Cаrole A. Fiste appeals from a decree of dissolution, challenging the apportionment of college expenses; the amount of child support she has been ordered to pay Roger and the court's failure to abate child support while the son is at school; the exelusion from the marital pot of Roger's contingent remainder interest in real estate; the credit given Roger for household bills paid during the parties' separation; and, the trial court's decision to divide the marital property equally between the parties. Roger Fiste cross-appeals, arguing that he was entitled to a credit for сhild support paid to Carole while divorce proceedings were pending and the minor child was in her physical custody but a full-time college student living on campus; and, for college expenses paid during that same period. We affirm in part and reverse in part.
Apportionment of College Expenses
The trial court apportioned all of the minor son's college expenses, including tuition, room and board, and books, by ordering the son to pay one-third of his expenses, Carole Fiste to pay one-third of the son's expenses, and Roger Fiste to pay one-third of the son's expenses commencing with the 1998-94 college year. However, applying the child support guidelines to the evidence, the trial court also found that Carole's income was twenty-two percent (22%) of the gross total of both incomes and Roger's income amounted to seventy-eight (78%) of the gross total income. This finding is supported by the evidence of record. Accordingly, Carole argues that her proportionate share of the son's college expenses should be reduced to around 22%. Roger argues that we should consider all of the facts and evidence before the trial court, taking into account the fact that the minor son is unable to pay his one-third share, and hence, as a practicаl matter, Roger will effectively be paying two-thirds of the total college expense.
"[Wlhen the apportionment of college expenses is at issue, the clearly erroneous standard articulated in Humphrey governs appellate review." Carr v. Carr (1992), Ind.,
The trial court made no finding that a proportional allocation of the college expenses would be unfair. Moreovеr, the ree-ord would not support such a finding. The evidence before the court established that Carole, who had very little education, earned approximately $12,000 per year while Roger *1371 earned around $50,000. The son had chosen to attend a private school with yearly costs in the neighborhood of $18,000. In the first year, approximately $7,000.00 of the total expense had been offset by scholarships and grants, some of which were expected to continue in the future. When the extraordinary expense of a private college education is properly considered in light of the analytical model adoptеd by the guidelines, Ind.Child Support Guideline 3(E)(8), Carr, id., the trial court's deviation from the proportionality intended by the guidelines is not insubstantial. In the absence of a finding and evidence justifying a deviation from the guidelines, we conclude that the trial court abused its discretion in ordering Carole to pay one-third of all college expеnses.
Amount and Abatement of Child Support
The court calculated the amount of Carole's support based upon a verified statement of the amount of her income made on a guideline worksheet. However, at trial, Carole submitted a revised worksheet and offered her testimony to establish the cost of maintaining a health insurance policy on the son. The parties testified and appeared to be in agreement that Carole's employment provided the opportunity for the most comprehensive policy. The wife testified that the cost to her to maintain insurance on the son was approximately $18.00, which when used to reduce her gross income as permitted by the guidelines, would cause the amount of support to be ordered to drop from $39.00 per week to $36.00 per week.
Although the guidelines contemplate that health care coverage be considered in determining a support order, Ind.Child Support Guideline 3(C)(8) permits but does not require thаt the cost of coverage be deducted from weekly gross income. Moreover, the commentary to subsection 3 warns that "it may be necessary for the obligor to contact his or her employer to obtain appropriate documentation of the additional cost for the [child's] coveragе before a deduction is computed." The wife offered no documentation to establish the proportion of her health insurance costs which were attributable to the son. Accordingly, we conclude it was in the court's discretion to adopt her original calculation under the guidelines.
However, we must agree with Carole that the order of support should be abated at least in part while the son is living on campus. The commentary to Ind.Child Supp.G. 3(E)(3) recognizes that duplication in living expenses may occur when education expenses are included in a separate order and consequently, support paid to the custodial parent should be reduced or eliminated, at least while the student is away from the household and at school. In re the Marriage of Tearman (1993), Ind.App.,
Exclusion of Husband's Remainder Interest in Real Estate
In distributing the parties' marital property, the trial court excluded from consideration and distribution a future interest Roger possesses by virtuе of the will of his grandfather. Roger's grandfather devised the real estate, presently valued at approximately $350,000.00, first to his wife for life, then to their daughter, Roger's mother, for life and then to "her child or children, share and share alike, and to their heirs, per stirpes and not per capita, to have and to hold as *1372 their рroperty absolutely and forever." Carole insists that the trial court erred in exelud-ing Roger's interest from the marital pot.
The parties argue over whether or not Roger's remainder interest should be characterized as vested or contingent but the Indiana Supreme Court held in Loeb v. Loeb (1973),
Subsequent to the Supreme Court's decision in Loeb, the legislature added a definition of property for purposes of the dissolutiоn statutes which expressly states that all "assets" of the parties are property.
1
None theless, some interests in property are still considered too remote to be assets capable of division. Nee, e.g., Kirkman v. Kirkman (1990), Ind.,
Credit for Household Expenses Pending Dissolution _
As Carole acknowledges, Herron v. Herron (1983), Ind.App.,
Equal Division
The trial court determined that an equal division of the property would be just and reasonable, apparently finding that the evidence of disparate earning capacity did not rebut the statutory presumption. The wife presented evidence tending to show that she had contributed to the acquisition of the property by maintaining the household and caring for the children while Roger worked. Roger received a small inheritance during the twenty-seven year marriage and neither party dissipatеd or disposed of assets during the marriage. There seemed to be no dispute that Roger had a superior earning capacity and generally better economic cireum-stances at the time of the disposition of the property, although Carole had made arrangements to live rent free but share utilitiеs.
While these facts might support a different distribution, our focus is on what the trial court did, not on what it could have done. The trial court's discretion in the disposition of marital property is subject to the statutory presumption for equal distribution. Norton v. Norton (1991), Ind.App.,
The party challenging the trial court's property division must overcome a strong presumption that the court complied with the statute and considered the evidence on each of the statutory factors. DeHaan v. DeHaan (1991), Ind.App.,
An equal division of property does not constitute an abuse of discretion in this case. Cf. Euler v. Euler (1989), Ind.App.,
Credit for Child Support and Educational Expenses
Roger maintains that the trial court abused its discretion in denying him a credit for child support paid from August 8, 1992, through February 22, 1998, or a total of 26 weeks while the minor son was attending his first year of college, and for sums expended for the son's first year of school. The trial cоurt denied Roger any credit "because there were no specific outstanding orders to pay joint expenses of that nature." The record reflects that there was a provisional order, which incorporated the parties' agreement, that Roger would pay support at the rate of $136.00 per wеek and pay the son's expenses in applying to colleges. We have not discovered any order requiring Roger to pay the first-year college expenses. Roger did not seek a modification of the provisional order until February 22, 19983, the date of the first property distribution hearing.
An order for child support, established as part of a dissolution action, is intended to provide for the support and maintenance of the parties' minor children. Whitman v. Whitman (1980), Ind.App.,
Hence, an obligated parent will not be allowed eredit for payments not conforming to the support order. O'Neil v. O'Neil (1989), Ind.,
The evidence reflects that the father's overpayment of support accrued only to the benefit of the minor son as Carole put the money into a bank account and used it to pay for expenses incurred by the minor son. Moreover, as we indiсated above, the trial court's decision to credit Roger 100% for sums expended provisionally to maintain the family residence while the dissolution was pending means that Carole effectively maintained the family residence during this period by reducing her net worth. She therefore was not in any way benefitted by Roger's *1374 overрayment of support. The trial court properly denied Roger a credit against the marital assets for his overpayment of child support and educational expenses.
Judgment affirmed in part, reversed in part and remanded.
Notes
. The definition now specifically identifies three types of property interests which are included within the scope of the chapter, LC. 31-1-11.5-2; none of those explicitly identified interests are at issue in the present case.