                                                                                  FILED
                                                                             Mar 22 2017, 10:39 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEY FOR APPELLEE AMY
Bryan L. Ciyou                                            S. LIKES
Darlene R. Seymour                                        John M. Haecker
Ciyou & Dixon, P.C.                                       Squiller & Hamilton, LLP
Indianapolis, Indiana                                     Auburn, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lisa Gill,                                                March 22, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          20A03-1607-DR-1569
        v.                                                Appeal from the Elkhart Superior
                                                          Court
Jeffery B. Gill,                                          The Honorable Stephen R.
Appellee-Respondent.                                      Bowers, Judge
                                                          Trial Court Cause No.
                                                          20D02-1002-DR-23



In Re the Marriage Of:                                    Court of Appeals Case No.
                                                          20A03-1607-DR-1569
Jasen Simcox,                                             Appeal from the Kosciusko Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable David C. Cates,
        v.                                                Special Judge
                                                          Trial Court Cause No.
Amy S. (Simcox) Likes,                                    43C01-9808-JP-576
Appellee-Petitioner.




Court of Appeals of Indiana | Opinion 20A03-1607-DR-1569 | March 22, 2017                 Page 1 of 11
      Paul King,                                                Court of Appeals Case No.
                                                                20A03-1607-DR-1569
      Appellant-Petitioner,
                                                                Appeal from the Marion Superior
              v.                                                Court
                                                                The Honorable Cynthia J. Ayers,
      Jennifer Devine,                                          Judge
                                                                The Honorable Mark F. Renner,
      Appellee-Respondent.                                      Magistrate
                                                                Trial Court Cause No.
                                                                49D04-9909-DR-1262



      Bradford, Judge.



                                           Case Summary
[1]   This consolidated appeal involves three separate challenges to the

      constitutionality of statutory authority which authorizes a trial court to order a

      divorced parent to contribute to his or her child’s post-secondary educational

      expenses. On appeal, Appellant-Petitioner Lisa Gill, Appellant-Respondent

      Jasen Simcox, and Appellant-Petitioner Paul King (collectively, “the

      Appellants”) contend that such statutory authority is unconstitutional for two

      reasons: (1) the statute violates a divorced parent’s equal protection right as it

      places the divorced parent in a different position than married parents and (2)

      the statute interferes with a parent’s fundamental right to determine his or her

      child’s upbringing and education.


[2]   On cross-appeal, Appellee-Petitioner Amy S. Likes contends that the trial court

      abused its discretion by (1) crediting Jasen Simcox for certain nonconforming

      Court of Appeals of Indiana | Opinion 20A03-1607-DR-1569 | March 22, 2017             Page 2 of 11
      child support payments and (2) basing Jasen Simcox’s post-secondary education

      obligation on the cost of a public university rather than the cost of the private

      university that their daughter attends.


[3]   Upon review, we conclude that the Indiana Supreme Court has clearly held that

      statutory authority allowing a trial court to order a divorced parent to

      contribute to his child’s post-secondary educational expenses is constitutional.

      As for the issues presented on cross-appeal, we find no abuse of discretion by

      the trial court. Accordingly, we affirm the judgments of the trial courts in each

      of the individual matters.



                            Facts and Procedural History
[4]   The instant matter is a consolidated appeal from three separate trial court

      judgments. The facts in each individual manner are largely undisputed and are

      set forth below.


                                               I. Gill v. Gill
[5]   Lisa Gill was previously married to Appellee-Respondent Jeffrey B. Gill. Their

      marriage was dissolved by order of the Elkhart Superior Court on June 22,

      2011. Two children, Au.G. and Ad.G., were born of the parties’ marriage.

      Au.G. began attending Indiana University South Bend (“IUSB”) in September

      of 2013. Ad.G. planned to attend college at either Indiana University, Ball

      State University, Purdue University, Indiana State University, or IUPUI.




      Court of Appeals of Indiana | Opinion 20A03-1607-DR-1569 | March 22, 2017   Page 3 of 11
[6]   On December 2, 2013, Jeffrey Gill filed his verified petition for a post-

      secondary educational expense order. Lisa Gill objected to this petition on

      January 9, 2015. Following a January 15, 2015 evidentiary hearing, the Elkhart

      Superior Court issued an order finding Lisa Gill responsible for a portion of her

      children’s post-secondary educational expenses.


                                          II. Simcox v. Likes
[7]   Jasen Simcox was previously married to Amy Likes. Their marriage was

      dissolved by order of the Kosciusko Circuit Court in December of 1998. One

      child, T.S., was born of the parties’ marriage. During the 2015-2016 academic

      year, T.S. was a sophomore at Anderson University where she played soccer.


[8]   On November 5, 2015, Amy Likes filed her verified petition for a post-

      secondary educational expense order. Jasen Simcox objected to this petition on

      May 25, 2016. Following a June 14, 2016 evidentiary hearing, the Kosciusko

      Circuit Court issued an order finding Jasen Simcox responsible for a portion of

      T.S.’s post-secondary educational expenses.


                                          III. King v. Devine
[9]   Paul King was previously married to Appellee-Respondent Jennifer Devine.

      Their marriage was dissolved by order of the Marion Superior Court on

      December 18, 2000. Two children were born of this marriage. The younger of

      the two children, S.K. attended IUPUI for the 2015-2016 academic year and

      planned to continue her studies at IUPUI for the 2016-2017 academic year.

      The full cost of attending IUPUI for one year is approximately $18,200.
      Court of Appeals of Indiana | Opinion 20A03-1607-DR-1569 | March 22, 2017   Page 4 of 11
[10]   On April 27, 2016, Jennifer Devine filed a petition to establish a post-secondary

       expense order. Following an August 12, 2016 evidentiary hearing, the Marion

       Superior Court issued an order finding S.K. responsible for $8933 in annual

       post-secondary educational expenses, finding her parents responsible for the

       remaining $9267 in annual post-secondary educational expenses, and holding

       Paul King responsible for 74% of the parents’ share of the cost of S.K.’s post-

       secondary education.


                                   IV. Appellate Proceedings
[11]   Lisa Gill initiated an appeal of the trial court’s order under Cause Number

       20A03-1607-DR-1569. Jasen Simcox initiated an appeal of the trial court’s

       order under Cause Number 43A03-1607-DR-1682. Paul King initiated an

       appeal of the trial court’s order under Cause Number 49A02-1609-DR-2061.

       The Appellants subsequently filed individual Motions to Consolidate, with each

       requesting that we consolidate the three cases for the purpose of appeal. On

       November 7, 2016, we issued an order granting the Appellants’ Motions to

       Consolidate and ordered that the three cases should be consolidated under

       Cause Number 20A03-1607-DR-1569.



                                  Discussion and Decision
                          I. Issue Presented on Direct Appeal
[12]   Appellants contend that Indiana Code section 31-16-6-2, which authorizes a

       trial court to order a divorced parent to contribute to his or her child’s post-


       Court of Appeals of Indiana | Opinion 20A03-1607-DR-1569 | March 22, 2017   Page 5 of 11
       secondary educational expenses, is unconstitutional. Specifically, Appellants

       claim that Indiana Code section 31-16-6-2 is unconstitutional for two reasons:

       (1) the statute violates a divorced parent’s equal protection right as it places the

       divorced parent in a different position than married parents and (2) the statute

       interferes with a parent’s fundamental right to determine his or her child’s

       upbringing and education.


[13]   In raising these claims, Appellant’s acknowledge that the Indiana Supreme

       Court has previously rejected such claims and found a substantially similar

       prior version of the statute in question to be constitutional. See Neudecker v.

       Neudecker, 577 N.E.2d 960 (Ind. 1991) (rejecting the Appellant’s claim that the

       statute allowing the trial court to order him to pay a portion of his child’s post-

       secondary educational expenses was unconstitutional because it (1)

       impermissibly treated unmarried parents and their children differently from

       married parents and their children, and (2) infringed upon his fundamental

       child-rearing rights). Nevertheless, Appellants argue that because the Indiana

       Supreme Court’s decision in Neudecker is over twenty-five years old, “as a

       matter of law, this Court should review this issue anew as prior law is outdated

       and not in sync with our current society.” Appellants’ Br. p. 12.


[14]   Appellants essentially ask us to overturn the Indiana Supreme Court’s long-

       standing decision in Neudecker. However, it is well-established that as Indiana’s

       intermediate appellate court, we are bound to follow Indiana Supreme Court

       precedent. See Sedam v. 2JR Pizza Enterprises, LLC, 61 N.E.3d 1191, 1196 (Ind.

       Ct. App. 2016) (providing that it is not the role of the Court of Appeals to

       Court of Appeals of Indiana | Opinion 20A03-1607-DR-1569 | March 22, 2017   Page 6 of 11
       reconsider or declare invalid decisions of the Indiana Supreme Court and that

       the Court of Appeals is bound by precedent of the Indiana Supreme Court until

       it is changed either by that court or by legislative enactment). As such, we

       decline the Appellants’ request that we overturn the Indiana Supreme Court’s

       decision in Neudecker.1


                  II. Cross-Appeal Issues Raised by Amy Likes
                       A. Nonconforming Child Support Payments
[15]   Amy Likes contends that the trial court abused its discretion by crediting Jasen

       Simcox for $1050 in nonconforming child support payments. Generally, an

       obligated parent will not be allowed credit for payments not conforming with

       the support order except in three narrow situations:

                (1) when the proof offered is sufficient to convince the trier of fact
                that the judicially required support payments have actually been
                made by the obligated party to the person entitled even though
                the payments are technically nonconforming; (2) the parties have
                agreed to and carried out an alternative method of payment
                which substantially complies with the spirit of the decree, and (3)
                where the obligated parent by agreement with the custodial



       1
         Further, to the extent that Appellants challenge the trial courts orders by claiming that they should not be
       held responsible for contributing to their children’s post-secondary educational expenses because their
       respective children have repudiated them, we note that the only specific allegation of repudiation contained
       in Appellants’ Brief relates to Jasen Simcox and his daughter, T.S. The record indicates that the trial court
       heard testimony relating to this claim, including the testimony of T.S. In finding that T.S. had not repudiated
       her father, the trial court apparently found T.S.’s testimony to be credible. The trial court, acting as the trier-
       of-fact, was in the best position to judge the credibility of the witnesses and we will not disturb such
       determinations on appeal. See generally Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002) (providing that upon
       review, appellate courts do not reweigh the evidence or reassess the credibility of the witnesses). As such, we
       will not disturb the trial court’s apparent determination that T.S.’s assertion that she had not repudiated her
       father and that she wished to have a relationship with him to be credible.

       Court of Appeals of Indiana | Opinion 20A03-1607-DR-1569 | March 22, 2017                             Page 7 of 11
               parent has taken the children into his or her home, assumed
               custody of them, provided them with necessities, and has
               exercised parental control over their activities for such an
               extended period of time that a permanent change of custody has
               in effect occurred.


       In re Marriage of Baker, 550 N.E.2d 82, 87 (Ind. Ct. App. 1990) (citing O’Neil v.

       O’Neil, 535 N.E.2d 523, 524 (Ind. 1989)). It is undisputed that situations two

       and three do not apply to the instant matter. As such, the question before us on

       appeal is whether Jasen Simcox offered proof that was sufficient to convince the

       trial court that he had made judicially-required support payments to Amy

       Likes, even though such payments were technically nonconforming.


[16]   With respect to the nonconforming payments at issue, the trial court found that

       as of June 14, 2016, Jasen Simcox was “delinquent in his support obligation in

       the amount of $2,268.00, as shown by the records of the Kosciusko County

       Clerk and the Indiana State Central Child Support Collection Unit.”

       Appellants’ App. Vol. II, p. 46. However, the trial court further found that

       Jasen Simcox had “made nonconforming payments to Mother in the sum of

       $1,050.00.” Appellants’ App. Vol. II, p. 46. In finding that Jasen Simcox

       should be given credit for the nonconforming payments of $1050, the trial court

       considered Jasen Simcox’s uncontested testimony which indicated the

       following:


               Q:     And what was done with those checks?
               A:     They were written to [Appellee Likes] for various things,
               whether it had been – oh God – you name it. School, book fees,
               extra related stuff. I cannot tell you the exact, but it would have

       Court of Appeals of Indiana | Opinion 20A03-1607-DR-1569 | March 22, 2017     Page 8 of 11
               been school related, soccer related.
               Q:     For instance the second one, the check in the amount of
               $300.00. In the memo section do you see where it says school?
               A:     Yes, that school stuff.
               Q:     School stuff, okay. The other two checks nothing was
               written in the memo section but the middle one does say school
               stuff.
               A:     Yes.
               Q:     Are you requesting that the Court give you credit for the
               total amount of $1,050.00 and subtract that from the arrearages?
               A:     Yes, please.
               Q:     Were these checks intended to be a gift to either [Amy
               Likes] or your daughter in addition to support?
               A:     No, it was towards what my daughter needed towards
               supporting my daughter.


       Simcox Tr. p. 45. One may reasonably infer from the trial court’s order

       awarding Jasen Simcox credit for $1050 in nonconforming child support

       payments that the trial court was convinced by Jasen Simcox’s testimony that

       such payments were intended to satisfy his judicially required child support

       obligation. We will not disturb the trial court’s determination on appeal.


               B. Public School Tuition vs. Private School Tuition
[17]   Amy Likes also contends that the trial court abused its discretion by basing

       Jasen Simcox’s post-secondary education obligation on the cost of a public

       university rather than the cost of Anderson University, the school where T.S.

       matriculates.


               Indiana Child Support Guideline 8(b) provides that “[t]he court
               may limit consideration of college expenses to the cost of state
               supported colleges and universities or otherwise may require that

       Court of Appeals of Indiana | Opinion 20A03-1607-DR-1569 | March 22, 2017   Page 9 of 11
                 the income level of the family and the achievement level of the
                 child be sufficient to justify the expense of private school.” In
                 determining whether educational support should be limited to the
                 cost of in-state, state-supported colleges, the trial court should
                 balance “the advantages of the more expensive college in relation
                 to the needs and abilities of the child with the increased hardship
                 of the parent.” [Hinesley-Petry v. Petry, 894 N.E.2d 277, 281 (Ind.
                 Ct. App. 2008)].


       In re Paternity of Pickett, 44 N.E.3d 756, 767-68 (Ind. Ct. App. 2015).


[18]   In Pickett, the trial court heard evidence that the Child chose Butler University

       because she thought that it offered her a better education and was where she

       wanted to go. Id. at 768. The evidence demonstrated that the Child did not

       discuss her educational decision-making process with Father but rather simply

       informed him that she was going to go to Butler. Id. The trial court based

       Father’s financial obligation on the cost of Butler rather than a public

       university. In light of the fact that Father was not included in the Child’s

       decision-making process together with the lack of any evidence suggesting that

       Butler offered a special curriculum not available at other universities, we

       concluded on appeal that the trial court’s decision to order Father to contribute

       to Child’s college expenses based on the cost of a private university rather than

       a public university was against the logic and effect of the circumstances before

       it. Id.


[19]   Similarly, here, the record indicates that Jasen Simcox was not involved in

       T.S.’s decision-making process when considering where to attend college. T.S.

       chose to attend Anderson University because she wanted to play collegiate

       Court of Appeals of Indiana | Opinion 20A03-1607-DR-1569 | March 22, 2017   Page 10 of 11
       soccer. Once at Anderson, she decided to study nursing. T.S. did not present

       any evidence suggesting that Anderson University offered any special programs

       that were not offered at other universities or colleges. Considering the facts of

       the instant matter together with our decision in Pickett, we conclude that the

       trial court did not abuse its discretion in basing Jasen Simcox’s financial

       obligation for T.S.’s post-secondary educational expenses on the cost of a public

       university rather than the cost of Anderson University.



                                                Conclusion
[20]   In sum, we are bound by the Indiana Supreme Court’s decision with regard to

       the constitutionality of statutory authority allowing a trial court to order a

       divorced parent to contribute to their child’s post-secondary educational

       expenses. In addition, with respect to Jasen Simcox, the trial court did not

       abuse its discretion in (1) crediting him for nonconforming child support

       payments made to Amy Likes or (2) basing his financial obligation for T.S.’s

       post-secondary education on the cost of a public university rather than a private

       university.


[21]   In this consolidated appeal, the judgments of the trial courts are affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 20A03-1607-DR-1569 | March 22, 2017   Page 11 of 11
