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.




Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017          Page 1 of 13
                                 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.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017             Page 2 of 13
      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.



      Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017   Page 3 of 13
[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.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017   Page 4 of 13
              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



      Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017   Page 5 of 13
       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.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017   Page 6 of 13
       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

       Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017   Page 7 of 13
       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

       Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017   Page 8 of 13
       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


       Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017   Page 9 of 13
       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

       Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017   Page 10 of 13
       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.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017   Page 11 of 13
[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


       Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017   Page 12 of 13
       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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