secondary education.” support emancipa- after their paying child that if re- expressly stated also tions, trial court Mother to ordered willing college, help he was to turned to $4,465.75 repay overpayment of Father “books, fees, supplies, things pay for lab child It also found that support. ...,” including parking that like nothing respect to Mother to owed with not to exceed what on and board “[r]oom еx- Elizabeth and 2009 medical Id. at 28.2 housing would be....” campus ordered penses. Finally, the trial court to attorney Mother fees hearing pay was not com- to emancipation $5000.00 The Father, October, also ordered her to reimburse pleted in continued meantime, travel ex- Father’s current "wife In the February $227 traveling with penses of associated Courtney moved out December February he could 3. Father claimed Ivy campus Tech where 2. The testifying he not remember in October campus, commuter-only was a enrolled Courtney's willing col- to contribute to on-campus housing. no lege expenses if she returned to school. (C)is testify capable or request. supporting Mother’s is Florida appeals. through employ- now himself or herself ment. Analysis In this case the child termi- support Emancipation I. upon the that the finding nates court’s first address Mother’s claim prescribed conditions this subdivi- in declaring the trial court erred However, sion exist. if the finds court as emancipated conditions set forth in clauses December 2009 rather than (A) (C) through are met but that the whom Emancipation par of children for a only partially child is or supporting is child pay support ent has been ordered capable only partially supporting by Indiana Code Section 31- governed is herself, may himself or or- court 16-6-6, which states: be der that modified instead (a) duty child The under of terminated. chapter when this ceases the child be- (b) if purposes determining For (21) years of twenty-one age comes un- child is under subsection any of following less conditions oc- (a)(1), if court finds that the child: curs: (1) duty is on active in the United (1) The is emancipated before services; States armed (21) becoming twenty-one years of (2) mаrried; has or age. case the child support, this (3) under the care or control of: except for the educational needs out- (A) either parent; or 2(a)(1) lined section of this chapter, (B) emancipa- terminates at time of an agency ap- individual or tion, court; although order for educational proved may needs continue in effect until fur- shall emancipat- find the child ther order of court. ed and terminate the child support. *7 (2) The is incapacitated. In this What constitutes is emancipation support case the child continues dur- law, question a of emancipa while whether ing incapacity the or until further or- particular tion has occurred a as to child is of the der court. Tew, a question of fact. Tew v. 924 (3) The child: 1262, N.E.2d 1265 (Ind.Ct.App.2010), (A) (18) eighteen years is at least of trans. denied. A party seeking emancipa-
аge; tion age twenty-one of a child before must (B) has not a secondary competent attended establish that evidence school or postsecondary emancipation educational has Specifical- occurred. Id. (4) ly, institution for the four prior party seeking a to have a child declared months and is not emancipated enrolled a under the criteria subsec- of (a)(3) secondary school or tion postsecondary proving bears the burden of the institution; capacity educational v. self-support.4 of Connell Wel- difference, (a)(3) only 4. This court has stated that subsection tion without a where the technically practical consequence of this statute emancipation, does concern of as is child, here, emancipation opposed the of a as the case is termination of child Carpenter support. obligations. Additionally, termination of child v. the trial here 587, Carpenter, (Ind.Ct.App. expressly Courtney emancipated, 891 N.E.2d 593 found to be 2008). Regardless, largely party argues improper this is distinc- neither that it was
963
on
emancipation actually
that her
occurred
(Ind.Ct.App.
504-05
N.E.2d
ty, 725
2000).
date,
under
emancipation
opposed
subsection
that
as
to another date.
For
(b)(3),
be evidence both that
there must
Regardless,
it is
evident that
him
putting
the action
the child initiated
Courtney
emanci-
court considered
to be
parents’
control
or herself outside
self
(a)(3)
the eman-
pated under subsection
of
self-support
the child is
fact
and that
cipation
Specifically, in its order
statute.
Tew,
Generally,
a trial
when
graduated
high
from
school and had
regarding the date
court’s determination
any
edu-
engaged
post-high
been
school
reweigh
will neither
emancipation, we
of
completed
cational
in which
pursuits
she
credibility
nor
of
evidence
assess
more than
months
any classes for
four
witnesses, and
not set aside the
we will
graduation
high
subsequent
”
it is clearly
unless
finding of the trial court
school,
is
Courtney
emancipated....
that
Connell,
965 meet ability parent the burden of of each these ex- twenty-one bears age of Many persons at emancipation. penses. Knisely, (citing 875 N.E.2d 341 proving 31-16-6-2). maturing. They § late teens are still their I.C. substantial, continuing parental
may need We review a trial court’s deci navi- they begin as support and guidance regarding payment post-sec sion world, employ- when gating the “adult” for an ondary expenses educational abuse high a recent school options, for ment Rincker, v. of discretion. Snow 823 еxperience, work with little or no graduate 1234, (Ind.Ct.App.2005), N.E.2d 1237 low-paying, limited to low-benefit often are trans. denied. An abuse of discretion oc clear- public policy The of this state jobs. if is against curs court’s decision require payment continued child ly is to logic in the and effect of the facts and cir longer until the child no support court, Dunson, before the or the rea support. actual need of such See cumstances at 1124. do not conclude 769 N.E.2d sonable inferences drawn therefrom. Id. Courtney struggled because just Expenses may be included within a college managed semester of her first post-secondary expense education order low-paying jobs, at part-time tuition, books, fees, to work supplies, are lab stu any time she was at before fees, activity dent room and board if the December 2009. The trial cоurt erred living parent, child is not with the custodial concluding otherwise. We reverse the transportation expenses, clothing, or car emancipating trial court’s order entertainment, and incidental as of and remand for 8(b). Support See Ind. Child G. A child sup- of child recalculation of the amount attending college, a commuter even one port overpaid, using emancipa- an home, relatively parent’s near a custodial of December tion date live required parent is not with that Tew, attending college. while See N.E.2d at 1267. Post-Secondary Educational II. pres- We also reiterate that this case
Expenses ents a in which there was a tem- situation We now address Mother’s con brief, porary, gap Courtney’s albeit that the trial court erred in absolv tention post-secondary This court education. has ing any оbligation Father of contribute following guidelines devised the for deter- the cost of attendance towards mining whether “it is reasonable or unrea- Ivy Tech. A order and sonable, equitable inequitable, or to re- expense separate educational order are quire parent parents or to contribute Forte, Knisely and distinct. 875 N.E.2d expenses to the of a discontinued once but An (Ind.Ct.App.2007). order for higher now resumed education.” Thiele v. college or payment post-secondary Thiele, (Ind.Ct. 1329-30 N.E.2d expenses may beyond continue the date of App.1985). § emancipation. a child’s See 31-16- I.C. 6-6(a)(l). Among may which be facts consid- Educational orders making a determination ered such aptitude must take into account the child’s (1) length elapsed of time be- ability ability; the child’s reasonable are — interruption resumption tween the to contribute to educational (2) work, loans, program; age of the educational obtaining other through (3) child; ability financial reasonably of financial aid avail sources *10 (4) whether parent; parent parents; to the child and each and the the or the able entirely relieving Father of the re- ports intended to aban- parents and the higher sponsibility to contribute. also permanently program the don (5) it; scholarship Ivy withdrawing when has a 100% tuition education present Tech, child’s greatly of the which would reduce the the reasonableness Mother, Father, returning to an and purpose money desire and amount of (6) the higher learning; institution of all have contribute to her should child, particularly in re- activities of the education. during or business employment lation to Furthermore, between inter- time (7) hiatus; made for provisions other ruption resumption Courtney’s (8) parents; or parent the child post-secondary very education was brief. in life of the child and station indication, There was scant aside from one (9) any other facts or parent parents; or Father, comment to that she intended to reasonably related to the circumstances education, as permanently abandon education, for such need of the child Ivy Tech and she never un-enrolled from or to ability parent parents pro- registered spring for 2010 semes- instead education, vide such and the reasonable- very young, ter classes. She was still as equity requiring parent ness or or to in his or her opposed someone mid-20s parents provide to educational seeking college expenses contribution for Id. long after a absence from school. Father Here, although Courtney did not post-secondary contributed to the edu- classes, complete her first semester of Fa Courtney’s cation both of older expressed hope ther at the October 2009 sisters, indicating post-secondary edu- college. that she would return to hearing something cation for his children is that he Additionally, testify Father did at although generally supports. Mother and her cur- hearing that his income the October 2009 rent husband have contributed to Court- decreased, had he did not indicate that this ney’s living expenses, including room and prevent contributing
would him from to expenses, board and car since she went To the Courtney’s college education.8 con back to school. trary, expressly he and under oath stated supports We cannot find that the record willingness
his to contribute towards the reasonable, any equitable uрon basis which if post-secondary cost of her education she all obligation relieve agreed, did return to school. He also post-secondary assist her attorney, to a response question from his given educational Fa- pursuits, especially seeking that he was to terminate his re “[fjor willingness ther’s to assist that he ex- sponsibility college expenses, just for [Elizabeth], Thus, p. pressed hearing. is that correct?” Tr. the October we Courtney may conclude the trial court abused its discre- possibly To the extent be her in terminating obligation able to contribute to the cost of edu tion Father’s through employment, pay anything post-sec- cation factor towards may justified determining ondary expenses, education remand be might apportion amount that Father contribute to for the trial court to those costs education; Mоther, Father, sup- Courtney. we do not believe it between respect post-sec- (Ind.Ct.App.2008). would We also note that with This ondary expenses, justify exploration entire into entire education finan- Father’s finan- wife, picture parties may picture, including cial of all the be consid- cial that of his current Schacht, just ered. N.E.2d his own income. See Schacht *11 in the Support child Overpayment of premium insurance total III. health up with a total obligation, came Calculation support $173.00, obligation of weekly support Next, argu Mother’s we address of that amount. assigned to Father $113.25 erred calcu that the trial court ment multiplied then The trial court $113.25 support amount of child lating the number of weeks between times the Mother was overpaid, and which Father emancipation Elizabeth’s date of Specifical to refund to Father. required which it Courtney’s emancipation, set paying support child ly, Father continued weeks, twenty-nine equaled which Courtney until the Elizabeth and for both $3,284.25 the trial court support of child though February even both were hearing, Find- legitimately Father owed. believed retroactively before $7,500.00 sup- paid Father had child ing the trial court time. Mother contends emancipation, it Elizabeth’s port since calculating overpaid Father’s erred overpaid Father had in the amount found failed take into because it to support child $4,465.75 ($7,500.00-$3,284.25). If the per week to paid account that she $42.50 same trial court had used the amount Courtney’s insurance.9 health wards obligation as support child $141.08 before— trial court January when the In sup- the amount of per week—then child obligation support Father’s child modified required to Father would have been port it Courtney, to Elizabeth and respect have pay twenty-nine weeks would weekly support the total obli- found that $4,091.32, overpayment been and Father’s both gation par- for both children and for would have been Mother had to refund ents, into account the taking $42.50 $3,408.68 ($7,500.00-$4,091.32). reduced to premium health insurance attrib- per week Mother, to was Of that uted $215.50. clearly the trial court erred We conclude amount, Father, parent as non-custodial support of Father’s child in its calculation earner, to higher pay was child January The overpayment. represented week. child per This $141.08 order, final which support binding, was a Elizabeth, Courtney only; who support for modify, petition never filed to time, college at the was accounted emancipation seeking of Eliza- aside from weekly pay- additional $15.38 Courtney. Father’s March beth and post-secondary education ment from re- emancipate Elizabeth did petition worksheet.10 support reduction his child obli- quest a When, order, only just but to reflect that Court- gation, in its March 2010 By excluding ney being supported. calculated the amount of Father’s its expressly health insurance cost from calcula- overpayment, it support child support legiti- of child that Father going it make that tion stated owed, mately improperly the trial court 2008 child computation using January however, so, retroactively support his obli- doing modified support worksheet. Becker, 902 N.E.2d per See Becker v. gation. it not include the week $42.50 did remand, adjusted on Father and Mother’s combined we have 10. Based 9. On because income, emancipation, the trial application date of of the Indiana child schedule, have the amount of court will to recalculate per $173 week be would overpayment support. Father's for one child. the amount of owed provide addressing this issue in order are premium was added The health insurance how make that guidance on remand in $215.50. onto that to reach calculation. *12 968 (Ind.2009) (holding generally, 820 that 2010 order support was child work- may retroactively
trial courts reduce a reflecting paying sheet Father per $113.25 support obligation, preceding child to date in support Courtney, week for as we have discussed, petition modify, obligation ac- has and which stated that Mother crued). responsible would be for the first $539.76 in expenses. uninsured medical
Moreover, the mere fact that Elizabeth’s
health insurance
cost
removed as
As between these three
we
figures,
(for
emancipation,
again
her
child
pur-
conclude that the trial court should
fact),
poses if not in
did not alter
have
January
this
utilized the number from the
presented
calculus. There was evidence
2008 support order. That is the order that
premium,
that the health insurance
offered was in full
until
effect
date
Eliza-
through Mother’s current husband’s em-
emancipation
beth’s
in March 2009. Moth-
ployer,
change
did not
based on
num-
er
documentary
submitted
evidence from
dependent
ber
policy.
children on the
her health
provider
insurance
indicating
Thus, there was no evidence that
prior
3, 2009,
health
to March
Elizabeth
insurance
changed
costs
Elizabeth’s
incurred
total of
in medical
$500.64
ex-
emancipation. When
trial
court recal-
penses that
not paid by
were
insurance.11
culates the
of child support
amount
appeal,
On
Mother does not
reim-
seek
Mother,
overpaid
based on
bursement for
of Elizabeth’s medical
emancipation date of
it
expenses
date,
December
incurred after that
which
must utilize
$20,000.
Father’s child
obli- were
approximately
As
for
gation
for
as reflected in the Courtney,
exhibits,
one of Father’s own
January
N,
2008 child support
similarly
order.
Exhibit
indicates that Court-
ney incurred
expenses
medical
atof
least
issue,
Related
this
Mother con
(before
10, 2009)
December
$789
were
tends the
determining
trial court erred in
paid by
insurance.12
This is
total of
that Father was not liable
any pay
for
$1289.64,or
percent
above
six
cutoff of
ment of
expenses
uninsured medical
in
for which
solely
$612.83
Mother was
re-
curred in
Courtney.
2009
Elizabeth and
sponsible,
leaving
$676.81
uninsured
order,
court’s March 2010
it
expenses
medical
to be divided between
stated that Mother
responsible
for the
Mother and Father. We remand for the
first
ex
$755.04
uninsured mediсal
trial court to
enter
order to that effect.
penses
pursuant
to the
per
six
Attorney
IV.
Fees
Costs
See
cent rule.
Supp.
G. 7.
Child
This
number apparently came
sup
from a child
Finally, we address Mother’s
port
noted,
order dating from 2005. As
claim that the trial court erred in ordering
Father’s
support obligation
was mod
pay
her to
in attorney
$5000.00
fees to
ified in January 2008. That order stated
Father.
“Indiana follows the ‘American
Rule,’
Mother
responsible
for the first
whereby parties
required
are
to pay
$612.83
uninsured medical
per
attorney
their own
agree
fees absent an
year.
to the trial
Attached
court’s March ment between
parties, statutory
au-
11. Mother’s brief asserts that
in-
Elizabeth
states
brief that
$410.64
curred
in uninsured medical ex-
$749
incurred
expenses;
in uninsured medical
penses. We cannot
harmonize
number
again, this
to be
seems
in direct conflict with
with thаt reflected in Mother’s Exhibit
documentary
indicating
$789
evidence
printout
which
includes
from her health
such
provider.
insurance
respect
to the merits
Mother’s
contrary.” with
rule to the
or other
thority,
And,
(Ind.
reviewing the reasonable-
claims.
Hester,
N.E.2d
Smyth
*13
novo,
obvious,
it
ness of those claims de
con-
Father
denied.
Ct.App.2009), trans.
have
in
considering that we
ruled
after
by
supported
was
that
award
tends
appeal,
favor on
issues on
Mother’s
several
31-16-11-1, which
Code Section
Indiana
frivolous,
issues
not
unrea-
that those
were
in fami-
attorney fees
the
of
permits
award
sonable,
makes
groundless.
or
Father
however,
statute,
That
law matters.
ly
fact
the
appeal
the
that at
much
of
to
the
court
consider
requires the trial
essentially
2010
February
hearing, Mother
resources,
condi-
their economic
parties’
Courtney
emancipated
conceded
em-
tion,
engage
gainful
in
ability
their
to
10, 2009, and claims that
as of December
bear on
factors that
ployment, and other
unnecessarily prolonged
proceed-
this
Bean v.
reasonableness.
the award’s
implying
this concession could
ings,
Bean,
(Ind.Ct.App.
266
902 N.E.2d
This
have been made earlier.
overlooks
2009).
the trial
indication that
There is no
concession,
it
fact that
this
such as
when
engaged
in such consideration
be,
Courtney
may
came about because
to Father.
attorney
it awarded
fees
of
home between the
moved out Mother’s
Rather,
the trial court
appears
it
February
2009 and
date of
October
arguments
Mother’s claims and
believed
hearings.
It also was
a conces-
order,
trial court
In its
were frivolous.
Courtney
date
believed
sion to the
to
required
“has been
that Father
stated
emancipatеd,
was it a
nor
concession
peri
this
over
substantial
litigate
matter
of responsibility
that Father was absolved
in a
multiple hearings
time
od of
Courtney’s post-secondary
to
contribute
to
parties
the children of the
situation where
clearly
App. p.
emancipated.”
were
to
imply
The trial court also seemed
34-52-1-1(b),
Indiana
Section
Code
Under
colluded with
and Eliza-
to a
attorney
award
fees
may
a trial court
hearings,
at the
appearing
to avoid
beth
“contin
party
party
if the other
prevailing
required
it stated that Father “was
when
or
litigate
to
the action
defense
ued
necessary
in
to secure
engage
hearings
to
clearly be
or defense
party’s
claim
of
presence
the adult children
unreasonable,
frivolous,
ground
or
came
testify,
they
the fact that
despite
to
parties
less,”
“litigated
if
рarty
or
the other
in
subpoenaed by
appro-
an
[Father]
were
reviewing
in
action
bad faith.”
p. 58. This state-
priate
App.
fashion.”
statute,
under this
attorney
award of
fees
ment, however,
accompanied by any
is not
made
any
findings
first
factual
we
review
finding
factual
as
how Mother
express
Smyth,
clear-
by the trial court for
error.
matter,
in
the rec-
was to blame
this
Next,
de
we review
Courts BAKER, J., part concurs in and dissents in the party, award costs to a absence of a in part opinion. with providing. statute Calhoun v. Ham so BAKER, part. Judge, dissenting in mond, Ind.App. 169 345 N.E.2d I respеctfully dissent the majori- from (1976). 859, respect 860 With to witness ty’s regarding conclusions the date of fees, cannot be of costs awarded excess Courtney’s emancipation and Father’s obli- 43, provided by those Id. statute. at 345 gation Courtney’s post- contribute Additionally, N.E.2d at 862. a witness secondary educational personal pay must make a demand for statutory ment of his or her Emancipation fees. Date witness Here, See id. at N.E.2d First, as to the date of Courtney’s eman- (1) there is no evidence that Mother did cipation, I pur- observe that the relevant statutory not tender the witness fees to pose of Code Indiana section 31-16-6- Father’s current wife she when issued the 6(a)(3) is to ensure that are children cared her, (2) subpoena for and even if such fees they for until longer require support. no tendered, it had not been was for Father’s Dunson, Dunson 769 N.E.2d current wife to seek collection of those (Ind.2002). only I can assume that fees, also not Father. note that Fa We Assembly General intended there to be an ther testified that he his current wife’s implicit requirement that parents kept separate. finances are If is the ehild(ren) Here, act good faith. the trial case, then it improper would be to award court heard that Courtney evidence with- Father the costs of his current wife’s trav from only drew all classes after two weeks el to Indiana. We reverse the award $277 later college told Father that was not to Father for his ex current wife’s travel for her and that she did foresee re- penses. turning to Having school. heard this evi- dence, the trial court must have concluded Conclusion two weeks of classes did emancipa- reverse trial court’s not constitute attending good sсhool tion Courtney September during date faith the preceding four months. I denying by separate we are concurrently opinion. this motion order filed this credibility wanting, this found evidence sufficient it and I believe this support the trial court’s conclusion on believe we should not second-guess appeal. issue. that assessment on Consequently, I find would that the trial court did not err Courtney As still en to whether by finding that enrolled Ivy withdrawing Tech from rolled in Ivy Tech on classes, although I note that the rele all “enroll,” Turning this vant statute does not define to whether is capable herself, supporting set forth its own definition of the trial court has heard term in this context: enrolled “means evidence that maintained em- being weeknights more involved in the application ployment than and weekends rather, it has her process; during years high means that one last two school. accepted during been the institution and is And following summer school, officially registered graduation high at the institution as Courtney was Butrum, 1145. employed by Big League student.” 803 N.E.2d at Barbers and L.A. *15 this quarrel I do not definition Fitness. While Mother focuses on term, disorder, alleged I believe that certain anxiety under failed to but offer any those expert circumstances —such as herein—it evidence that supporting claim. enough. does far such a trial go Accepting Consequently, the court was free to a testimony broad definition the term means that discount the that effect. I in conceivably student could be “enrolled” that by believe the result reached ma- the in postsecondary jority necessarily requires educational institution reweighing the evidence, perpetuity taking ever actually respectfully without and dissent its conclusion on this issue. I would classes. find that the regarding Courtney’s evidence employ- above, As I believe the noted that Gen- ment history supports the trial court’s con- Assembly eral intends there to a re- be capable clusion that supporting she parties all quirement that act faith. good employment September herself through Thus, I add would Butrum defini- 23, 2009. enrolled, tion of enrolled as follows: in the Inasmuch as I believe that the (a)(8), evidence context of subsection means that supports findings the trial institution, court’s that on accepted one has been to the is Courtney was at least registered officially at the institution as old, eighteen years had post- not attended student, good and in faith is or attending secondary previous classes four intends to attend the institution in the postsec- months was not enrolled in a foreseeable future. institution, ondary capable of sup- Herе, trial heard testimony court herself, porting I would find the trial all of dropped her classes court did not err her finding emancipat- only after attending school for two weeks. ed as that date. She her that college then told Post^Secondary Expenses Educational her and that she did not foresee Second, Although Courtney to school. returning respectfully I dissent from the January majority’s re-enrolled classes in 2010 and regarding conclusions Father’s taking was still those classes at time of responsibility to contribute towards Court- hearing February ney’s post-secondary educational explicitly skepticism court noted its provides Indiana Code section 31-16-6-2 complete she would those classes. It that it is within the trial court’s discretion her taking evident that trial court to award educational assessed following remaining expenses set forth issuеs—healthcare into account the factors attorney fully fees—-I concur with in the statute: majority. (A) ability; aptitude and the child’s (B) ability reasonable to con- the child’s
tribute educational
through:
(i) work;
(ii) loans; obtaining
(iii) obtaining other of finan- sources Larry BOWYER Lakes Limited d/b/a reasonably available to the cial aid Liability Corp., Appellant- parent; each child and Defendant, (C) ability of parent each meet these expenses. INDIANA DEPARTMENT OF 16—6—2(a)(1). §
I.C. 31— RESOURCES, NATURAL Here, the trial heard evidence Appellee-Plaintiff. through able to Courtney was work No. 09A05-0912-CV-740. junior years high and senior school attending while school full-time. She had Appeals Court of of Indiana. scholarship. received a 100% tuition She *16 school, high had to work after continued March 2011. jobs during fol- held two summer Rehearing May Denied lowing graduation. Additionally, Father’s income decreased
significantly gross in 2009. In his $111,000. 2009, Father,
income facing significant
who is a trucker de-
crease in available work and a threefold fuel, a gross
increase in the cost of had $50,000
income of as of
Father also testified that told
him, withdrawing from all classes weeks, college
after two not for returning
her and she not foresee did
college.
All evidence of this is relevant to the statutory
above factors. The trial court evidence,
weighed the the situ- assessed
ation, and concluded that Father’s obli-
gation contribute edu- terminated.
cational I issue, by reversing
believe that on this majority necessarily reweighing Consequently, respect- evidence. I
fully dissent and would affirm the trial
court’s on this to the ruling issue. As