In Re the Marriage of: Bretty Myers v. Lisa Myers (Phifer) (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be FILED

regarded as precedent or cited before any

Aug 02 2017, 8:04 am

court except for the purpose of establishing

the defense of res judicata, collateral CLERK

Indiana Supreme Court

estoppel, or the law of the case. Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE

Darlene R. Seymour Cynthia A. Marcus

Ciyou & Dixon, PC Marcus Law Firm, LLC

Indianapolis, Indiana Carmel, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In Re the Marriage of: August 2, 2017

Brett Myers, Court of Appeals Case No.

29A02-1701-DR-77

Appellant-Petitioner,

Appeal from the Hamilton

v. Superior Court

The Honorable Daniel Pfleging,

Lisa Myers (Phifer), Judge

The Honorable William

Appellee-Respondent.

Greenaway, Magistrate

Trial Court Cause No.

29D02-0302-DR-82

Riley, Judge.

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STATEMENT OF THE CASE

[1] Appellant-Petitioner, Brett Myers (Father), appeals the trial court’s Order for

payment of post-secondary educational expenses and the award of attorney’s

fees to Appellee-Respondent, Lisa Myers (Mother).

[2] We reverse and remand.

ISSUES

[3] Father raises two issues for our review, which we restate as:

(1) Whether the trial court properly calculated Father’s share of the child’s

incurred costs to attend college; and

(2) Whether the trial court abused its discretion by ordering Father to pay

Mother’s attorney’s fees in the amount of $3,885.

FACTS AND PROCEDURAL HISTORY

[4] Father and Mother were married on October 21, 1989. During the marriage,

two children were born: Evan Myers (Evan), 1 born on May 19, 1992, and

Ashley Myers (Ashley), born on July 17, 1995. Father and Mother separated

on February 5, 2003. On May 23, 2003, the trial court entered its decree of

dissolution of marriage between Father and Mother. Mother was awarded

primary physical custody of the children, with Father receiving parenting time

1

Evan has been emancipated and is not attending college. This appeal only relates to the college expenses

incurred by Ashley.

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in accordance with the Indiana Parenting Time Guidelines and paying child

support. Father was ordered to maintain the children’s health and dental

insurance, with Mother paying the first $1,000 of uninsured health care costs

incurred for the children’s benefit per calendar year. Any amounts in excess

thereof would be equally shared between Father and Mother. On November

22, 2010, after a hearing on Father’s verified petition for modification of child

custody, parenting time, child support, and other related issues, the trial court

entered an order, determining, in pertinent part, that

In regards to college expenses for the minor children, that each

child shall be responsible for accumulating whatever assistance

they may be able to receive, and any balance of college expenses

for either of the children shall be split evenly and equal between

the parties.

(Appellant’s App. Vol. II, p. 29).

[5] On July 25, 2014, the trial court “deemed” Ashley “emancipated for purposes

of child support only as of July 17, 2014.” (Appellant’s App. Vol. II, p. 30).

The order specified that child support would be terminated but “all other orders

in regard to this case and the child of the parties [shall] remain in full force and

effect[.]” (Appellant’s App. Vol. II, p. 30). In August of 2014, Ashley enrolled

at Indiana University Bloomington (IUB). She lived in the dormitories during

the school year and with Mother in the summer of 2015. Ashley returned to

IUB for her sophomore and junior years in August 2015 and 2016, while living

in an apartment near campus.

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[6] On February 29, 2016, Father filed his verified petition for rule to show cause,

related to uninsured medical expenses incurred on behalf of Ashley, as well as

Mother’s refusal to allow Father to claim Ashley for tax purposes. On July 18,

2016, Mother filed a verified motion for contempt, relating to Father’s share of

Ashley’s college expenses, and on November 4, 2016, filed a motion for

reimbursement of college expenses.

[7] After a hearing, the trial court issued its Order, denying Father’s petition and

concluding, with respect to the post-secondary educational expenses:

14. Father testified that he had received no documentation from

either Mother or Ashley as to Ashley’s post-secondary

educational expenses. Father appeared to be indulging in the

bliss of ignorance and had made no realistic effort to determine

any of this information. Father testified that he had “briefly”

looked at the college expense bills provided during discovery, but

did not pay then because “they were discovery.”

15 The [c]ourt will find that Ashley’s uninsured medical expenses

should be considered as part of her post-secondary educational

expenses and be divided equally between the parties.

16. The Agreement specifically states how post-secondary

educational expenses are to be paid.

17. Father testified that he had paid $2,000.00 for a summer

class at IU. Given Father’s uncertainty as to this actual amount,

the [c]ourt is unable to find what he actually paid.

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18. Father shall reimburse Mother $18,067.61 for his portion of

Ashley’s educational expenses. This payment shall be made

within 180 days or reduced to judgment.

19. Father shall reimburse Mother $3,885.00 for the attorney fees

that she has incurred in defending what appears to be a generally

baseless action and in securing reimbursement of Ashley’s post-

secondary expenses.

(Appellant’s App. Vol. II, p. 13) (internal footnote omitted).

[8] Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Post-Secondary Educational Expenses

[9] Father contests the trial court’s treatment of post-secondary educational

expenses. While Father does not challenge Ashley’s aptitude for post-

secondary education or the apportionment of the costs thereof, Father takes

umbrage with the calculation of and the inclusion of certain expenses. When

we review a challenge to an order apportioning college expenses, we apply a

clearly erroneous standard. Carson v. Carson, 875 N.E.2d 484, 485-86 (Ind. Ct.

App. 2007). However, where, as here, the decision to order the payment of

extraordinary educational expenses is challenged, our review should be based

on an abuse of discretion standard. Snow v. Rincker, 823 N.E.2d 1234, 1237

(Ind. Ct. App. 2005), trans. denied. As a result, “[r]eversal is appropriate only if

we find the trial court’s decision is against the logic and effect of the facts and

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circumstances before the court or the reasonable inferences drawn therefrom.”

Id.

[10] Under Indiana law, there is no absolute duty on the part of parents to provide a

college education for their children. Hinesley-Petry v. Petry, 894 N.E.2d 277, 280

(Ind. Ct. App. 2008), trans. denied. 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. Id. at 280-

81. 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 their child’s

college expenses. Id. at 281.

[11] The purpose of an educational support order is the welfare of the child and not

the punishment of the custodial parent. Id. It must be fair, not confiscatory in

amount and intended to provide a reasonable allowance for support,

considering the property, income, and earning capacity of the non-custodial

parent, and the station in life of the family. Id. It is within the discretion of the

trial court to determine under all the circumstances what is just and equitable to

the child and the noncustodial parent. Id.

[12] We first note that a child support order and an educational expense order are

separate and distinct. Knisely v. Forte, 875 N.E.2d 335, 340 (Ind. Ct. App.

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2007), reh’g denied. Indiana Code section 31-16-6-2 governs educational

support, even if the child is emancipated, and provides that an educational

support order may include amounts for the child’s education in institutions of

higher education. The statute requires the trial court to consider the child’s

aptitude and ability; the child’s reasonable ability to contribute to educational

expenses; and the ability of the parents to pay the expenses. I.C. § 31-16-6-

2(a)(1). It is discretionary with the court to award post-secondary educational

expenses and in what amount. In making such a decision, the court should

consider post-secondary education to be a group effort, and weigh the ability of

each parent to contribute to the payment of the expense, as well as the ability of

the student to pay a portion of the expense. Ind. Child Support Guideline 8(b).

[13] Here, the parties’ obligation to pay post-secondary educational expenses was

instituted by the trial court in its order issued on November 22, 2010, as

follows:

In regards to college expenses for the minor children, that each

child shall be responsible for accumulating whatever assistance

they may be able to receive, and any balance of college expenses

for either of the children shall be split evenly and equal between

the parties.

(Appellant’s App. Vol. II, p. 29). In other words, after taking into consideration

Ashley’s scholarships, grants, student loans, summer and school year

employment and other cost-reducing programs available to her, the remaining

costs are to be shared equally between Father and Mother. See Gilbert v. Gilbert,

777 N.E.2d 785, 794 (Ind. Ct. App. 2002). Although the order did not include

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an obligation for Ashley to maintain a certain minimum level of academic

performance, there is no requirement for a trial court to incorporate one in each

case. See In re Marriage of Blanford, 937 N.E.2d 356, 365 (Ind. Ct. App. 2010)

(“[W]hether a minimum grade point average is appropriate, and, if so, the

precise level . . . should be determined on a case-by-case basis.”).

[14] While the trial court crafted a provision for the payment of post-secondary

educational costs by the child and the parents, the court omitted to specify what

it considered appropriate educational expenses. In such case, we turn to the

Indiana Child Support Guidelines (Guidelines) for guidance. Guideline 8(b)

states that “[a] determination of what constitutes educational expenses will be

necessary and will generally include tuition, books, lab fees, course related

supplies, and student activity fees. Room and Board may be included when the

child does not reside with either parent.” “A post-secondary educational order

may include medical, dental, and optical insurance costs, as well as other health

care costs, where the court finds such costs appropriate.” Cubel v. Cubel, 876

N.E.2d 1117, 1120-21 (Ind. 2007). Other appropriate extraordinary educational

expenses that have been taken into account by courts in the past are

transportation, car insurance, clothing, entertainment and incidental expenses.

Snow, 823 N.E.2d at 1240.

[15] In fashioning its Order and calculating Father’s share of post-secondary

educational expenses, the trial court relied solely on Mother’s Exhibit G, a print

out of a generic bank statement representing charges incurred by her, without

any corresponding receipts or invoices that would connect the amount with the

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specific educational charges paid. For example, several references are made to

different amounts paid to Amazon Marketplace, with Mother’s annotation

denoting ‘books.’ However, without the underlying invoice or order receipt

reflecting the book purchases, an Amazon Marketplace payment can cover a

multitude of varying purchases, educational or non-educational related.

Likewise, several charges reflect payments for auto insurance, license plates, car

repair, and tires, without the trial court first establishing that it was “necessary”

for Ashley to have a vehicle at college. Borth v. Borth, 806 N.E.2d 866, 871-72

(Ind. Ct. App. 2004) (We concluded that the trial court did not abuse its

discretion by including the cost of a vehicle in its calculation of college expenses

as it was determined necessary to have a vehicle at school because the child

lived off campus). Also, Mother requested reimbursement for Ashley’s

bodybuilding expenses. She clarified this expense during the hearing, noting

that Ashley is “a competitive weight lifter[,]” which is something she “chooses

to do outside of college,” not as a student and without competing on a college

team. (Transcript p. 58). Mother failed to connect this expense with Ashley’s

college education.

[16] Turning to Mother’s request for reimbursement of Ashley’s residential costs, we

note that Ashley lived in the dormitories during her freshman year in college.

While it is undeniable that dormitories’ costs are educational expenses, Mother

did not submit any evidence as to the amount she paid. Similarly, although

Mother is requesting reimbursement of the rental payments she made during

Ashley’s sophomore year, Mother’s only evidence consisted of a spreadsheet

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composed of amounts purportedly paid as rental payments on Ashley’s behalf.

The evidence failed to contain any lease agreement, the rental amount, or term

of the lease.

[17] In addition to these evidentiary omissions, we are mostly concerned by the

complete lack of evidence of Ashley’s tuition costs at IUB and any indication

that Ashley’s scholarships, grants, student loans, summer and school year

employment were taken into account. Mother testified that Ashley “received

money for grants for doing well on her SATs. She got grant money for that.

She got grant money for a work-study program. . . .[S]he got a lot of grant

money.” (Tr. p. 61). Mother admitted that she did not present a copy of

Ashley’s financial assistance. Additionally, Mother stated that even though

Ashley contributes by working, Mother does not know how much Ashley

makes, nor has she given Father any confirmation “as to what Ashley’s

contributions to her expenses were[.]” (Tr. p. 66). Although Mother made

vague statements that she had provided some information to Father, she also

admitted not to have that same information available during the hearing and

she conceded that she had never asked Father to pay his share of the expenses.

[18] In sum, Mother represented that Ashley’s college expenses amounted to $

36,135.23, which—according to Mother’s testimony—included, “[e]verything

that is incurred for her while she is in college” and everything “that she has to

have[.]” (Tr. pp. 57-58). Of this total amount, the trial court ordered Father to

pay $18,067.61 towards his share of Ashley’s post-secondary educational

expenses. Because there is a lack of evidence establishing the underpinnings of

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the trial court’s numbers, we find that the trial court’s order is erroneous. We

reverse the trial court’s order with respect to its calculation of the post-

secondary educational costs and remand to the trial court with instruction to

conduct an evidentiary hearing and to enter findings regarding the amount and

allocation of Ashley’s college expenses in accordance with the guidelines of this

opinion.

II. Award of Attorney’s Fees

[19] Father contends that the trial court abused its discretion when it ordered him to

pay $3,885 in Mother’s attorney’s fees. In post-dissolution proceedings, the

trial court may order a party to pay a reasonable amount for attorney’s fees. I.C

§ 31-16-11-1; Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind. Ct. App. 2012), trans.

denied. The trial court has broad discretion in awarding attorney’s fees. Id.

Reversal is proper only where the trial court’s award is clearly against the logic

and effect of the facts and circumstances before the court. Id. In assessing

attorney’s fees, the trial court may consider such factors as the resources of the

parties, the relative earning ability of the parties, and other factors bearing on

the reasonableness of the award. Id. In addition, any misconduct on the part of

a party that directly results in the other party incurring additional fees may be

taken into consideration. Id. “Further, the trial court need not give its reasons

for its decision to award attorney’s fees.” Id. (quoting Thompson v. Thompson,

811 N.E.2d 905, 928 (Ind. Ct. App. 2004)), trans. denied.

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[20] The basis for the award of attorney’s fees is Mother’s defense of “a generally

baseless action” pursued by Father against Mother and Mother’s claim for

“reimbursement of Ashley’s post-secondary expenses.” (Appellant’s App. Vol.

II, p. 13). It appears from the Order that the trial court concluded that Father

engaged in misconduct by challenging Mother’s request for payment of post-

secondary educational expenses. However, as we pointed out, Father’s

challenge is not entirely without merit. The record reflects that Mother did not

always submit all documentation to Father, and Mother admitted that she did

not request Father to “pay his 50% portion.” (Tr. p. 64).

[21] With respect to Father’s pursuit of a “baseless action” against Mother, we note

that Father’s Verified Motion for Rule to Show Cause was based on Father’s

request for payment of uninsured medical expenses incurred on behalf of

Ashley and Mother’s refusal to allow Father to claim Ashley as a dependent for

tax purposes. In the original decree of dissolution of marriage, Mother was

ordered to pay the first $1,000 of the children’s uninsured medical health care

costs. When the trial court issued its order, emancipating Ashley, on July 25,

2014, the court specified that the emancipation was “for purposes of child

support only[.]” (Appellant’s App. Vol. II, p. 30) (emphasis added). The order

further referenced that child support would be terminated but “all other orders

in regard to this case and the child of the parties [shall] remain in full force and

effect[.]” (Appellant’s App. Vol. II, p. 30). Based on this order, Father, in good

faith, could have concluded that the provision concerning the uninsured

medical expenses was still in effect. With respect to the tax exemption, the

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dissolution decree provided that each party would take one child as an

exemption. As a result, Father listed Evan as a tax exemption and Mother

listed Ashley. However, the agreement is silent as to what happens when only

one child is eligible to be listed as a tax exemption. Therefore, as the agreement

is silent, Father could reasonably make the request to take Ashley as a tax

exemption when Evan became ineligible. Accordingly, we conclude that the

trial court abused its discretion in awarding Mother attorney’s fees and we

reverse the trial court’s order.

CONCLUSION

[22] Based on the foregoing, we conclude that the trial court abused its discretion

when calculating Father’s share of the post-secondary educational costs; and

the trial court abused its discretion in awarding Mother attorney’s fees.

[23] Reversed and remanded for further proceedings in accordance with this

opinion.

[24] Najam, J. and Bradford, J. concur

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