Annette (Oliver) Hirsch v. Roger Lee Oliver

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Trenna S. Parker Eric J. Benner

Noblesville, Indiana Laurie D. Johnson

Noblesville, Indiana

______________________________________________________________________________

In the FILED

Indiana Supreme Court Jun 29 2012, 2:35 pm

_________________________________ CLERK

of the supreme court,

court of appeals and

tax court

No. 29S02-1109-DR-530

ANNETTE (OLIVER) HIRSCH,

Appellant (Petitioner below),

v.

ROGER LEE OLIVER,

Appellee (Respondent below).

_________________________________

Appeal from the Hamilton Superior Court, No. 29D02-0411-DR-988

The Honorable Daniel J. Pfleging, Judge

The Honorable William P. Greenaway, Magistrate

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 29A02-1004-DR-429

_________________________________

June 29, 2012

David, Justice.

In this case, after two hearings, the trial court issued a number of post-dissolution orders.

Relevant to this appeal are the trial court’s specific findings related to the emancipation of a child

and the requirement of a parent to contribute toward a child’s post-secondary educational

expenses. On appeal, a trial court’s orders should be afforded the appropriate level of deference,

as reflected in the applicable standard of review.

This opinion clarifies various aspects of the emancipation statute and also affirms the

majority of the trial court’s rulings on emancipation and post-secondary educational expenses.

Facts and Procedural History

Annette (Oliver) Hirsch (“Mother”) and Roger Lee Oliver (“Father”) were married in

1985 and divorced in 1994. They had three children during their marriage: Katherine in 1986;

Elizabeth in 1988; and Courtney in 1990. Over the years, following the dissolution, Mother and

Father have litigated various issues related to the children. The present case primarily deals with

Courtney, and to a lesser extent, Elizabeth.

On September 23, 2009, Father petitioned the trial court to emancipate Courtney. Mother

initially contested Courtney’s emancipation but later stipulated Courtney was emancipated no

later than December 10, 2009. Mother also sought contribution from Father for Courtney’s post-

secondary educational expenses. The trial court held evidentiary hearings on these, and other,

issues in October 2009 and February 2010.

Subsequently, in March 2010, the trial court issued an order that (1) declared Courtney

emancipated as of September 23, 2009; (2) declined to require Father to contribute toward

Courtney’s post-secondary educational expenses; (3) determined Father’s overpayment of child

support and ordered Mother to repay that amount; (4) held Father owed Mother nothing toward

Elizabeth and Courtney’s 2009 medical expenses; (5) ordered Mother to pay $5,000 in attorney’s

fees to Father; and (6) ordered Mother to pay Father’s current wife $227 in witness-expense fees.

Mother appealed, raising arguments related to the trial court’s six rulings described

above. A majority of the Court of Appeals reversed and remanded on all of the issues. Hirsch v.

Oliver, 944 N.E.2d 956 (Ind. Ct. App. 2011). Judge Baker dissented on two points: the date of

Courtney’s emancipation and Father’s obligation to contribute to Courtney’s post-secondary

educational expenses. Id. at 970–72 (Baker, J., concurring in part and dissenting in part).

We granted transfer to address issues related to Courtney’s emancipation and post-

secondary educational expenses. We summarily affirm the decision of the Court of Appeals on

the remaining issues. Ind. Appellate Rule 58(A)(2).

2

I. Emancipation

What constitutes emancipation is a question of law; whether emancipation has occurred is

a question of fact. Dunson v. Dunson, 769 N.E.2d 1120, 1123 (Ind. 2002). A party seeking

emancipation must establish it by competent evidence. Id. Indiana Code section 31-16-6-6

(Supp. 2010) deals with the termination of child support and emancipation.1 It provides as

follows:

(a) The duty to support a child under this chapter ceases when the child becomes

twenty-one (21) years of age unless any of the following conditions occurs:

(1) The child is emancipated before becoming twenty-one (21) years of

age. In this case the child support, except for the educational needs

outlined in section 2(a)(1) of this chapter, terminates at the time of

emancipation, although an order for educational needs may continue in

effect until further order of the court.

(2) The child is incapacitated. In this case the child support continues

during the incapacity or until further order of the court.

(3) The child:

(A) is at least eighteen (18) years of age;

(B) has not attended a secondary school or postsecondary

educational institution for the prior four (4) months and is not

enrolled in a secondary school or postsecondary educational

institution; and

(C) is or is capable of supporting himself or herself through

employment.

In this case the child support terminates upon the court’s finding that the

conditions prescribed in this subdivision exist. However, if the court finds that the

conditions set forth in clauses (A) through (C) are met but that the child is only

partially supporting or is capable of only partially supporting himself or herself,

the court may order that support be modified instead of terminated.

(b) For purposes of determining if a child is emancipated under subsection (a)(1),

if the court finds that the child:

(1) is on active duty in the United States armed services;

(2) has married; or

(3) is not under the care or control of:

1

We note that Indiana Code section 31-16-6-6 has been amended by Public Law 111-2012, and the

amendments take effect on July 1, 2012. The amendments change the automatic age of emancipation

from twenty-one to nineteen. See 2012 Ind. Legis. Serv. P.L. 111-2012 (West). The amendments,

however, do not affect our analysis in this case.

3

(A) either parent; or

(B) an individual or agency approved by the court;

the court shall find the child emancipated and terminate the child support.

This Court has stated that the purpose of the statute “is to require that parents provide

protection and support for the welfare of their children until the children reach the specified age

or no longer require such care and support.” Dunson, 769 N.E.2d at 1124.

In this case, Father filed a “Verified Petition for Emancipation” and requested that the

trial court “find the child of the parties, Courtney, emancipated for child support purposes” and

“terminate [Father’s] obligation to pay child support in this matter.” Father did not cite a

specific subsection of the relevant statute in his petition. The trial court’s findings on Father’s

request for Courtney’s emancipation likewise did not cite a particular subsection of Indiana Code

section 31-16-6-6. However, in determining that Courtney was emancipated as of September 23,

2009, the trial court used language that mostly tracked the requirements of subsection (a)(3).2

Specifically, the trial court referenced a requirement found only in subsection (a)(3)(B), by

concluding that Courtney had not “engaged in any post-high school educational pursuits in

2

The trial court’s findings related to Courtney’s emancipation were as follows:

Courtney Oliver graduated high school in the spring of 2009. She routinely was

employed during her Junior and Senior years of high school with the consent of [Mother],

the custodial parent in this matter. Courtney has not completed any post-high school

educational classes since her graduation from high school in the spring of 2009, although

she is currently enrolled in classes at Ivy Tech. It remains uncertain as to whether she

will finish those classes she is currently enrolled in. Courtney moved out of [Mother’s]

home and is currently co-habitating with her boyfriend. She moved out of her mother’s

home on or about December 10, 2009. [Mother] stipulated under oath that she agrees

that Courtney was emancipated for child support purposes as of December 10, 2009. The

Court, however, finds that since Courtney had graduated from high school and had not

been engaged in any post-high school educational pursuits in which she completed any

classes for more than four months subsequent to her graduation from high school, that

Courtney is emancipated effective the date of the filing of [Father’s] petition requesting

such emancipation on September 23, 2009. Subsequent to her graduation from high

school, Courtney worked at both L.A. Fitness and Big League Barbers, and had the

capacity to work at least two jobs to provide for her own support.

Besides the fact that the trial court’s findings above track the requirements of subsection (a)(3) of Indiana

Code section 31-16-6-6, we also note that subsections (a)(2), (b)(1), and (b)(2) are inapplicable to this

case, as Courtney is not alleged to be incapacitated, in the military, or married. Furthermore, subsection

(b)(3) would not support a finding of emancipation as of September 23, 2009, because Courtney was

living with Mother at that time and was most likely under her “care or control.”

4

which she completed any classes for more than four months.” Ultimately, the trial court found

Courtney was emancipated as of September 23, 2009, which is the date Father filed his petition.

At this point, we pause to address how various decisions have interpreted subsection

(a)(3)’s relation to the emancipation of a child. Importantly, the Court of Appeals touched on

that issue, stating that “subsection (a)(3) of this statute does not technically concern the

emancipation of a child, as opposed to termination of child support.” Hirsch, 944 N.E.2d at 962

n.4. Some prior decisions have also noted this.3 Other decisions, however, have classified

subsection (a)(3) differently, concluding that it is, in fact, a basis for a court to find

emancipation.4

On these opposing views, the Court of Appeals here stated, “this is largely a distinction

without a difference, where the only practical consequence of emancipation, as is the case here,

is termination of child support obligations.” Hirsch, 944 N.E.2d at 962 n.4. Although this may

be true here, it is prudent to articulate what (a)(3) covers to avoid confusion.

Subsection (a)(3) states that the duty to support an eighteen-year-old child terminates if

the child has not met certain educational requirements and the child is supporting himself or

herself through employment or is capable of doing so. Notably, subsection (a)(3) does not

mention that emancipation occurs in conjunction with the termination of child support. On the

other hand, if the eighteen-year-old child has met the stated educational requirements and is not

capable of supporting himself or herself, then the duty to support the child continues, despite the

3

See, e.g., Sexton v. Sedlak, 946 N.E.2d 1177, 1187 (Ind. Ct. App. 2011), trans. denied (“The real

question addressed by the trial court and argued by Father is not whether [Child] is emancipated, but

rather whether the requirements of Section 31-16-6-6(a)(3) for termination of child support are satisfied.”

(footnote omitted)); Carpenter v. Carpenter, 891 N.E.2d 587, 593 (Ind. Ct. App. 2008) (“Subsection (a)(3)

does not deal with the ‘emancipation’ of a child; it merely identifies circumstances under which our

legislature has determined a parent’s obligation to pay child support should terminate.”); Marshall v.

Marshall, 601 N.E.2d 9, 12 n.2 (Ind. Ct. App. 1992) (stating that the subsection “does not define

emancipation” but that “it terminates the parental obligation of support as a matter of law whether or not

the court enters a finding of emancipation”); Brancheau v. Weddle, 555 N.E.2d 1315, 1317 n.1 (Ind. Ct.

App. 1990).

4

See, e.g., Butrum v. Roman, 803 N.E.2d 1139, 1144 (Ind. Ct. App. 2004), trans. denied (“According to

[Indiana Code section 31-16-6-6], there are four ways to establish emancipation, specifically subsections

(a)(3), (b)(1), (b)(2), and (b)(3).”); Connell v. Welty, 725 N.E.2d 502, 505 (Ind. Ct. App. 2000) (stating

that “the party seeking to have a child declared emancipated prior to age twenty-one under the criteria of

I.C. § 31-16-6-6(a)(3) bears the burden of proving the capacity of self-support” (emphasis added)).

5

child having reached the age of majority. In that circumstance, the eighteen-year-old child

would not be considered fully emancipated: the dependent relationship between the parent and

child continues because the child is still in need of support from the parents.

Decisions that view subsection (a)(3) as not concerning emancipation fail to see that

emancipation must be a natural consequence of finding that the child has reached the age of

majority, has not fulfilled the stated educational requirements, and is capable of supporting

himself or herself. When an adult child fails to pursue secondary or post-secondary education as

defined in the statute and is also capable of supporting himself or herself, there is no reason for

the parents to be legally required to support the adult child.5 And we cannot envision a situation

where a trial court finds that the three requirements of (a)(3) are fulfilled but the child regardless

remains unemancipated. In essence, if under Indiana Code section 31-16-6-6(a)(3), a trial court

determines there is no longer an obligation of the parent to support the child, emancipation has

necessarily occurred because the child has reached the age of majority and is no longer under any

legal disability by virtue of being a minor. Accordingly, once a trial court finds that subsection

(a)(3)’s requirements have been met and child support terminates, emancipation occurs as a

matter of law.6

Here the Court of Appeals noted the correct standard for an appellate court reviewing a

trial court’s determination regarding the date of emancipation: “we will neither reweigh the

evidence nor assess the credibility of witnesses, and we will not set aside the finding of the trial

5

This is assuming that the child is not incapacitated. See I.C. § 31-16-6-6(a)(2).

6

This conclusion does not conflict with this Court’s decision in Dunson v. Dunson, 769 N.E.2d 1120

(Ind. 2002), which evaluated a different subsection of the emancipation statute. Dunson focused on

subsection (b)(3) of Indiana Code section 31-16-6-6, which states that a child is emancipated if the court

determines the child “is not under the care or control of either parent.” I.C. § 31-6-6-6(b)(3)(A). This

Court disagreed with the view that subsection (b)(3) would allow a court to order emancipation if it found

only that a child was not under the care and control of either parent. Dunson, 769 N.E.2d at 1123. This

Court stated that the “language of subsection (b)(3), viewed in isolation, leads to the conclusion that

neither self-support nor initiative of the child is required for emancipation” but that “both stare decisis and

legislative acquiescence” support a different view. Id. at 1124. Ultimately, this Court determined that

emancipation under subsection (b)(3) required both “the child’s initiative and the child’s self-support.”

Id. at 1125. Underlying that conclusion was a concern that without those requirements, parents would be

“permitted to ‘divorce their children’ and avoid paying child support simply by sending their children to

live with a third party or, worse yet, just throwing the child out of the house.” Id. at 1124. These

concerns would not be implicated by finding a child emancipated after the requirements of subsection

(a)(3) are met.

6

court unless it is clearly erroneous.” Hirsch, 944 N.E.2d at 963 (citing Connell v. Welty, 725

N.E.2d 502, 504 (Ind. Ct. App. 2000)). “‘We will not reverse unless there is a total lack of

supporting evidence or the evidence is undisputed and leads solely to a contrary conclusion.’” Id.

(quoting Connell, 725 N.E.2d at 504). The Court of Appeals ultimately determined that the trial

court “clearly erred” in concluding that Courtney was emancipated at any time prior to

December 10, 2009, which is the date Mother conceded Courtney was emancipated.7 Id. In

making that determination, the Court of Appeals found that the requirements of subsections

(a)(3)(B) and (C) had not been met. Id. at 964–65.

The Court of Appeals first noted that for child support to terminate under subsection

(a)(3) “both (1) a lack of attendance and (2) a lack of enrollment at an education institution” are

required for the prior four months. Id. at 964. The court then determined that “[t]he undisputed

evidence is that at all relevant times . . . [Courtney] was in fact enrolled as a student at Ivy Tech.”

Id. In reaching this conclusion, the Court of Appeals applied a definition of “is enrolled” from

Butrum v. Roman, 803 N.E.2d 1139, 1145 (Ind. Ct. App. 2004), trans. denied. Hirsch, 944

N.E.2d at 964. The Court of Appeals in Butrum noted that Title 31 of the Indiana Code did not

define “enroll” and thus settled on the following definition: “‘is enrolled’ as used in Indiana

Code § 31-16-6-6 means more than being involved in the application process; rather, it means

that one has been accepted to the institution and is officially registered at the institution as a

student.” 803 N.E.2d at 1145.

As to subsection (a)(3)(C), the Court of Appeals found insufficient evidence to support

the trial court’s conclusion that Courtney was “in fact self-supporting, or capable of self-

support.” Hirsch, 944 N.E.2d at 964. It determined that although the trial court found that

Courtney had worked at two different locations after graduating from high school, those facts did

“little more than establish that Courtney was physically capable of working.” Id. The Court of

Appeals noted that Courtney never worked more than twenty hours per week and that at most she

7

The Court of Appeals “note[d] that neither a child’s employment nor independent living outside a

parent’s household necessarily means the child is emancipated.” Hirsch, 944 N.E.2d at 963 n.5 (citing In

re Marriage of Brown, 597 N.E.2d 1297, 1300 (Ind. Ct. App. 1992)). The Court of Appeals nonetheless

presumed that Courtney was emancipated as of December 10, 2009, “given Mother’s concession on

appeal.” Id. We agree that a child’s employment or independent living would not automatically render a

child emancipated. This is also true of a parent’s concession regarding a child’s emancipation. Because

of our disposition of this issue, however, we need not explore those points further.

7

was paid $8 per hour. Id. The Court of Appeals concluded that “[t]here is no evidence that

Courtney possessed job skills that could lead to greater earnings.” Id.

Judge Baker dissented on both the enrollment and self-support issues. First, he stated that

the definition of “enroll” under the circumstances did not go “far enough.” Id. at 971. (Baker, J.,

concurring in part and dissenting in part). He explained that “[a]ccepting such a broad definition

of the term means that a student could conceivably be ‘enrolled’ in a postsecondary educational

institution in perpetuity without ever actually taking any classes.” Id. Judge Baker suggested a

modification to the Butrum definition: “enrolled, in the context of subsection (a)(3), means that

one has been accepted to the institution, is officially registered at the institution as a student, and

in good faith is attending or intends to attend the institution in the foreseeable future.” Id. The

dissent noted that here the trial court heard testimony regarding Courtney dropping all of her

classes after attending school for only two weeks, Courtney telling her father that college was not

for her, and Courtney saying that she did not foresee returning to school. Id. Furthermore,

although Courtney had re-enrolled in classes in January 2010, the trial court had noted in its

order “its skepticism that she would complete those classes.” Id. Judge Baker concluded, “It is

evident that the trial court assessed [Courtney’s] credibility and found it wanting, and I believe

that we should not second-guess that assessment on appeal. Consequently, I would find that the

trial court did not err by finding that Courtney was not enrolled in Ivy Tech on September 23,

2009.” Id. Father urges us to adopt the dissent’s definition of “enrolled,” stating that the

majority’s broad interpretation of the term could result in a child avoiding emancipation by

enrolling in classes indefinitely without ever intending to attend the classes.

We agree with the dissent and Father on the issue of enrollment. The present case, as

Judge Baker noted, presents the circumstances to demonstrate why the Butrum definition of “is

enrolled” is too broad. Inherent in the definition of “is enrolled” is a requirement that all parties

act in good faith; otherwise, an eighteen-year-old child could register for classes and never attend

them while his or her parent continues, as required by law, to pay child support. A parent should

not be burdened with the obligation of supporting his or her adult child in these circumstances

unless that child, in good faith, is furthering or intends to further her or her education.

Accordingly, the more appropriate definition of subsection (a)(3)’s “is enrolled” is the one

formulated by the dissent: is accepted to the institution, is officially registered at the institution as

8

a student, and in good faith is attending or intends to attend the institution in the foreseeable

future. Under that definition, the trial court here concluded that Courtney’s actions in attending

classes for two weeks and subsequently withdrawing neither constituted attending school in good

faith nor constituted intending to attend school in good faith.

On the issue of self-support, Judge Baker noted that the trial court heard evidence on

Courtney’s employment during and after high school. Hirsch, 944 N.E.2d at 971 (Baker, J.,

concurring in part and dissenting in part). And although Mother focused on Courtney’s alleged

anxiety disorder, the dissent noted that there was no “expert evidence supporting that claim” and

that “the trial court was free to discount the testimony” regarding it. Id. Judge Baker concluded

that the majority’s result “necessarily require[d] reweighing the evidence.” Id. We agree. The

majority here, although stating the correct standard of review, does not give proper deference to

the trial court’s finding on self-support. The trial court here explicitly found that Courtney “had

the capacity to work at least two jobs to provide for her own support” after hearing testimony on

the issue.8 Although the majority found reasons why this might not support a finding of self-

support, we cannot conclude that there is a total lack of supporting evidence for the trial court’s

contrary finding that Courtney was capable of self-support.

Thus, we disagree with the Court of Appeals conclusions that the trial court’s findings

regarding Courtney’s enrollment and capability of self-support were clearly erroneous. As stated

above, it was not clearly erroneous for the trial court to find that Courtney was not enrolled in

post-secondary education despite her two-week attendance to community college classes.

However, the record does not support the trial court’s finding that this lack of enrollment

occurred “for more than four months subsequent to her graduation from high school.” Here the

record shows that Courtney graduated sometime in the spring of 2009. The most specific

information was given by Father, when he stated that he believed Courtney graduated during the

“[f]irst week of June of 2009.” Based on this information, we find that the evidence does not

support the trial court’s finding that Courtney had not been engaged in educational pursuits for

four months prior to September 23, 2009, the date the trial court declared her emancipation.

8

The trial court made this determination after finding that Courtney had worked two part-time jobs

simultaneously. There is no indication that the trial court believed that Courtney’s capability of self-

support was based on her ability to work two full-time jobs at the same time.

9

September 23, 2009, is the date Father filed the emancipation petition, and we note that

“the assertion of emancipation will be effective as of the date of emancipation rather than as of

the date of filing.” Donegan v. Donegan, 605 N.E.2d 132, 133 (Ind. 1992). And the Court of

Appeals was correct in stressing that “[w]here there have been no material changes in the facts

and circumstances relevant to the issue of emancipation, a trial court finding that a child was

emancipated as of a certain arbitrary date . . . is clearly erroneous.” Hirsch, 944 N.E.2d at 963.

Accordingly, we remand to the trial court to determine the proper date of Courtney’s

emancipation. Using that date, the trial court must then recalculate the amount of child support

Father overpaid in accordance with the portions of the Court of Appeals opinion that we

summarily affirm.

II. Post-secondary Educational Expenses

The issue of whether Father should be required to contribute toward Courtney’s post-

secondary educational expenses is distinct from the issue of the date of Courtney’s emancipation.

Knisely v. Forte, 875 N.E.2d 335, 340 (Ind. Ct. App. 2007). Indiana Code section 31-16-6-2

(2008) gives guidance regarding contribution toward post-secondary educational expenses,

listing certain factors to take into account, such as “the child’s aptitude and ability,” “the child’s

reasonable ability to contribute to educational expenses,” and “the ability of each parent to meet

these expenses,” among other things.9 Furthermore, Child Support Guideline 8(b) lists expenses

9

Indiana Code section 31-16-6-2 provides in full as follows:

(a) The child support order or an educational support order may also include, where appropriate:

(1) amounts for the child’s education in elementary and secondary schools and at postsecondary

educational institutions, taking into account:

(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;

(2) special medical, hospital, or dental expenses necessary to serve the best interests of the child;

and

(3) fees mandated under Title IV-D of the federal Social Security Act (42 U.S.C. 651 through

669).

10

that may be included within a post-secondary educational expense order, such as tuition, books,

lab fees, supplies, student activity fees, room and board under certain circumstances,

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

also explicitly states that “[i]t is discretionary with the court to award post-secondary educational

expenses and in what amount.” Child Supp. G. 8(b). It continues that the court should “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.” Id.

Here the record reflects that Courtney withdrew from her classes at Ivy Tech and then re-

enrolled the following semester. The Court of Appeals addressed the propriety of requiring

contribution to the post-secondary educational expenses “‘of a once discontinued but now

resumed higher education.’” Hirsch, 944 N.E.2d at 965 (quoting Thiele v. Thiele, 479 N.E.2d

1324, 1329 (Ind. Ct. App. 1985)). Thiele listed various factors for a court to consider in this

circumstance:

Among the facts which may be considered in making such a determination are—

(1) the length of time elapsed between the interruption and resumption of the

educational program; (2) the age of the child; (3) the financial ability of the parent

or parents; (4) whether the child and the parents intended to abandon permanently

the program of higher education when withdrawing from it; (5) the

reasonableness of the child’s present desire and purpose in returning to an

institution of higher learning; (6) the activities of the child, particularly in relation

to employment or business during the hiatus; (7) other provisions made for the

child by the parent or parents; (8) the station in life of the child and the parent or

parents; (9) any other facts or circumstances reasonably related to the need of the

child for such education, the ability of the parent or parents to provide such

education, and the reasonableness or equity in requiring the parent or parents to

provide educational expenses.

479 N.E.2d at 1329. The trial court found that Father was not responsible for educational

expenses regarding Courtney after hearing testimony from Father, Mother, and Courtney. A

majority of the Court of Appeals reversed, stating that the record did not support “any

reasonable, equitable basis upon which to relieve Father of any and all obligation to assist

(b) If the court orders support for a child’s educational expenses at a postsecondary educational institution

under subsection (a), the court shall reduce other child support for that child that:

(1) is duplicated by the educational support order; and

(2) would otherwise be paid to the custodial parent.

11

Courtney in her post-secondary educational pursuits.” Hirsch, 944 N.E.2d at 966. The majority

noted that although the record showed that Father’s income had decreased, he had expressed his

“willingness” to contribute to Courtney’s educational expenses. Id. The majority also noted that

although Father had commented that he believed Courtney intended to abandon her education

after she withdrew from classes, there was “scant indication” that this was really Courtney’s

intention. Id. The majority then listed other factors that supported a conclusion that Father

should be obligated to pay for Courtney’s post-secondary educational expenses and determined

that “the trial court abused its discretion in terminating Father’s obligation.” Id.

Judge Baker dissented, believing that the majority “necessarily” reweighed the evidence

on this issue. Id. at 972 (Baker, J., concurring in part and dissenting in part). He noted that the

trial court heard evidence that Courtney was able to work through two years of high school, that

she had received a 100% tuition scholarship, and that she had held two jobs following

graduation. Id. He further noted that the trial court heard testimony on how Father’s income had

decreased from $111,000 in 2008 to $50,000 as of September 2009. Id. Finally, the dissent

noted that “Father also testified that Courtney told him, after withdrawing from all classes after

two weeks, that college was not for her and she did not foresee returning to college.” Id.

Finding that all of that evidence was relevant to the factors set forth in Indiana Code section 31-

6-6-2, the controlling statute, the dissent would have affirmed the trial court’s ruling on the issue.

Father agrees with the dissent’s analysis, stating that the trial court was within its discretion

when it considered and applied the evidence before making its ruling.

An appellate court reviews a trial court’s decision to order the payment of post-secondary

educational expenses for an abuse of discretion. Carr v. Carr, 600 N.E.2d 943, 945 (Ind. 1992).

Accordingly, we affirm the trial court unless the decision is against the logic and effect of the

facts and circumstances before the trial court. Id.

In this case, we cannot conclude that the trial court abused its discretion. Although the

majority’s analysis of the evidence is intricate, we believe that the analysis is simply a

reweighing of the evidence, which is not permitted under the applicable standard of review. The

dissent is correct in noting the evidence supported the trial court’s decision on this issue, and we

should not second-guess the trial court’s determination when it is in the best position to judge the

12

credibility of witnesses. Accordingly, we affirm the trial court’s ruling on post-secondary

educational expenses.

Conclusion

We affirm the trial court’s ruling that Father is not obligated to contribute to Courtney’s

post-secondary educational expenses. We remand to the trial court to determine the correct date

of Courtney’s emancipation.

Dickson, C.J., and Massa, J., concur.

Sullivan, J., dissents with a separate opinion in which Rucker, J., concurs.

13

Sullivan, Justice, dissenting.

Believing that the Court has impermissibly rewritten and incorrectly interpreted Indiana

Code section 31-16-6-6, I respectfully dissent.

The Court says that when the circumstances described in Indiana Code section 31-16-6-

6(a)(3) exist, then a child is emancipated for purposes of Indiana law. This is not correct. E.g.,

Sexton v. Sedlak, 946 N.E.2d 1177, 1186-87 (Ind. Ct. App. 2011), trans. denied; Carpenter v.

Carpenter, 891 N.E.2d 587, 593 (Ind. Ct. App. 2008); Marshall v. Marshall, 601 N.E.2d 9, 12 &

n.2 (Ind. Ct. App. 1992) (interpreting former version of statute); Brancheau v. Weddle, 555

N.E.2d 1315, 1316-17 & n.1 (Ind. Ct. App. 1990) (same). Contra Butrum v. Roman, 803 N.E.2d

1139, 1144 (Ind. Ct. App. 2004), trans. denied; Connell v. Welty, 725 N.E.2d 502, 505 (Ind. Ct.

App. 2000). Indiana Code section 31-16-6-6 sets forth three situations in which a child support

obligation does not terminate at age 21. Subsection (a)(1) specifies that one of those situations is

emancipation, and subsection (b) defines “emancipation.” Ind. Code § 31-16-6-6(a)(1), (b)

(2008). If the Legislature intended the circumstances of subsection (a)(3) to constitute emanci-

pation, it would have either included those circumstances within subsection (a)(1) or defined

“emancipation” in subsection (b) to include them.

That having been said, I acknowledge that with the Legislature’s recent action reducing

the age of emancipation from 21 to 19 effective July 1, 2012, see Pub. L. No. 111-2012, §§ 1-2,

2012 Ind. Acts 1590, 1590-91 (amending I.C. §§ 31-14-11-18 and 31-16-6-6), the consequences

of the Court’s decision are likely to be insignificant.

Rucker, J., concurs.