MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Oct 07 2015, 8:52 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE
Geoff Gustafson
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Geoff Gustafson,                                          October 7, 2015
Appellant-Petitioner,                                     Court of Appeals Cause No.
                                                          02A03-1502-JP-59
        v.                                                Appeal from the Allen Superior
                                                          Court
Ami Leigh Gomez                                           The Honorable Daniel G. Heath,
(Winebrenner),                                            Judge
Appellee-Respondent.                                      Trial Court Cause No.
                                                          02D07-9712-JP-181



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1502-JP-59 | October 7, 2015       Page 1 of 8
                                              Case Summary
[1]   Geoff Gustafson appeals the trial court’s denial of his motion to modify its

      order relating to postsecondary educational expenses. We affirm.


                                                      Issue
[2]   Gustafson raises two issues, which we consolidate and restate as whether the

      trial court properly denied his motion for modification.


                                                      Facts
[3]   Gustafson and Ami Gomez are the parents of Meghan Winebrenner, who was

      born in 1995. The couple was not married and, in 1997, entered into a joint

      stipulation addressing issues of custody, visitation, and support. The parties’

      agreement called for each parent to pay one-third of Meghan’s reasonable and

      necessary college expenses.


[4]   Meghan was prepared to begin college at St. Francis University in Fort Wayne

      in the fall of 2013. With Gustafson’s encouragement, Meghan had intended to

      participate in a tuition-exchange program, which was available to Meghan

      because Gustafson’s wife was employed at a participating college. However, in

      May 2013, Gustafson’s wife resigned from her job.


[5]   In June 2013, Gustafson filed a motion to modify the joint stipulation. On

      August 30, 2013, the trial court held a hearing on the motion and, on October




      Court of Appeals of Indiana | Memorandum Decision 02A03-1502-JP-59 | October 7, 2015   Page 2 of 8
      10, 2013, issued an order.1 The trial court ordered Meghan to pay one-third of

      her college expenses and Gustafson to pay 53.9% and Gomez 46.1% of the

      remaining two-thirds.


[6]   On November 8, 2013, Gustafson filed a motion to correct error. In the

      motion, Gustafson argued that he could not afford to contribute toward

      Meghan’s college expenses. Gustafson directed the trial court to his support of

      his three young sons and the fact that his wife was pregnant with a fourth child.

      Gustafson also questioned whether he would be able to obtain a loan to cover

      his share of Meghan’s college expenses.


[7]   On January 9, 2014, after a hearing, the trial court issued an order on the

      motion to correct error. In a twelve-page order, the trial court denied

      Gustafson’s motion to correct error in part and clarified it in part, capping

      Gustafson’s and Gomez’s total obligations based on the cost of tuition at Ball

      State University. The order specified in part:

              B. While the Court’s authority to award post-secondary
              educational expenses is discretionary, the Court, pursuant to
              Indiana Code 31-16-6-2, carefully considered the evidence
              presented by the parties relating to each relevant element as
              required and determined that Meghan had the aptitude and
              ability to succeed in the University of Saint Francis Nursing
              Program and each party (Meghan, Mr. Gustafson, and Ms.




      1
        This order was not included in Gustafson’s appendix, but it was detailed in the chronological case
      summary.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1502-JP-59 | October 7, 2015              Page 3 of 8
                Gomez) had the reasonable ability to meet their pro rata share of
                these expenses.


                C. The Court finds that Mr. Gustafson’s arguments presented at
                the hearing held on December 20, 2013, have not swayed the
                Court to change its findings and conclusions and the Court re-
                affirms its Order of the Court entered on October 10, 2013, . . .
                except as clarified or ordered herein.


                                                       *****


                14. While sympathetic to the high cost of assisting a child with
                college expenses, the Court does not find Mr. Gustafson’s
                argument credible that the Court erred in assessing his reasonable
                ability to contribute his pro rata portion of Meghan’s college
                education expenses after: 1) considering Mr. Gustafson’s current
                family income and current family expenses, 2) considering Mr.
                Gustafson’s prior commitment to contribute to Meghan’s college
                expenses, and 3) accurately and precisely calculating Mr.
                Gustafson’s pro rata share of Meghan’s college expenses.


      App. pp. 70, 74. Gustafson did not appeal.


[8]   On August 27, 2014, Gustafson filed a motion to modify the postsecondary

      educational expense order.2 On November 17, 2014, a hearing on this motion

      was held. On January 22, 2015, the trial court issued an order denying

      Gustafson’s motion to modify. The trial court found in part:




      2
          This motion is not included in Gustafson’s appendix.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1502-JP-59 | October 7, 2015   Page 4 of 8
              7. Father has not demonstrated a change in circumstances so
              substantial and continuing so as to justify a modification of the
              prior Court order regarding his contribution toward college
              expenses.


              8. Father’s financial position has improved since the prior
              hearing, when the Court compares Petitioner’s Verified Financial
              Declaration Form admitted as Petitioner’s Exhibit 2 to the
              Financial Declaration forms he submitted at the prior hearing
              and thereafter in support his Motion to Correct Errors and
              Request for Reconsideration.


              9. Father did not timely appeal the Court Order denying in part
              and granting in part his Motion to Correct Error and Request For
              Reconsideration. Rather, he sets forth factors, such as the birth
              of a child and expenses relating thereto, as evidence he presumes
              will support a finding of changed circumstances so as to justify a
              modification of the prior support order regarding post-secondary
              educational expenses. Most of the evidence he presented, apart
              from the birth of a child and the expenses relating thereto, was
              previously heard and ruled upon by the Court. Further, as
              previously stated, Father’s financial position has improved
              relative to the financial position he himself presented at the prior
              hearing and upon the Motion to Correct Errors. Father may not
              use the filing of the instant Motion to Modify Order on Post
              Secondary Expenses as a means to remedy his failure to timely
              appeal the Court Order concerning the partial denial of his
              Motion to Correct Error.


      Id. at 18. Gustafson now appeals


                                                   Analysis
[9]   As an initial matter, Gomez has not filed an appellee’s brief. Under such

      circumstances, we need not undertake the burden of developing an argument

      Court of Appeals of Indiana | Memorandum Decision 02A03-1502-JP-59 | October 7, 2015   Page 5 of 8
       on her behalf. See Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind.

       2014). Instead, we will reverse if Gustafson presents a case of prima facie error,

       which in this context is defined as at first sight, on first appearance, or on the

       face of it. See id.


[10]   Pursuant to Indiana Code Section 31-16-8-1(b)(1), the modification of child

       support may be made only “upon a showing of changed circumstances so

       substantial and continuing as to make the terms unreasonable[.]”3 In reviewing

       a modification order, we consider only evidence and reasonable inferences

       favorable to the judgment. Bogner v. Bogner, 29 N.E.3d 733, 738 (Ind. 2015).

       “The order will only be set aside if clearly erroneous.” Id. “[A]ppellate courts

       give considerable deference to the findings of the trial court in family law

       matters, including findings of ‘changed circumstances’ within the meaning of

       Indiana Code section 31-16-8-1.” MacLafferty v. MacLafferty, 829 N.E.2d 938,

       940 (Ind. 2005).


[11]   On appeal, Gustafson argues that, since the order on his motion to correct error

       was issued, his income has decreased and his wife has had another child. The

       trial court was not persuaded by these arguments, nor are we.


[12]   Regarding his income, Gustafson argues that his income has been reduced by

       $82.02 per week since the 2013 modification. However, in its motion to correct




       3
         Indiana Code Section 31-16-8-1(b)(2) is not applicable here because the order requested to be modified was
       not issued at least twelve months before the current motion to modify.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-JP-59 | October 7, 2015             Page 6 of 8
       error order, the trial court explained that it had utilized $999.78 as Gustafson’s

       weekly gross income to calculate child support and to determine Gustafson’s

       pro rata share of college expenses, not the $1,096.00 weekly gross income relied

       on by Gustafson on appeal. Moreover, it is clear from the trial court’s motion

       to correct error order that it was difficult to obtain a complete picture of

       Gustafson’s financial circumstances. For example, in addition to overtime pay

       and an annual bonus, Gustafson might have had income from a rental property.

       Also, the trial court also considered Gustafson’s wife’s income as an attorney

       and her ability to contribute toward household expenses as part of Gustafson’s

       overall financial circumstances. In support of his motion to modify, Gustafson

       offers no explanation for the purported decrease in his income, and he has not

       established that his income was reduced in such a substantial and continuing

       manner so as to make the postsecondary educational expense order

       unreasonable.


[13]   Regarding the birth of Gustafson and his wife’s fourth child, at the time of the

       motion to correct error, the trial court was aware of the child’s impending birth.

       In fact, the child was born before the trial court issued its order on Gustafson’s

       motion to correct error. We are not convinced that the birth of that child or the

       expenses associated with it amounted to a continuing and substantial change in

       circumstances given the procedural history and posture of this case. In the

       absence of a substantial change of circumstances, Gustafson has not made a

       prima facie showing that denial of his motion to modify was clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-JP-59 | October 7, 2015   Page 7 of 8
[14]   Gustafson devotes much of his brief to showing that the postsecondary expense

       order was unreasonable and raises many of the same issues that were raised in

       the motion to correct error. However, by not timely appealing that order,

       Gustafson has forfeited the right to challenge it now. See Ind. Appellate Rule

       9(A)(5) (“Unless the Notice of Appeal is timely filed, the right to appeal shall be

       forfeited except as provided by P.C.R. 2.”). This issue is not available for

       appellate review.4


                                                    Conclusion
[15]   Gustafson has not made a prima facie showing of clear error in the denial of his

       motion to modify the postsecondary expense order. We affirm.


[16]   Affirmed.


       Kirsch, J., and Najam, J., concur.




       4
         Gustafson also asks us to order that he be reimbursed for the costs of service of the notice of appeal and
       appellant’s brief. However, he cites no authority establishing that he is entitled to such or that we may order
       such at this stage in the proceedings. This issue is waived. See Ind. App. R. 46(A)(8) (requiring each
       contention to be supported by citations to authority).

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