                                                                             Sep 23 2015, 8:42 am




ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
Deborah K. Smith                                            Andrea L. Ciobanu
Sugar Creek Law                                             Alex Beeman
Thorntown, Indiana                                          Ciobanu Law, P.C.
                                                            Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of                                     September 23, 2015
Makayla Lauren Pickett                                     Court of Appeals Case No. 29A02-
                                                           1501-JP-9

                                                           Appeal from the Hamilton Superior
Gregg Roberts,                                             Court
Appellant-Respondent,
                                                           The Honorable William J. Hughes,
        v.                                                 Judge

                                                           The Honorable David J. Najjar,
Shonda Pickett,                                            Magistrate
Appellee-Petitioner                                        Case No. 29D03-9504-JP-366




Crone, Judge.




Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015                 Page 1 of 26
                                              Case Summary
[1]   Gregg Roberts (“Father”) appeals the trial court’s order finding him in

      contempt for failing to pay child support to his child, Makayla Lauren Pickett

      (“Child”), and ordering him to contribute to her college expenses based on a

      motion filed by Shonda Pickett (“Mother”). As an initial matter, Father

      contends that the trial court’s findings of facts and conclusions thereon are

      inadequate for appellate review. He also argues that the trial court erred by

      failing to find that Child repudiated him, requiring him to contribute half the

      balance remaining after Child’s contribution toward college expenses is applied,

      basing his contribution toward college expenses on the cost of a private

      university rather than a public university, and ordering him to pay for college

      expenses incurred before Mother’s motion for college expenses was filed.

      Finally, he asserts that the trial court erred by ordering him to pay part of the

      attorney’s fees incurred by Mother as a sanction for being in contempt of court.


[2]   We conclude that the trial court’s findings and conclusions are adequate for our

      review. We also conclude the Father waived his argument that Child

      repudiated him and that the trial court did not err by ordering Father to pay half

      the remaining balance of Child’s college expenses and part of Mother’s

      attorney’s fees. However, we conclude that the trial court erred by basing

      Father’s contribution toward Child’s college expenses on the costs of a private

      university rather than a public university and by ordering him to pay for college

      expenses incurred before Mother’s motion was filed. Therefore, we affirm in

      part, reverse in part, and remand.

      Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015   Page 2 of 26
                                  Facts and Procedural History
[3]   Child was born February 21, 1995, in Indianapolis. Mother filed a petition to

      establish Father’s paternity and for child support. Father agreed to paternity,

      and Mother and Father agreed that Mother would have custody of Child and

      Father would exercise visitation. The trial court ordered Father to pay weekly

      child support of $78.00 and part of Child’s uninsured medical expenses and

      purchase a life insurance policy on his own life with Child named as the

      beneficiary.


[4]   Father exercised visitation with Child, but Mother and Father’s relationship

      was hostile and turbulent. In 2001, following a custody evaluation by two

      doctors, the trial court issued an order in which it found that both parties

      engaged in conduct that was destructive to Child. The trial court ordered that

      Mother continue sole custody of Child conditioned upon her participation in

      reunification therapy with Father, that Father’s visitation be as consistent as

      possible, and that the parties refrain at all times from speaking negatively about

      each other in or near Child’s presence. Parents and Child engaged in

      reunification therapy, which was terminated by the counselor. Initially, Father

      exercised visitation with Child every other weekend and on Wednesdays, but at

      some point his visitation diminished.


[5]   Child graduated from high school in the spring of 2013. Before Child

      graduated from high school, she and Father would go out to dinner every one

      or two weeks. At some point, Child informed Father that she was going to

      attend Butler University. Child’s high school provided each graduate with six
      Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015   Page 3 of 26
      tickets to the graduation ceremony. Child offered Father one ticket. He

      accepted and attended her graduation. After Child graduated, they had no

      further contact with each other. 1 In the autumn of 2013, Child began attending

      Butler.


[6]   On February 18, 2014, Mother filed a motion for contempt and for college

      expenses. She alleged that Father had failed to pay child support and his share

      of Child’s medical expenses and to maintain a life insurance policy. She also

      asked for “an Educational Support Order allocating the college expenses

      between the parties” and for attorney’s fees. Appellant’s App. at 73. On

      February 21, 2014, Child turned nineteen and became emancipated pursuant to

      statute.


[7]   A hearing on Mother’s motion was held. Mother’s financial declaration

      showed that she earned a weekly gross income of $1393, or $72,436 a year.

      Petitioner’s Ex. 6; Appellant’s App. at 76. That amount does not include

      overtime. At the end of July 2014, Mother had grossed an additional

      $14,867.55 from overtime. Appellant’s App. at 82-83. Mother testified that in

      the past she had earned over $80,000 with overtime. Tr. at 21.




      1
        Child testified that she has tried to call Father, but it is unclear whether she was speaking generally about
      their relationship or referring specifically to the time period after she graduated. She was asked, “Now, you
      stated that your relationship with [Father] fairly well ended after high school, is that correct?” Tr. at 39. She
      replied, “Yes it didn’t, it wasn’t my choice for it to end, it’s always been, my father does not contact me, I
      have tried to call him.” Id.

      Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015                          Page 4 of 26
[8]    Father’s financial declaration showed that he had $0 income. Petitioner’s Ex.

       9; Appellant’s App. at 94. Father’s mother had ovarian cancer, and his primary

       job was to take care of her. Tr. at 49. Father and his mother each owned a 50%

       interest in a company that rents storage units. Id. at 68-69. Approximately 60%

       of the storage units were occupied and producing rental income. Id. at 69. The

       company also had two rental locations. Id. at 68. One of the company’s rental

       locations was lost to a fire in 2010. Id. at 46. Another location was leased to a

       restaurant, but the restaurant failed. Id. at 46-47. Father performed

       maintenance for the company. The company’s rental income was held in a

       joint bank account with his mother. Father had monthly expenses of $3249.30,

       which were paid from this account. Appellant’s App. at 96. Father earns some

       money selling things on Craigslist.


[9]    Mother testified that the annual cost to attend Butler was approximately

       $49,000 per year. Tr. at 25. Child’s scholarships, grants, and financial aid

       covered about half that expense. Id. The actual cost of her first year at Butler

       was just under $23,000. Id. at 25-26; Petitioner’s Ex. 4. Child testified that the

       annual cost to attend Ball State University, where she had also been accepted,

       was approximately $22,000, and her scholarships, grants, and financial aid

       would have covered about half the cost. Tr. at 38.


[10]   On December 5, 2014, the trial court issued an order finding Father in

       contempt for failing to pay child support and his share of medical expenses. It

       found that Father owed $1630 in child support and $1612 for medical expenses

       and ordered him to pay these amounts within thirty days. As a sanction for his

       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015   Page 5 of 26
       contempt, the court ordered Father to pay $2000 of Mother’s attorney’s fees.

       The trial court also found that Child, being over the age of nineteen, was

       emancipated. With regard to college expenses, the trial court found that Father

       “earns at least $3249 per month” and is voluntarily underemployed as he has

       chosen to care for his mother rather than seek additional employment or tend to

       the businesses that are currently paying his bills. Appellant’s App. at 21. The

       trial court ordered that Child, Mother, and Father each be responsible for one-

       third of Child’s college expenses. The trial court further ordered that Child’s

       portion could be satisfied with her scholarships, grants, and work-study, and if

       these sources exceeded her portion, the surplus was to be applied toward

       reducing the total cost. The remaining balance was to be divided equally

       between Mother and Father. Father appeals.


                                       Discussion and Decision
[11]   The trial court entered findings of fact and conclusions thereon sua sponte.

               Sua sponte findings only control issues that they cover, while a general
               judgment standard applies to issues upon which there are no findings.
               We may affirm a general judgment with findings on any legal theory
               supported by the evidence. As for any findings that have been made,
               they will be set aside only if they are clearly erroneous. A finding is
               clearly erroneous if there are no facts in the record to support it, either
               directly or by inference.

       Eisenhut v. Eisenhut, 994 N.E.2d 274, 276 (Ind. Ct. App. 2013) (citations

       omitted).




       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015        Page 6 of 26
[12]   Also, because we are dealing with family law matters, appellate review is

       conducted with “‘a preference for granting latitude and deference to our trial

       judges.’” Kicken v. Kicken, 798 N.E.2d 529, 532 (Ind. Ct. App. 2003) (quoting

       In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). “An appellate

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

       educational expenses for an abuse of discretion.” Hirsch v. Oliver, 970 N.E.2d

       651, 662 (Ind. 2012). The trial court abuses its discretion when its decision is

       “against the logic and effect of the facts and circumstances” before it. Id. In

       determining whether the trial court abused its discretion, we do not reweigh the

       evidence or judge the credibility of witnesses, and we consider only the

       evidence and reasonable inferences favorable to the judgment. Lovold v. Ellis,

       988 N.E.2d 1144, 1150 (Ind. Ct. App. 2013).


         Section 1 – The trial court’s findings of fact are adequate for
                                appellate review.
[13]   As a threshold matter, Father contends that the parties did not submit verified

       postsecondary education worksheets and the trial court’s findings are

       inadequate to justify and explain its judgment, and therefore remand is

       necessary for the trial court to enter more complete findings or to obtain the

       parties’ verified postsecondary education worksheets. In support, Father cites

       Quinn v. Threlkel, 858 N.E.2d 665, 670-71 (Ind. Ct. App. 2006), in which

       another panel of this Court concluded that remand was necessary because the

       trial court’s findings were inadequate. There, the trial court made general

       findings setting each parent’s percentage share of the child’s college expenses

       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015   Page 7 of 26
       and forbidding the child from taking out any additional student loans. Id. at

       671. On appeal, the Quinn court noted that there were no findings regarding the

       estimated cost of the college, what percentage of the cost should be borne by the

       child, and what type of financial aid she was expected to receive. Id. The

       Quinn court placed particular emphasis on the omission of any requirement that

       the child apply for financial aid. Id. Finally, the Quinn court also noted that the

       trial court’s order did not mention that the child was attending a private college

       and the higher expense that entails. Id.


[14]   In this case, the trial court’s findings are more comprehensive than those in

       Quinn. Here, the trial court made findings regarding Father’s income and

       Child’s scholarships and financial aid, and the order requires Child to be

       responsible for at least one-third of her own college expenses. Appellant’s App.

       at 21-22. Additional findings would have been welcome and facilitated our

       review. However, facts necessary to our review were presented as evidence and

       are not in dispute on appeal, and therefore the absence of postsecondary

       education worksheets is not detrimental to a meaningful review. The purpose

       of a postsecondary education worksheet is to assist the court in determining the

       appropriate obligation of each parent toward college expenses based upon his or

       her share of their total income after contribution from the student toward those

       expenses. Ind. Child Support Guideline 8(c). The worksheet shows each

       parent’s percentage share of their total combined income, educational costs

       including tuition, room and board, books, and fees, and the amounts the

       student receives in scholarships and other financial aid. Here, Mother and


       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015   Page 8 of 26
       Father submitted verified financial declarations to the trial court. Also,

       evidence was submitted as to the cost of attending Butler and the amount that

       Child has received in scholarships and other financial aid, and the parties do

       not dispute these amounts on appeal. Under these circumstances, the trial

       court’s findings are adequate for our review.


              Section 2 - Father has waived the argument that Child
                                  repudiated him.
[15]   Father argues that the trial court erred in ordering him to pay any of Child’s

       college expenses because she repudiated him. Father failed to present this

       argument to the trial court, and therefore it is waived. See Akiwumi v. Akiwumi,

       23 N.E.3d 734, 741 (Ind. Ct. App. 2014) (stating that appellant who raises issue

       for first time on appeal waives issue).


[16]   Waiver notwithstanding, Father’s argument is unavailing. “Repudiation is

       defined as a complete refusal to participate in a relationship with the parent.”

       Lovold, 988 N.E.2d at 1150. “Under certain circumstances, repudiation will

       obviate a parent’s obligation to pay certain expenses for the child, including

       college expenses.” Scales v. Scales, 891 N.E.2d 1116, 1119 (Ind. Ct. App. 2008).

       “[W]here a child, as an adult over eighteen years of age, repudiates a parent,

       that parent must be allowed to dictate what effect this will have on his or her

       contribution to college expenses for that child.” McKay v. McKay, 644 N.E.2d

       164, 166 (Ind. Ct. App. 1994). “‘By college age, children of divorced parents

       must be expected to begin to come to terms with the reality of their family’s

       situation. They must begin to realize that their attitudes and actions are their

       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015   Page 9 of 26
       individual responsibilities.’” Id. at 167 (quoting Milne v. Milne, 556 A.2d 854,

       861 (Pa. Super. Ct. 1989)). “‘[A]dult children who willfully abandon a parent

       must be deemed to have run the risk that such a parent may not be willing to

       underwrite their educational pursuits.’” Id. (quoting Milne, 556 A.2d at 865).


[17]   Here, the trial court did not make a specific finding on whether Child

       repudiated Father, and therefore we may affirm on any legal theory supported

       by the evidence. Whether a child has repudiated a parent is a fact-sensitive

       determination. Although the record contains evidence that could have

       supported a finding that Child repudiated Father, there is also evidence that

       would support a determination that Child did not repudiate Father. And under

       our standard of review, we may consider only the evidence favorable to the trial

       court’s judgment. That evidence shows that after Child turned eighteen but

       before she graduated from high school, she and Father had dinner every one or

       two weeks. She provided Father with one of six tickets to her graduation, and

       he attended. She testified that even though they did not have contact after her

       graduation, she wanted to maintain a relationship with Father, but he never

       called or tried to contact her. Based on this evidence and our deference to the

       trial court in family law matters, we cannot say that the trial court’s decision to

       require Father to contribute to Child’s college expenses is against the logic and

       effect of the facts and circumstances before it. Therefore, we affirm the

       requirement that Father pay part of Child’s college expenses.




       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015   Page 10 of 26
             Section 3 – The trial court did not commit clear error by
           requiring Father to pay half the remaining balance of Child’s
                                 college expenses.
[18]   The trial court found that Child would be responsible for one-third of her

       college expenses. Father challenges the trial court’s decision to order him to

       pay half the remaining balance. 2 We review the trial court’s apportionment of

       college expenses under a clearly erroneous standard. Carr v. Carr, 600 N.E.2d

       943, 945 (Ind. 1992); Winslow v. Fifer, 969 N.E.2d 1087, 1092 (Ind. Ct. App.

       2012), trans. denied (2013). Therefore, we will affirm the trial court unless its

       order “‘is clearly against the logic and effect of the facts and circumstances

       which were before’ the court.” Marriage of Hensley v. Hensley, 868 N.E.2d 910,

       913 (Ind. Ct. App. 2007) (quoting Carr, 600 N.E.2d at 945). In determining

       whether the trial court’s decision is clearly erroneous, we consider only the

       evidence and reasonable inferences favorable to the judgment without

       reweighing evidence or judging witness credibility. Winslow, 969 N.E.2d at

       1092.

                Under Indiana law, there is no absolute legal duty on the part of
                parents to provide a college education for their children. 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




       2
         Mother asserts that Father waived this argument because he failed to report any income and therefore
       invited any error. See Reinhart v. Reinhart, 938 N.E.2d 788, 791 (Ind. Ct. App. 2010) (“[A] party may not take
       advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or
       misconduct.”). We disagree. The fact that Father prepared a financial declaration showing a weekly gross
       income of zero and testified to the same does not constitute waiver with regard to whether the trial court’s
       determination of his share of Child’s college expenses was erroneous.

       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015                      Page 11 of 26
               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. 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 the
               child’s college expenses.

       Hinesley-Petry v. Petry, 894 N.E.2d 277, 280-81 (Ind. Ct. App. 2008) (quoting

       McKay, 644 N.E.2d at 166), trans. denied (2009).


[19]   Indiana Code Section 31-16-6-2(a) provides that a child support order or an

       educational support order may include

               (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.

[20]   “[C]ollege expenses are in the nature of child support.” Panfil v. Fell, 19 N.E.3d

       772, 778 (Ind. Ct. App. 2014), trans. denied (2015). “[A]lthough a trial court has

       broad discretion to tailor a child support award in light of the circumstances

       before it, ‘this discretion must be exercised within the methodological

       framework established by the guidelines.’” Quinn, 858 N.E.2d at 670 (quoting


       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015            Page 12 of 26
       McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1251-52 (Ind. 1994)). “This principle

       applies with equal force to orders regarding post-secondary education expenses.” Id.

       (emphasis added). Indiana Child Support Guideline 8(b) provides that “the

       court should consider post-secondary education to be a group effort, and 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.”


[21]   In considering the factors set forth in Section 31-16-6-2(a), we observe that the

       evidence shows that Child received “straight As, maybe a B or so.” Tr. at 33.

       Thus, she has the aptitude and ability to pursue postsecondary education. She

       is also able to contribute to her college expenses with her scholarships, grants,

       and other financial aid, and the trial court found that she should be responsible

       for at least one-third of her own college expenses. The trial court further found

       that if her financial aid, not including loans, exceeds one-third of the total costs,

       those funds shall be used to reduce the total balance of her college expenses

       before allocation between Mother and Father.


[22]   In addition to the child’s aptitude and ability to contribute to the costs, we also

       consider the ability of each parent to meet the costs. “[C]hildren should receive

       the same proportion of parental income after a dissolution as they would have

       received had the family remained intact.” Carr, 600 N.E.2d at 946. Absent an

       evidentiary justification in the record and a finding by the trial court that a

       proportional obligation would be unfair, the Child Support Guidelines require

       that apportionment of educational expenses between the parents be roughly

       proportional to their share of income. Id.

       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015    Page 13 of 26
[23]   Here, the trial court found that Father “earns at least $3,249.00 per month,” or

       $38,988 per year. Appellant’s App. at 21. Father’s financial declaration

       reported $0 income. Apparently, the trial court determined Father’s income

       based on the evidence that his monthly expenses of $3249 were paid with his

       company’s rental income. There was no evidence regarding his company’s

       earnings. The evidence Mother submitted shows that she earns at least $72,436

       per year, which does not include overtime. Petitioner’s Ex. 6. Their combined

       yearly income is $111,424. Father earns 35% of the total income, and Mother

       earns 65%. Yet, the trial court ordered each parent to pay 50% of the balance

       remaining after Child’s scholarships and other financial aid were applied. This

       does not comport with the Child Support Guidelines.


[24]   However, the trial court’s departure from the Child Support Guidelines may be

       explained by its finding that Father was voluntarily underemployed, from

       which it likely determined that Father’s potential income was comparable to

       Mother’s. Indiana Child Support Guideline 3(A)(3) states,

               If a court finds a parent is voluntarily unemployed or underemployed
               without just cause, child support shall be calculated based on a
               determination of potential income. A determination of potential
               income shall be made by determining employment potential and
               probable earnings level based on the obligor’s work history,
               occupational qualifications, prevailing job opportunities, and earnings
               levels in the community.

       “Potential income may be determined if a parent has no income, or only

       means-tested income, and is capable of earning income or capable or earning

       more.” Ind. Child Support Guideline 3(A)(3), cmt 2c. “But the Guidelines do

       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015    Page 14 of 26
       not require or encourage parents to make career decisions based strictly upon

       the size of potential paychecks, nor do the Guidelines require that parents work

       to their full economic potential.” Sandlin v. Sandlin, 972 N.E.2d 371, 375 (Ind.

       Ct. App. 2012). “Obviously, a great deal of discretion will have to be used in

       this determination.” Ind. Child Support Guideline 3(A)(3), cmt 2c.


[25]   One purpose of potential income is to discourage a parent from taking a lower

       paying job to avoid the payment of significant support. Id. On some occasions,

       this Court has rephrased this principle as follows, “A trial court has wide

       discretion with regard to imputing income to ensure the child support obligor

       does not evade his or her support obligation.” Miller v. Sugden, 849 N.E.2d 758,

       761 (Ind. Ct. App. 2006), trans. denied; see also Kondamuri v. Kondamuri, 852

       N.E.2d 939, 950 (Ind. Ct. App. 2006) (“The trial court has discretion to impute

       potential income to a parent if it is convinced the parent’s underemployment

       ‘has been contrived for the sole purpose of evading support obligations.’”)

       (quoting In re Marriage of Turner v. Turner, 785 N.E.2d 259, 265 (Ind. Ct. App.

       2003)); Apter v. Ross, 781 N.E.2d 744, 761 (Ind. Ct. App. 2003) (“With regards

       to imputing income, the trial court enjoys wide discretion to ensure the child

       support obligor does not evade his support obligation.”), trans. denied. We

       caution that this rephrasing should not be interpreted to mean that potential

       income may not be imputed unless the court finds that the parent is avoiding

       the payment of significant child support. While the Guidelines clearly indicate

       that a parent’s avoidance of child support is grounds for imputing potential

       income, it is not a necessary prerequisite. For example, the relevant


       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015   Page 15 of 26
       commentary states, “When a parent is unemployed by reason of involuntary

       layoff or job termination, it still may be appropriate to include an amount in

       gross income representing that parent’s potential income.” Ind. Child Support

       Guideline 3(A)(3), cmt 2c(4). Thus, it is within the trial court’s discretion to

       impute potential income even under circumstances where avoiding child

       support is not the reason for a parent’s unemployment.


[26]   We also note that another panel of this Court has stated, “Where a parent is

       unemployed or underemployed for a legitimate purpose other than avoiding

       child support, there are no grounds for imputing potential income.” Trabucco v.

       Trabucco, 944 N.E.2d 544, 550 (Ind. Ct. App. 2011) (citing Kondamuri, 852

       N.E.2d at 950), trans. denied. 3 We believe that this statement is overbroad and is

       unsupported by the Guidelines. Indeed, our supreme court has emphasized,

       “While legitimate reasons may exist for a parent to leave one position and take

       a lower paying position other than to avoid child support obligations, this is a

       matter entrusted to the trial court and will be reversed only for an abuse of

       discretion.” Bojrab v. Bojrab, 810 N.E.2d 1008, 1015 (Ind. 2004). The Bojrab

       court made this statement in the context of addressing the husband’s argument

       that the trial court erred by declining to retroactively modify his child support

       and maintenance. The Bojrab court rejected the husband’s challenge to the trial

       court’s decision, based on the following reasoning:




       3
        Kondamuri in turn cited Lambert v. Lambert, 839 N.E.2d 708 (Ind. Ct. App. 2005), trans. granted (2006),
       which our supreme court vacated. 861 N.E.2d 1176 (Ind. 2007).

       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015                      Page 16 of 26
               [T]he trial court found that the husband voluntarily left one position
               for another and that he could have remained at his prior position, that
               he would have taken financial measures to maintain the standard of
               living for his wife and children during the transition, and that he had
               the capacity to finance the support and maintenance during this time.

       Id. But see Abouhalkah v. Sharps, 795 N.E.2d 488, 491 (Ind. Ct. App. 2003)

       (concluding that trial court erred in finding father voluntarily underemployed

       where employer moved his job to Minnesota, but he refused to move so that he

       could stay near his children and had been searching for comparable

       employment); In re Paternity of E.M.P., 722 N.E.2d 349, 352 (Ind. Ct. App.

       2000) (concluding that trial court erred in finding father voluntarily

       underemployed where father had been seeking job change due to rigorous

       physical nature of original job, which had caused physical injury, and new job

       had better benefits and would eventually produce more income).


[27]   Here, the trial court found that Father “is voluntarily underemployed, as he has

       elected to serve as a caretaker for his mother rather than seek additional

       employment, or tend to the businesses that are currently paying his bills.”

       Appellant’s App. at 21. Father testified that his mother has ovarian cancer and

       that he is her primary caregiver, but there is no evidence regarding the level of

       care that she needed or what Father actually provided and no evidence that

       Father was unable to pursue additional employment or tend to his businesses.

       Moreover, although Father reported $0 income, his company paid all his living

       expenses. It was not unreasonable for the trial court to infer that he used his

       company funds for additional purchases. We conclude that the trial court did

       not abuse its discretion in finding that Father was voluntarily underemployed
       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015    Page 17 of 26
       and imputing potential income to him. See Meredith v. Meredith, 854 N.E.2d

       942, 948 (Ind. Ct. App. 2006) (concluding that trial court properly imputed

       income for voluntary unemployment where father voluntarily took early

       retirement and was not seeking employment); Williamson v. Williamson, 825

       N.E.2d 33, 44 (Ind. Ct. App. 2005) (“Given [f]ather’s failure to submit a

       calculation of his gross receipts minus ordinary and necessary expenses

       resulting from his self-employment and his argument that he has no income, we

       cannot say that the trial court’s imputation of income to [f]ather is clearly

       erroneous.”); Turner, 785 N.E.2d at 265-66 (concluding that trial court properly

       imputed potential income where father worked part time even though he had

       skill and ability to work full time based on his prior work history); Macher v.

       Macher, 746 N.E.2d 120, 127 (Ind. Ct. App. 2001) (concluding that trial court

       properly imputed income where husband was self-employed in construction

       work and used time off to pursue hunting and fishing and company had offered

       him full-time employment with greater earning ability). Accordingly, we affirm

       the trial court’s decision to require Father to pay half the remaining balance of

       Child’s college expenses.


          Section 4 - The trial court abused its discretion by basing
        Father’s college contribution on the cost of a private college.
[28]   Father contends that the trial court abused its discretion by requiring him to

       assist with the costs of Child’s attendance at a private university rather than a

       public university. Indiana Child Support Guideline 8(b) provides that “[t]he

       court may limit consideration of college expenses to the cost of state supported

       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015   Page 18 of 26
       colleges and universities or otherwise may require that 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, 894 N.E.2d at 281.


[29]   The annual cost to attend Butler is approximately $49,000 per year. Tr. at 25.

       Child’s scholarships, grants, and financial aid covered about half that expense.

       Id. The actual cost of her first year at Butler was just under $23,000. Id. at 25-

       26; Petitioner’s Ex. 4. In addition to Butler, Child applied to and was accepted

       by Indiana University, Ball State University, and DePauw University. She also

       received a financial aid package from each school. The annual cost to attend

       Ball State is approximately $22,000, and Child’s scholarships, grants, and

       financial aid would have covered about half that cost or about $11,000. Tr. at

       38. Thus, the actual annual cost for Child to attend Ball State would have been

       slightly less than half the actual cost to attend Butler.


[30]   Child chose Butler because she thought that it offered “a better education and

       it’s where [she] wanted to go.” Id. at 33. However, there is no evidence that

       Butler offered a special curriculum. In addition, there is no evidence that Child

       discussed her decisionmaking process with Father. The evidence shows that

       she simply informed him that she was going to go to Butler and asked him to

       help pay for it. Accordingly, we conclude that the trial court’s decision to order

       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015   Page 19 of 26
       Father to contribute to Child’s college expenses based on the cost of a private

       university rather than a public university is against the logic and effect of the

       circumstances before it. Cf. Million v. Swager, 807 N.E.2d 140, 145-46 (Ind. Ct.

       App. 2004) (concluding that trial court did not err by ordering father to

       contribute toward child’s education at Cornell University where it capped his

       contribution at $4000 per year, there was no evidence of expenses that child

       would incur at an in-state, public university, and father’s complaint that the

       decision was made without him was misplaced because child tried to discuss

       decision with him but father failed to return child’s calls and father admitted

       that he did not communicate with mother regarding child’s upbringing).

       Therefore, we remand with instructions to order that Father’s obligation toward

       Child’s college expenses be based on the costs of a public university.


            Section 5 – The trial court erred by ordering Father to pay
           Child’s college expenses incurred before Mother’s motion for
                             college expenses was filed.
[31]   Father contends that the trial court erred by ordering him to contribute to

       Child’s college expenses incurred before Mother’s motion for college expenses

       was filed. 4 Child had already completed one semester of college before

       February 18, 2014, when Mother filed her motion for college expenses. Father




       4
         Mother argues that Father waived this issue by failing to object to her request for college expenses. We
       disagree. Mother did not specifically request expenses that Child incurred before the motion for college
       expenses was filed. In other words, the issue was not presented with sufficient specificity that the failure to
       object results in waiver.

       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015                         Page 20 of 26
       argues that a modification of child support cannot be applied to a date before

       the motion for modification was filed and likewise an award of college expenses

       cannot be applied to a date before the motion for college expenses was filed.


[32]   With regard to child support, we observe that the “‘general rule in Indiana is

       that retroactive modification of support payments is erroneous if the

       modification relates back to a date earlier than the filing of the petition to

       modify.’” Sexton v. Sedlak, 946 N.E.2d 1177, 1183-84 (Ind. Ct. App. 2011)

       (quoting Becker v. Becker, 902 N.E.2d 818, 820 (Ind. 2009)), trans. denied.

       Indiana Code Section 31-16-16-6(b) provides,

               A court with jurisdiction over a support order may modify an obligor’s
               duty to pay a support payment that becomes due:
                        (1) after notice of the petition to modify the support order has
                        been given either directly or through the appropriate agent to:
                                 (A) the obligee; or
                                 (B) if the obligee is the petitioner, the obligor; and
                        (2) before a final order concerning the petition for modification
                        is entered.

[33]   Thus, the trial court would not have had the authority to modify Father’s child

       support obligation before February 18, 2014. See Ogle v. Ogle, 769 N.E.2d 644,

       648 (Ind. Ct. App. 2002) (“‘[O]nce funds have accrued to a child’s benefit under

       a court order, the court may not annul them in a subsequent proceeding.’”)

       (quoting Nill v. Martin, 686 N.E.2d 116, 118 (Ind. 1997)).


[34]   In some circumstances, we have likened the payment of college expenses to

       child support. See Vagenas v. Vagenas, 879 N.E.2d 1155, 1159 (Ind. Ct. App.

       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015          Page 21 of 26
       2008) (concluding that payment of college expenses equates to payment of child

       support for purposes of determining whether father’s payments toward child’s

       college expenses in lieu of child support payments was in substantial

       compliance with child support order), trans. denied; Borum v. Owens, 852 N.E.2d

       966, 969 (Ind. Ct. App. 2006) (noting that “[o]rders requiring payment of

       college expenses are modifiable because college expenses are in the nature of

       child support” for purposes of determining whether an order requiring payment

       of college expenses could be modified pursuant to Ind. Code § 31-16-8-1(1)).

       However, we are not persuaded that the bright-line rule of Section 31-16-16-6(b)

       should be extended to the initial order requiring payment of college expenses.


[35]   “[A] child support order and an educational support order are separate and

       distinct.” Knisely v. Forte, 875 N.E.2d 335, 340 (Ind. Ct. App. 2007). The

       Knisely court made this observation in the context of discussing the factors to be

       considered in determining whether the trial court erred in apportioning college

       expenses. The Knisely court noted that “[e]ducational support orders must take

       into account the child’s aptitude and ability; the child’s reasonable ability to

       contribute to educational expenses through work, loans, and obtaining other

       sources of financial aid reasonably available to the child and each parent; and

       the ability of each parent to meet these expenses.” Id. at 341. Thus, the

       considerations involved in determining an award of college expenses are not the

       same as those involved in determining child support. Furthermore, college

       costs and the child’s ability to contribute to those costs will oftentimes be

       difficult to determine before a child starts school. For these reasons, we decline


       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015   Page 22 of 26
       to hold that an initial order requiring payment of college expenses can never be

       applied prior to the date of the motion for college expenses. 5


[36]   Nevertheless, there are circumstances present in this case that lead us to

       conclude that retroactive application of Father’s college contribution prior to

       February 18, 2014, is improper. Child began college in the fall of 2013, while

       she was still eighteen years old. Father’s duty to pay child support did not

       terminate until Child became emancipated at age nineteen. See Ind. Code § 31-

       16-6-6(a) (“The duty to support a child under this chapter, which does not

       include support for educational needs, ceases when the child becomes

       nineteen.”). Thus, Father’s child support obligation remained in force during

       child’s first semester. Child turned nineteen on February 21, 2014, just three

       days after Mother filed her motion. The trial court ordered Father to contribute

       to Child’s fall 2013 college expenses, but he still had a duty to pay child support

       during that time.


[37]   Indiana Code Section 31-16-6-2(b) provides,

               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.




       5
         We do not suggest that Indiana Code Section 31-16-16-6(b) does not apply to the subsequent modification
       of a college expense order.

       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015                   Page 23 of 26
       The Guidelines also provide,

               The impact of an award of post-secondary educational expenses is
               substantial upon the custodial and non-custodial parent and a
               reduction of the Basic Child Support Obligation attributable to the
               child in question will be required when the child resides on campus or
               otherwise is not with the custodial parent.

       Ind. Child Support Guideline 8(b). Although a trial court has the authority to

       order college expenses and child support, “[w]hen both orders are entered, the

       Indiana Child Support Guidelines specifically require a reduction in child

       support for the time the child is living away from home for college.” Lovold,

       988 N.E.2d at 1152. The trial court’s decision to order Father to contribute to

       Child’s fall 2013 college expenses results in duplication of Father’s child

       support payment. “Duplicative support and college expense orders should be

       avoided.” Stover v. Stover, 645 N.E.2d 1109, 1110 (Ind. Ct. App. 1995) (citing

       Carr, 600 N.E.2d at 946). Therefore, we reverse the portion of the order that

       requires Father to pay a share of Child’s college expenses incurred before

       Mother’s motion was filed.


           Section 6 – The trial court did not abuse its discretion by
           ordering Father to pay $2000 of Mother’s attorney’s fees.
[38]   Finally, Father argues that the trial court abused its discretion by ordering him

       to pay $2000 toward Mother’s attorney’s fees. The trial court ordered Father to

       pay a portion of Mother’s attorney’s fees “as a sanction for his contempt.”

       Appellant’s App. at 25. “The trial court has inherent authority to award



       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015   Page 24 of 26
       attorney fees for civil contempt.” Winslow, 969 N.E.2d at 1093. 6 “No statutory

       sanction is needed as a court’s power to enforce compliance with its orders and

       decrees duly entered is inherent.” Crowl v. Berryhill, 678 N.E.2d 828, 831 (Ind.

       Ct. App. 1997). “Without regard to economic resources, once a party is found

       in contempt, the trial court has ‘the inherent authority to compensate the

       aggrieved party for losses and damages resulting from another’s contemptuous

       actions,’” including “the award of attorney’s fees.” Scoleri v. Scoleri, 766 N.E.2d

       1211, 1222 (Ind. Ct. App. 2002) (quoting Adler v. Adler, 713 N.E.2d 348, 355

       (Ind. Ct. App. 1999)). We review the trial court’s ruling on a contempt petition

       for an abuse of discretion. Topolski v. Topolski, 742 N.E.2d 991, 994 (Ind. Ct.

       App. 2001). “When reviewing a contempt order, we will neither reweigh the

       evidence nor judge the credibility of witnesses.” Id. We will affirm the trial

       court’s decision unless it is against the logic and circumstances before it and we

       have a firm and definite belief that a mistake has been made. Id.


[39]   Mother’s attorney submitted an invoice for services rendered, and the total fees

       were $2902.56. Father contends that because he acknowledged that he was

       delinquent and did not challenge the amount of his child support arrearage,

       very little of Mother’s attorney’s fees were incurred in the maintenance of the

       contempt action, and therefore the $2000 sanction was unreasonable. Even

       though Father did not challenge his arrearage at the hearing, Mother’s attorney



       6
         Father mistakenly addresses this issue as though the trial court awarded attorney’s fees pursuant to Indiana
       Code Section 31-16-11-1, which authorizes the court to order a party to pay the other party’s court costs
       including attorney’s fees in maintaining or defending an action for child support.

       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015                      Page 25 of 26
       still had to file for contempt and prepare for the contempt hearing with no

       knowledge as to what Father’s position would be. We cannot say that the

       $2000 sanction was unreasonable. Therefore, we affirm the trial court’s order

       requiring Father to pay $2000 toward Mother’s attorney’s fees.


                                                  Conclusion
[40]   We reject Father’s contention that the trial court erred by failing to find that

       Child repudiated him. We affirm the trial court’s decision to require Father to

       pay 50% of the remaining balance of Child’s college expenses. Further, we

       affirm the trial court’s order requiring Father to pay $2000 toward Mother’s

       attorney’s fees. We reverse that portion of the order basing Father’s

       contribution to Child’s college expenses on the cost of a private university and

       remand for Father’s obligation to be based on the costs of a public university.

       We also reverse the portion of the order that requires Father to pay a share of

       Child’s college expenses incurred before Mother’s motion for college expenses

       was filed. We remand for the trial court to order Father to contribute to Child’s

       college expenses consistent with this opinion.


[41]   Affirmed in part, reversed in part, and remanded.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 29A02-1501-JP-9 | September 23, 2015   Page 26 of 26
