In re the Paternity of Ember Mazzotti-Dill: Sherry Mazzotti v. Heath Dill (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), Feb 24 2016, 9:03 am

this Memorandum Decision shall not be

regarded as precedent or cited before any

court except for the purpose of establishing

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Jonathan M. Young B. Michael Macer

Law Office of Jonathan M. Young, P.C. Benjamin R. Aylsworth

Newburgh, Indiana Biesecker Dutkanych & Macer,

LLC

Evansville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In re the Paternity of February 24, 2016

Ember Mazzotti-Dill Court of Appeals Case No.

87A01-1506-JP-725

Appeal from the Warrick Superior

Sherry Mazzotti, Court

Appellant-Petitioner, The Honorable J. Zach Winsett,

Special Judge

v.

Trial Court Cause No.

87D02-1310-JP-224

Heath Dill,

Appellee-Respondent

Crone, Judge.

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Case Summary

[1] Sherry Mazzotti (“Mother”) appeals the trial court’s order establishing Heath

Dill’s (“Father”) paternity of Ember Mazzotti-Dill (“Child”) and post-

secondary education expenses for her. Mother argues that the trial court erred

by declining to require Father to pay child support retroactive to the date of

Child’s birth. Mother also argues that the trial court abused its discretion in

apportioning the parents’ obligation toward Child’s remaining college expenses

and ordering her to pay $6000 per year when she allegedly lacks income and

ability to earn wages sufficient to pay that amount.

[2] We conclude that the trial court did not abuse its discretion by declining to

order Father to pay retroactive child support. We also conclude that the trial

court’s finding regarding Mother’s ability to pay is not clearly erroneous and

supports its decision. Therefore, we affirm.

Facts and Procedural History

[3] The facts most favorable to the judgment show that on December 26, 1995,

Child was born. Father acknowledged paternity and signed the paternity

affidavit.

[4] At the time of Child’s birth, Mother and Father were living with Child’s

grandmother. In April 1996, Father moved out. However, he and Mother had

an “off and on relationship,” and Father sporadically lived at grandmother’s

home until November 1999, when he and Mother ended their relationship. Tr.

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at 66. Between 1995 and November 1999, Father’s visitation with Child was

sporadic. During this period, Father worked at Barnes and Noble Cafe and at

St. Mary’s Health. He also attended one full-time semester at University of

Southern Indiana (“USI”). Father’s earnings ranged from approximately $6760

in 1996 to $17,930 in 1999. Father obtained health insurance for Child

whenever it was available through his employer. Between 1998 and 2000,

Mother worked as a part-time waitress.

[5] In 2000, Father got married. He began to have regular weekend visitation with

Child. In June or July of that year, he voluntarily began to pay Mother child

support in the amount of $120 every four weeks. In 2001 and 2002, Father

worked at St. Elizabeth Ann Seton Hospital. In 2002, Father began working for

the Town of Newburgh. Between 2000 and 2005, Father made about $20,000 a

year. In 2006, Father made about $24,000 a year.

[6] Mother and Child continued to reside with grandmother during Child’s

elementary school years. Grandmother was very active in Child’s life.

Grandmother usually took Child to school and prepared her meals. When

Child needed or wanted something, she turned to her grandmother more often

than Mother, although “sometimes” she turned to Mother. Id. at 192. Child

lived with grandmother through fifth grade.

[7] In 2006, Mother moved out of grandmother’s home and began living with

Stephen Wargel. A couple months later, Child moved in with Mother and

Wargel. However, Child “never actually lived [with Mother and Wargel]

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completely.” Id. at 192-93. Child still spent most of her time at grandmother’s

and “just slept at [Mother’s] house.” Id. at 193. From 2007 to 2009, Mother

worked parttime at her father’s dental lab. Mother gave birth to another child

in 2009. Since 2009, she has been a stay-at-home mom, and she has continued

to reside with Wargel.

[8] In 2007, Father earned approximately $31,000. In 2008, he was promoted and

made about $41,000. Father then voluntarily increased the amount of child

support to $150 every four weeks. “There were a handful of times over the

years” when Father asked Mother if there was any extra help he could give her.

Id. at 71. Mother always replied that the amount of child support that he

provided was fine. At no time did Mother tell Father that the child support he

was providing was not enough or that she needed more child support. Id. at 72.

[9] In 2009, Father made about $48,990. In 2010, he made $52,630. During this

time, Father continued to provide child support of $150 every four weeks. He

never increased child support. In 2010, Father divorced. By that time, he had

two additional children. In 2011, Father made $42,190. In 2012, he made

$44,040. At some point, Father remarried.

[10] In February 2013, when Child was a high school junior, she went to live with

Father and his wife, Margaret Dill. In March 2013, Father stopped paying

child support. In 2013, Father made about $41,170. At the beginning of the

summer, Child went to live with her grandmother. In November 2013, Mother

filed a paternity action against Father and a petition to establish post-secondary

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education expenses. In December 2013, after Child turned 18, she went to live

with Father, and she remained with him until the end of the summer in 2014.

In January 2014, Father filed a petition for child support and education support.

[11] Child applied and was admitted to Butler University and USI. Child wishes to

become a teacher. Child decided to attend Butler. The cost to attend Butler is

about $48,587 per year, but after Child’s scholarships, grants, and other

financial aid is applied, the remaining out-of-pocket cost is $24,387. The cost to

attend USI is about $18,000 per year. Mother did not want Child to attend

Butler because Mother did not believe that an expensive private school justifies

a teacher’s salary and she does not have the ability to pay for Child to attend a

private school. Father offered to pay $7000 a year toward Child’s college

expenses. Child began her first year at Butler in the fall of 2014. Father took

out a Direct Parent Plus Loan in the amount of $26,574. Mother did not

contribute.

[12] In June 2015, following a hearing on both parties’ petitions, the trial court

entered its order establishing paternity and for post-secondary education

expenses (“Order”). Appellant’s App. at 9-10. In its Order, the trial court

established Father’s paternity and found that neither party owed the other a

child support arrearage. As for post-secondary education expenses, the trial

court found that Child has the aptitude and ability to succeed in post-secondary

education. The trial court determined that Mother and Father should

contribute no more than $6000 per year toward Child’s college expenses. The

trial court “based its order regarding parental contribution amounts on the

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[USI] cost of $18,000, with each the Mother, Father, and [Child] being

responsible for 1/3 of the cost of attendance, beginning with the 2015-2016

school year.” Id. at 10. In addition, the trial court ordered Father to maintain

Child on his health insurance plan.

[13] The trial court attached two additional pages to its Order. The first attachment

is an explanation, which begins as follows: “The court is not issuing Findings of

Fact and Conclusions of Law but will explain some of the reasons for the

court’s ruling in this matter.” Id. at 12. The second attachment is a Post-

Secondary Education Worksheet (“PSEW”) completed by the trial court. The

explanation states that Father’s share of the parents’ total weekly adjusted

income is 72% and Mother’s is 28%. It further states that the trial court used

the cost of attending USI in setting Mother’s and Father’s contribution at no

more than $6000 per year for Child’s remaining years. The explanation shows

that based on what each parent contributed toward Child’s first year and on

each parent’s $6000 annual contribution, Father’s total contribution to Child’s

college expenses will be $47,574 and Mother’s will be $21,000. 1 The

explanation concludes that the total parental post-secondary responsibility is

$68,574 with Father contributing 69% and Mother contributing 31%. The

explanation provides that the “court considers that the Mother is voluntarily

unemployed and has been so for the vast majority of her adult life.” Id. The

1

The amounts are different because Father contributed $26,574 to Child’s first year of college while Mother

contributed nothing. Also, these amounts are based on four and a half semesters of college.

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explanation also states that “Mother is able to pay, or cause to be paid, the

amount ordered by the court” because she presented an extensive list of all the

things she had provided for Child in one of Father’s interrogatories. Id.

[14] The PSEW differs from the trial court’s explanation in certain respects. The

PSEW shows that Father’s share of total weekly adjusted income is 72.28% and

Mother’s is 27.72%. Total education costs are based on the cost to attend

Butler, not USI. The PSEW provides that Child’s total yearly education cost is

$48,587, and the parents’ total obligation of that is $24,387. Father’s share of

$24,387 is 72.28%, or $17,626.92, and Mother’s share is 27%, or $6760.08.

Mother appeals.

Discussion and Decision

Section 1 – The trial court did not abuse its discretion in

finding that Father did not owe child support retroactive to

Child’s birth.

[15] Mother argues that the trial court abused its discretion by declining to require

Father to pay child support retroactive to the date of Child’s birth. When

dealing with family law matters, appellate review is conducted with “‘a

preference for granting latitude and deference to our trial judges.’” Kicken v.

Kicken, 798 N.E.2d 529, 532 (Ind. Ct. App. 2003) (quoting In re Marriage of

Richardson, 622 N.E.2d 178, 178 (Ind. 1993)).

A trial court’s decision regarding child support will be upheld

unless the trial court has abused its discretion. A trial court

abuses its discretion when its decision is clearly against the logic

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and the effect of the facts and circumstances before the court or if

the court has misinterpreted the law.

Sexton v. Sedlak, 946 N.E.2d 1177, 1183 (Ind. Ct. App. 2011), trans. denied.

[16] In a paternity action, the initial child support order must include the period

dating from the filing of the paternity action and may, at the trial court’s

discretion, include the period dating from the birth of the child. Ind. Code § 31-

14-11-5. The trial court may order either parent to pay any amount reasonable

for support of a child, after considering all relevant factors, including

(1) the financial resources of the custodial parent;

(2) the standard of living the child would have enjoyed if:

(A) the marriage had not been dissolved;

(B) the separation had not been ordered; or

(C) in the case of a paternity action, the parents had been

married and remained married to each other;

(3) the physical or mental condition of the child and the child’s

educational needs.

Ind. Code §§ 31-14-11-2.3; 31-16-6-1(a).

[17] Mother likens this case to In re McGuire-Byers, 892 N.E.2d 187 (Ind. Ct. App.

2008), trans. denied, in which this Court held that the trial court did not abuse its

discretion by ordering the father to pay child support retroactive to the child’s

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birth. Id. at 192. There, the child was born in 1987 and filed a petition for

paternity in 2006. The trial court found that the father was aware of the child’s

birth and “then purposefully disappeared and made himself impossible for

mother to locate,” and the mother bore “the entire burden” of supporting the

child. Id. at 191. The trial court issued a child support order that was

retroactive to the date of the child’s birth, and the father’s arrearage amounted

to $118,560. On appeal, the father claimed that the trial court failed to consider

his financial resources and the hardship that the arrearage would place on his

four other young children. The McGuire-Byers court was unpersuaded by the

father’s arguments and concluded, “Given that [the father] was aware that he

was [the child’s] father from the time of his birth and knowingly avoided his

responsibility to support him, it was within the trial court’s discretion to order

retroactive child support.” Id. at 192.

[18] McGuire-Byers is distinguishable in two important respects. There, the father

purposefully avoided taking any responsibility for financially supporting the

child, and the trial court in its discretion ordered child support retroactive to the

child’s date of birth. Here, in contrast, Father voluntarily paid child support

from 2000 to March 2013, and the trial court in its discretion decided that

retroactive child support to the date of Child’s birth was not appropriate under

the circumstances. Secondly, McGuire-Byers’ holding that it wasn’t an abuse of

discretion to order retroactive support payments does not mean that it is an

abuse of discretion to deny it.

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[19] Nevertheless, Mother contends that Father paid only $17,740 in child support

over the years, and she alleges that he would have been required to pay $72,280

under the Indiana Child Support Guidelines. She argues that Father’s

contributions were wholly inadequate, that he merely paid what he felt that his

budget would allow, and that he must have known that he should have been

paying more. She also asserts that she “deserves recognition for devoting her

time and her life to her daughter.” Appellant’s Reply Br. at 3.

[20] The trial court heard evidence regarding each parent’s earnings over the course

of Child’s life, how much child support Father paid, that Mother and Child

lived with grandmother through Child’s fifth-grade year, and that grandmother

provided significant assistance in raising Child. In addition, Father testified

that he sometimes asked Mother whether she needed more child support and

she replied that the amount that he was providing was fine. Accordingly, we

cannot say that the trial court abused its discretion in declining to order Father

to pay retroactive child support.

Section 2 – The trial court did not abuse its discretion by

ordering Mother to contribute $6000 per year toward Child’s

remaining college expenses.

[21] “An appellate court reviews a trial court’s decision to order the payment of

post-secondary educational expenses for an abuse of discretion.” Hirsch v.

Oliver, 970 N.E.2d 651, 662 (Ind. 2012) (citing Carr v. Carr, 600 N.E.2d 943, 945

(Ind. 1992)). The trial court abuses its discretion when its decision is “against

the logic and effect of the facts and circumstances” before it. Id. In determining

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whether the trial court abused its discretion, we do not reweigh the evidence or

judge the credibility of witnesses, and we consider only the evidence and

reasonable inferences favorable to the judgment. Lovold v. Ellis, 988 N.E.2d

1144, 1150 (Ind. Ct. App. 2013).

[22] Although the trial court stated that it did not issue findings of fact and

conclusions of law, it provided limited findings in its explanation attached to its

Order. ‘“When the trial court enters such findings sua sponte, the specific

findings control only as to the issues they cover, while a general judgment

standard applies to any issue upon which the court has not found.’” Scoleri v.

Scoleri, 766 N.E.2d 1211, 1215 (Ind. Ct. App. 2002) (quoting Nelson v.

Marchand, 691 N.E.2d 1264, 1267 (Ind. Ct. App. 1998)). “For findings of fact

to be clearly erroneous, the record must lack probative evidence or reasonable

inferences from the evidence to support them.” Id.

Under Indiana law, there is no absolute legal duty on the part of

parents to provide a college education for their children.

However, the statutory authorization for the divorce court to

order either or both parents to pay sums toward their child’s

college education constitutes a reasonable manner in which to

enforce the expectation that most families would encourage their

qualified children to pursue a college education consistent with

individual family values. In determining whether to order either

or both parents to pay sums toward their child’s college

education, the court must consider whether and to what extent

the parents, if still married, would have contributed to the child’s

college expenses.

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Hinesley-Petry v. Petry, 894 N.E.2d 277, 280-81 (Ind. Ct. App. 2008) (quoting

McKay v. McKay, 644 N.E.2d 164, 166 (Ind. Ct. App. 1994)), trans. denied

(2009).

[23] “[C]ollege expenses are in the nature of child support.” Panfil v. Fell, 19 N.E.3d

772, 778 (Ind. Ct. App. 2014), trans. denied (2015). “[A]lthough a trial court has

broad discretion to tailor a child support award in light of the circumstances

before it, ‘this discretion must be exercised within the methodological

framework established by the guidelines.’” Quinn v. Threlkel, 858 N.E.2d 665,

670 (Ind. Ct. App. 2006) (quoting McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1251-

52 (Ind. 1994)). “This principle applies with equal force to orders regarding

post-secondary education expenses.” Id. Indiana Child Support Guideline 8(b)

provides that “the court should consider post-secondary education to be a group

effort, and weigh the ability of each parent to contribute to payment of the

expense, as well as the ability of the student to pay a portion of the expense.”

Absent an evidentiary justification in the record and a finding by the trial court

that a proportional obligation would be unfair, the Child Support Guidelines

require that apportionment of educational expenses between the parents be

roughly proportional to their share of income. Carr, 600 N.E.2d at 946.

[24] Indiana Code Section 31-16-6-2(a) provides that a child support order or an

educational support order may include

(1) amounts for the child’s education in elementary and

secondary schools and at postsecondary educational institutions,

taking into account:

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(A) the child’s aptitude and ability;

(B) the child’s reasonable ability to contribute to

educational expenses through:

(i) work;

(ii) obtaining loans; and

(iii) obtaining other sources of financial aid

reasonably available to the child and each parent;

and

(C) the ability of each parent to meet these expenses.

[25] Here, there is no dispute that Child has the aptitude and ability to attend

college. Mother asserts that the trial court abused its discretion in calculating

the parents’ share of total weekly adjusted income and in apportioning their

college contribution. She also challenges its finding that she has the means to

pay $6000 per year.

[26] Regarding total weekly adjusted income, we observe that the PSEW shows that

Father’s share is 72.28% and Mother’s share is 27.72%. Mother contends that

the trial court did not provide the underlying income figures that it used to

calculate those percentages and that her Child Support Obligation Worksheet

indicates that Father’s share is 77% and her share is 23%. Our own estimates

are not far off the trial court’s numbers. In 2013, Father earned $41,172, or

$762 per week. Ex. S; Appellant’s Br. at 5. Even though Mother has chosen to

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be a stay-at-home mother, she acknowledged that she is physically and mentally

able to be employed and “requested that the trial court figure her income at the

federal minimum wage.” Appellant’s Br. at 4. The current minimum wage is

$7.25 per hour, which comes to $290 per week based on a forty-hour work

week. Based on Father’s weekly income of $762 and Mother’s weekly income

of $290, Father’s share of the total weekly income is 73.20% and Mother’s is

26.8%. This is roughly equivalent to the trial court’s figures, and therefore we

find no abuse of discretion here. See Eppler v. Eppler, 837 N.E.2d 167, 177 (Ind.

Ct. App. 2005) (“While the statutes and our guidelines do not require

apportionment based on precise parity, they do require rough proportionality.”)

(quoting Carr, 600 N.E.2d at 946).

[27] Mother next argues that the trial court abused its discretion in apportioning the

parents’ college contribution. Specifically, she assert she should not be required

to pay 50% of the parents’ annual obligation of $12,000 for Child’s remaining

years. Mother ignores that she did not contribute anything for Child’s first year

while Father contributed $26,574 and that the trial court considered these

amounts when calculating the parents’ share of their obligation toward Child’s

total college cost. When these amounts are considered, the total parental

obligation for all of Child’s years at Butler is $68,574. Father’s share of that is

69% and Mother’s is 31%. That is roughly equivalent to the parties’ share of

total weekly income. We find no abuse of discretion here.

[28] As for Mother’s ability to pay $6000 annually for Child’s remaining college

years, the trial court made some findings in that regard:

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The court considers that the Mother is voluntarily unemployed

and has been so for the vast majority of her adult life. The

Mother agreed that she is physically and mentally able to be

employed if she would so choose. Even though the Mother has

never earned any regular income, she otherwise testified that she

always provided financially for [Child], and for her subsequent

child. In addition, the court notes, in support of its finding that

Mother is able to pay, or cause to be paid, the amount ordered by

the court for post-secondary expenses, portions of Mother’s

answer to Interrogatory No. 16, which was entered into evidence

as Father’s Exhibit U: …I paid almost every school fee: book

fees, lunch fees, field trip fees, sports enrollment fees and

equipment fees (basketball, dancing and ballet, lacrosse, etc.),

activity fees, school supplies, backpacks, costumes, uniforms,

SAT fees, ACT fees, college application fees, gas, school clothes,

winter coats, yearbook fees, school picture fees, etc. I made sure

she had access to all the tools needed for her education:

computers, laptops, printers, scanners, copiers, software, flash

drives, digital cameras, cell phones, an automobile, etc….We

took her to museums, zoos, nature reserves, aquariums, historic

sites, 4-H fairs, and other areas for learning.”

Appellant’s App. at 12. We conclude that the trial court’s finding is not clearly

erroneous. Therefore, we cannot say that the trial court abused its discretion in

requiring Mother to pay $6000 per year toward Child’s remaining college

expenses.

[29] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

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