MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                          Feb 06 2018, 8:45 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Derick W. Steele                                         Alan D. Wilson
Kokomo, Indiana                                          Kokomo, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

J.L.S.,                                                  February 6, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         34A02-1709-DR-2093
        v.                                               Appeal from the Howard Superior
                                                         Court
E.K.S.,                                                  The Honorable William C.
Appellee-Petitioner.                                     Menges, Jr., Judge
                                                         Trial Court Cause No.
                                                         34D01-0806-DR-12



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1709-DR-2093 | February 6, 2018            Page 1 of 9
                                          Case Summary
[1]   J.S. (“Father”) appeals the denial of his petition to modify his obligation for the

      payment of post-secondary educational expenses for C.S., the youngest child of

      Father’s marriage to E.S. (“Mother”). We affirm.



                                                   Issues
[2]   Father presents two issues for review:


              I.       Whether the parties’ dissolution agreement, adopted and
                       incorporated in the dissolution decree, excludes rent from
                       the scope of educational expenses; and


              II.      Whether the trial court abused its discretion in failing to
                       find a substantial and continuing change of circumstances
                       to support modification of Father’s obligation.


                            Facts and Procedural History
[3]   The parties were married on March 26, 1988, and divorced on June 20, 2008.

      At the time of the dissolution, they had two unemancipated children.


[4]   Mother and Father worked opposite shifts and had roughly equal incomes.

      They agreed that parenting time would be split equally; under those

      circumstances, the Indiana Child Support Guidelines (“Guidelines”) would

      have resulted in Father having a payment obligation of $29.78 weekly.

      However, Mother and Father agreed that Father would not be obligated to pay



      Court of Appeals of Indiana | Memorandum Decision 34A02-1709-DR-2093 | February 6, 2018   Page 2 of 9
      Mother this sum. Their agreement, adopted by the dissolution court, provided

      in relevant part:


              Husband shall have no duty to pay support for the following
              reasons:


              a) Husband agrees to maintain healthcare insurance on his
                 children;


              b) Husband agrees to be responsible for all non-covered
                 healthcare costs for the children;


              c) Husband agrees to be responsible for all educational costs for
                 the children including both secondary and post-secondary
                 education;


              d) Husband agrees to be solely responsible for all costs
                 associated with the children including but not limited to their
                 clothing and sport activities.


      (App. Vol. II, pg. 41.)


[5]   The eldest child, S.S., attended a community college and Father paid for

      tuition, books, and fees. He did not pay rent, room, or board for S.S. Several

      years later, C.S. enrolled in college classes locally and lived at Mother’s

      residence. Again, Father paid tuition, books, and fees, but did not pay rent,

      room, or board for C.S.


[6]   After completing a few semesters of college, C.S. decided to enroll in Indiana

      University - Bloomington. C.S. decided to share an apartment with another


      Court of Appeals of Indiana | Memorandum Decision 34A02-1709-DR-2093 | February 6, 2018   Page 3 of 9
      student; C.S.’s monthly rent was $629.00. Mother, by letter, informed Father

      that he was obligated to pay $24,808.00, including C.S.’s tuition and rent.


[7]   On May 22, 2017, Father filed a “Request for Instructions/Petition to Modify

      Post-Secondary Educational Expenses.” (App. Vol. II, pg. 51.) In his petition,

      Father averred that he had understood the agreement for educational expenses

      to exclude living expenses. The trial court conducted a hearing on August 7,

      2017.


[8]   At the hearing, C.S., Mother, and Father testified. Father requested a

      determination that he did not owe any rent under the terms of the agreement, or

      alternatively, Father sought modification to provide for apportionment of costs

      between himself, Mother, and C.S. Mother opposed apportionment,

      contending that Father had agreed to pay all education-related expenses and

      had benefitted from not paying child support to Mother. C.S. testified and

      acknowledged that he had changed his major course of study four times and

      had made unilateral decisions affecting costs. C.S. explained that, under those

      circumstances, he did not wish to unduly burden his parents and was willing

      and able to contribute to his own education. C.S. testified that he had saved

      $4,000.00 from his past wages; he had obtained a student loan for $4,000.00 or

      $5,000.00; and he intended to work in the future.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1709-DR-2093 | February 6, 2018   Page 4 of 9
[9]    When the presentation of evidence was concluded, the trial court orally denied

       Father’s motion for modification.1 Father now appeals.



                                     Discussion and Decision
                          Agreement on Educational Expenses
[10]   Father asserts that “educational expenses” as used in the agreement was

       ambiguous, the payment of room and board was not contemplated by the

       parties, and “the trial court erred in interpreting educational expenses” to

       include C.S.’s rent. Appellant’s Brief at 7. Mother responds that the parties

       freely entered into a contract with broad language providing that Father pay

       “all” educational expenses and that their settlement is “binding and

       conclusive.” Appellee’s Brief at 15.


[11]   Parties to a dissolution are free to enter into contracts and matters of contract

       interpretation present questions of law to be reviewed de novo. Pohl v. Pohl, 15

       N.E.3d 1006, 1009 (Ind. 2014). Terms will be given their plain and ordinary

       meaning, unless the terms are ambiguous. Id. “[I]f there is an ambiguity, we

       may consider extrinsic (parol) evidence to resolve it, with the aim of carrying

       out the parties’ likely intent.” Id. Here, we are presented not with an ambiguity

       but with broadly inclusive language, that is, the use of the word “all” pertaining




       1
        The trial court indicated that, in the future, the court might entertain Father’s request that an educational
       expenses order be capped at eight semesters. We have previously observed, “an educational support order
       cannot be imposed for an unlimited period of time.” Bean v. Bean, 902 N.E.2d 256, 263 (Ind. Ct. App. 2009).

       Court of Appeals of Indiana | Memorandum Decision 34A02-1709-DR-2093 | February 6, 2018            Page 5 of 9
       to educational expenses. Thus, the salient question is whether rent is an

       educational expense.


[12]   We agree with Mother’s assertion that educational costs may include room,

       board, or rent. Although Guideline 8, pertaining to extraordinary educational

       expenses, does not mandate the payment of room, board, or rent for a post-

       secondary student, the accompanying Commentary contemplates inclusion in

       some circumstances (“Room and board may be included when the child does

       not reside with either parent.”) Too, decisions of this Court have recognized

       that living expenses may be a component of educational expenses. See Carson v.

       Carson, 875 N.E.2d 484, 486 (Ind. Ct. App. 2007) (rejecting a parent’s argument

       that “housing may not be considered an educational expense”); Howe v.

       Voninski, 698 N.E.2d 380, 381 (Ind. Ct. App. 1998) (“[child] attends a

       university which is beyond the distance of a reasonable commute and therefore

       her room and board constitute educational needs.”). C.S. is enrolled in college

       and not residing with a parent; he thus incurs rental expenses related to his

       education. The trial court properly interpreted the agreement to pay “all”

       educational expenses as inclusive of rent.


[13]   That said, the agreement is not “binding and conclusive,” as Mother suggests,

       in the sense that modification is prohibited. Property settlement agreements

       “crafted upon dissolution of marriage” are contractual in nature and binding.

       Rodriquez v. Rodriquez, 818 N.E.2d 993, 996 (Ind. Ct. App. 2004). However,

       provisions for the payment of educational expenses are modifiable “because

       educational expenses are in the nature of child support.” Schacht v. Schacht, 892

       Court of Appeals of Indiana | Memorandum Decision 34A02-1709-DR-2093 | February 6, 2018   Page 6 of 9
       N.E.2d 1271, 1275 (Ind. Ct. App. 2008). We thus turn to the issue of whether

       modification was warranted here.


       Petition for Modification of Educational Expenses Order
[14]   Father asserts that the trial court was obliged to consider all relevant evidence

       of changed circumstances but failed to document its consideration with

       adequate findings to permit meaningful appellate review. Mother responds that

       the trial court was not fashioning a new order, in which apportionment of

       expenses would be supported by the Guidelines and a Guideline-based

       worksheet; rather, the trial court declined to modify an existing agreement

       because Father failed to satisfy his burden of proof.


[15]   A modification of an educational expenses order is governed by Indiana Code

       Section 31-16-8-1, which provides that a child support order may be modified or

       revoked upon a showing of changed circumstances so substantial and

       continuing as to make the terms of the order unreasonable. Himes v. Himes, 57

       N.E.3d 820, 828 (Ind. Ct. App. 2016). When ruling upon a petition to modify a

       support order, the trial court must consider the totality of the circumstances

       involved in order to ascertain whether modification is warranted. Id. The party

       seeking modification bears the burden of proof. Id.


[16]   We review the trial court’s order for an abuse of discretion, granting latitude

       and deference to trial courts in family law matters. Id. We neither reweigh the

       evidence nor assess witness credibility; we consider only the evidence most

       favorable to the judgment and the inferences to be drawn therefrom. Id.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1709-DR-2093 | February 6, 2018   Page 7 of 9
[17]   Here, Father bore the burden of showing changed circumstances so substantial

       and continuing as to make the terms of the existing order unreasonable. He

       and Mother each explained his or her understanding of the agreement and

       testified regarding the historical payments (which had not included rent for the

       eldest child). Father testified that his income was in the range of $116,000.00 to

       $120,000.00; Mother testified that she made $86,000.00 annually. C.S. testified

       that he had independently made certain education-related decisions, he had

       financial resources available to him, and – to alleviate some of the parental

       burden – he was willing to contribute some of his financial resources toward his

       own education.


[18]   The chronological case summary indicates that the denial order was entered

       without written findings; however, the trial court orally provided some

       commentary of reasons for the denial. In relevant part, the trial court stated, “I

       don’t think there’s anything that rises to the level of a material change in

       circumstances” and “very clearly, [Father] is responsible under the terms of the

       original agreement to pay for tuition, books, lab fees, supplies, activity fees and

       room and board.” (Tr. at 44-45.) The trial court observed that the parties’

       relative financial positions had not changed significantly since the agreement

       was executed, noting that Father’s income had decreased slightly while

       Mother’s income had increased slightly. Our review of the evidence leads us to

       conclude that the trial court did not abuse its discretion.


[19]   We, like the trial court, find C.S.’s willingness to contribute to his own

       educational expenses commendable. Indeed, when the trial court is called upon

       Court of Appeals of Indiana | Memorandum Decision 34A02-1709-DR-2093 | February 6, 2018   Page 8 of 9
       to award educational expenses, an apportionment of expenses should involve

       “weighing the ability of the student to pay a portion of the expenses.”

       Guideline 8, Cmt. b. Here, however, the educational expenses were the subject

       of a parental agreement to which C.S. is not a party. C.S. was not obligated by

       the court order adopting that agreement. That said, nothing prevents C.S. from

       using his income or loans to satisfy an obligation that would otherwise fall upon

       Father. Nor is C.S. prevented from reimbursing Father for rent in the future.

       His willingness to contribute does not constitute changed circumstances making

       the order entered upon the parental agreement unreasonable.



                                               Conclusion
[20]   Under the parties’ agreement, adopted by the dissolution court, rent is

       includable as an educational expense. Father did not establish changed

       circumstances so substantial as to make the existing order unreasonable.


[21]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1709-DR-2093 | February 6, 2018   Page 9 of 9
