Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                              FILED
                                                              Jul 27 2012, 9:32 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                      CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                             ATTORNEY FOR APPELLEE:

LUCILLE P. UTTERMOHLEN                              J. DAVID ROELLGEN
Monticello, Indiana                                 Emison Doolittle Kolb & Roellgen LLP
                                                    Vincennes, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA
CRAIG WATTS,                                        )
                                                    )
       Appellant-Respondent,                        )
                                                    )
               vs.                                  )     No. 42A01-1111-DR-523
                                                    )
BETTY (WATTS) LANKFORD,                             )
                                                    )
       Appellee-Petitioner.                         )


                     APPEAL FROM THE KNOX SUPERIOR COURT
                        The Honorable W. Timothy Crowley, Judge
                             Cause No. 42D01-9411-DR-76

                                          July 27, 2012

             MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
       Craig Watts (Father) appeals the trial court’s order to pay Betty Lankford (Mother)

$32,067.07 to satisfy a child support arrearage, and $3,000 to Mother’s attorney for attorney

fees as a penalty based on its finding he was in contempt for non-payment of child support.

We affirm.

                       FACTS AND PROCEDURAL HISTORY

       Father and Mother divorced on July 30, 1997. There were three minor children of the

marriage: Ryan, born January 30, 1984; Jeffrey, born February 24, 1988; and Tyler, born July

20, 1990. At dissolution, the court granted Mother custody and Father visitation. The court

ordered Father to pay $503.00 per week in child support for the three children. The trial

court found Ryan “has Down’s syndrome and the parents acknowledge that Ryan will never

be self-sufficient and will require custodial care and child support past age 21.” (App. at 60-

61.)

       On August 19, 1998, the trial court granted Father’s petition to reduce his child

support obligation to $400.00 per week. Beginning in 2006, Father paid a portion of the

college expenses for Jeffrey, and later for Tyler. In February 2009, Father began paying only

$133.33 per week to mother in child support. Father testified he calculated the new amount

based on his belief he was only required to pay child support for Tyler, who was under

twenty-one years old at the time. Therefore, Father reasoned, he could reduce his child

support payment by 2/3 to cease his support for Ryan and Jeffrey.

       On December 15, 2009, Mother filed a verified petition for contempt citation,

modification of child support, college expenses, and health insurance. After a hearing, the

                                              2
trial court found Father had not abided by the child support order. It held Father in contempt

and ordered him to pay arrearages of $32,067.07 and $3,000.00 in Mother’s attorney fees. It

emancipated Jeffrey and Tyler, and ordered Father to pay $77 per week in support for Ryan.

                             DISCUSSION AND DECISION

       Whether a party is in contempt of court is a matter within the trial court’s discretion,

and its decision will be reversed only for an abuse of that discretion. Norris v. Pethe, 833

N.E.2d 1024, 1029 (Ind. Ct. App. 2005). A court abuses its discretion when its decision is

against the logic and effect of the facts and circumstances before the court or is contrary to

law. Mitchell v. Mitchell, 871 N.E.2d 390, 394 (Ind. Ct. App. 2007). When reviewing a

contempt determination, we will not reweigh evidence or judge witness credibility. Id. We

will affirm unless, after a review of the entire record, we have a firm and definite belief the

trial court made a mistake. Id. Child support obligations in Indiana have long been

enforceable by contempt proceedings. Id. Contempt is not appropriate unless the parent has

the ability to pay the support due and his or her failure to do so was willful. Id.

       Father argues the trial court should not have found him in contempt because even

though he reduced the amount of child support paid weekly to Mother, he paid college

expenses in excess of the amount required by the child support order. In February 2009,

when Father began paying $133.33, Ryan was over twenty-one years old, but still living with

Mother due to his disability; Jeffrey was twenty-one years old and in college; and Tyler was




                                              3
not yet twenty-one years old. When asked why he changed the amount of support paid,

Father stated:

        I had learned that in Indiana and most states that the age of emancipation is age
        21 and I only learned that right at the time Jeffrey became 21, and so, at the
        time, I contacted [Mother] because, Your Honor, when we were here in ’98
        when we left, you talked to both of us and said I hope I don’t see you all back
        here in this Court
                                           *****
        Anyway, you said any future problems or complaints I hope you two can work
        these things out without having to come to Court. So, I remembered that and I
        contacted [Mother] by email but also there was at least one or maybe two
        phone calls about the reduction in support, because two of them were already
        over the age of 21 and I had already been paying Ryan’s for five extra years, at
        that point. So that’s why I decided to . . . and I asked her if that would . . . was
        doable and I told her I’m assuming you will have to run this by your attorney,
        but I’m waiting to hear your answer. So at that time I, on my own, reduced the
        payment by 2/3. I never heard back from her until I was served the papers for
        this hearing today.

(Tr. at 31-32.)

        Mother testified she and Father did not agree to change the amount of support, and

when they discussed the cost of Tyler and Jeffrey’s college they never agreed those payments

would be in lieu of the support owed pursuant to the court’s order. Father argues the money

he paid towards Tyler and Jeffrey’s college educations should be considered child support,1


1
  Father relies on Vagenas v. Vagenas, 879 N.E.2d 1155, 1160 (Ind. Ct. App. 2008), reh’g denied, where we
held the non-custodial parent was not in contempt for failing to pay child support when he instead paid college
expenses for the child pursuant to an agreement with Mother to do so.
  In Vagenas, the parties, Karen and William, divorced in 1998. The trial court ordered William to pay $500 a
month in child support. William paid $500 per month until their child left for college, at which time the parties
agreed William would pay one-half of the college expenses and child support when the child was living with
Karen during winter and summer breaks. We held:
         Here, the parties entered into an agreement and abided by that agreement for approximately
         eighteen months before Mother filed her contempt petition. Father reasonably relied on the
         parties’ agreement in failing to pay court-ordered child support to Mother while he was
         paying fifty percent of son’s college expenses. Importantly, under the parties’ agreement
         Father paid $9,201.73, which is more than the $8500 he was required to pay during that time
                                                       4
such that he did not willfully fail to pay child support since February 2009.

        A party may be found in contempt of a trial court’s order if he willfully disobeys it.

Ind. Code § 34-47-3-1. It is well-established a non-custodial parent may not unilaterally

modify a child support obligation pursuant to a gross order of support unless a court orders a

modification or all of the children are emancipated or turn twenty-one years old. Ogle v.

Ogle, 769 N.E.2d 644, 648 (Ind. Ct. App. 2002). We held in Kirchoff v. Kirchoff, 619 N.E.2d

592, 596 (Ind. Ct. App. 1993):

        [I]f one or more unemancipated children are also covered by the support order,
        the obligated parent’s duty to support the remaining minor children according
        to the terms of the original support order continues, even after emancipation of
        one or more of the children, until the parent’s duty to support the minor
        children is modified by the trial court. Therefore, as long as there remains one
        unemancipated minor child, the parent is required to make support payments in
        the manner, amount, and at the times required by the original support order. If
        a parent desires a reduction of the undivided support order as children become
        emancipated, the parent must petition the trial court to modify its order.

(internal citations omitted). Thus, regardless of the amounts Father paid for Tyler and

Jeffrey’s college educations, he willfully disobeyed the order to pay Mother $400 per week in

child support when he unilaterally changed the manner in which he paid by paying only




         period under the child support order. Because college expenses are in the nature of child
         support and there was no reduction in the amount of child support, we conclude that Father’s
         payment of college expenses substantially complied with the child support order.
Id. at 1160. Vagenas is distinguishable. The support order before us today provided for more than one child
and there was no agreement between the parties that college money would replace child support.
                                                    5
$133.33 to Mother. The trial court did not abuse its discretion when it found him in

contempt.

       2.     Attorney Fees

       The trial court awarded Mother’s attorney $3,000 in attorney fees because it found

Father in contempt. A determination regarding attorney fees in proceedings to modify child

support is within the sound discretion of the trial court and will be reversed only on a

showing of a clear abuse of that discretion. Vandenburgh v. Vandenburgh, 916 N.E.2d 723,

731 (Ind. Ct. App. 2009). In determining whether to award attorney fees, the trial court must

consider the parties’ resources, their economic condition, their ability to engage in gainful

employment, and other factors that bear on the award’s reasonableness. Id. Misconduct by

one party that causes the opposing party to incur additional costs may also be considered. Id.

As the contempt finding was proper, the award of attorney fees was within the trial court’s

discretion. See Id. (trial court did not abuse its discretion when it ordered Father to pay a

portion of Mother’s attorney fees based on the court’s finding Father in contempt).

                                      CONCLUSION

       The trial court did not abuse its discretion when it found Father in contempt because

Father changed the manner in which he paid his gross support order for the three children

without a court order or Mother’s consent. As Father was in contempt, the trial court did not




                                              6
abuse its discretion when it ordered Father to pay a portion of Mother’s attorney fees.

Accordingly, we affirm.

      Affirmed.

BARNES, J., concurs.

FRIEDLANDER, J., dissents with separate opinion.




                                          7
                               IN THE
                    COURT OF APPEALS OF INDIANA

CRAIG WATTS                                        )
                                                   )
       Appellant-Respondent,                       )
                                                   )
              vs.                                  )      No. 42A01-1111-DR-523
                                                   )
BETTY (WATTS) LANKFORD                             )
                                                   )
       Appellee-Petitioner.                        )
                                                   )


FRIEDLANDER, Judge, dissenting

       Upon my view that the trial court’s order is inequitable, I respectfully dissent from the

decision to affirm it.

       At the heart of it, this case involves a non-custodial parent’s attempt to adapt to

changing circumstances and their impact on his and his ex-spouse’s financial obligations

concerning their children, without having to resort to a court of law to do so. The record

reflects that they had successfully done this before. Beginning in 2006 with Jeffrey’s

enrollment in college, Father and Mother struck an agreement as to how much each would

pay toward those educational expenses, and the court was not involved. Motivated in part by

the trial court’s admonition in approximately 1998 that it hoped Mother and Father would be

able to work out support matters between themselves without resorting to court, and perhaps

                                               8
encouraged by their success in dealing with the children’s college expenses, Father again

attempted to resolve the present matter without going to court.

       His attempt appears to me to have been well-intentioned and, from a layman’s

perspective, it is not substantively illogical. Incorrect, but not illogical. The primary mistake

in his attempted modification is that he effected a pro-rata reduction of an in-gross support

order based upon the incorrect assumption that the total amount of his obligation was

comprised of three equal parts, one for each of his three children – and that he could reduce

the total by one-third when he was no longer obligated to pay support for a particular child.

Of course, this is not the case. “[W]hen a court enters an order in gross, that obligation …

continues until the order is modified and/or set aside, or all the children are emancipated, or

all of the children reach the age of twenty-one[.]” Whited v. Whited, 859 N.E.2d 657, 661

(Ind. 2007). Be that as it may, Father reduced his support payment to Mother by two-thirds

on the rationale that the support he paid for Jeffrey and Tyler would be replaced by his

payment of his share of their college expenses. He advised Mother of his intentions and

reasoning and reduced his support payments accordingly. Mother waited approximately ten

months before registering an objection. Although there was no express agreement between

the parties with respect to the modification that Father implemented, her silence for the better

part of a year after he specifically proposed and implemented the change is not insignificant

and could reasonably have lead him to believe she acquiesced in the arrangement. Surely this

deserves equitable consideration when determining the amount of Father’s arrearage. See

Vagenas v. Vagenas, 879 N.E.2d 1155, 1159 (Ind. Ct. App. 2008) (“college expenses are in

                                               9
the nature of child support”) (quoting Borum v. Owens, 852 N.E.2d 966, 969 (Ind. Ct. App.

2006)) (emphasis in original), trans. denied.

       In the final analysis, the trial court determined that Father underpaid support during

the relevant time period by $32,067.07. By my calculation, during that same period of time,

Father paid approximately $29,510.00 toward Jeffrey’s and Tyler’s college expenses. For all

practical purposes, however, Father’s payment of college expenses counted for naught in the

trial court’s reasoning, and I believe the equities here dictate otherwise. Because (1) the trial

court admonished the parties on a previous occasion to work out between themselves

financial issues involving the children without resort to court, (2) the parties had thereafter

done so with respect to the payment of college expenses, (3) Father explicitly proposed an

arrangement, implemented it, and Mother failed to object and was basically incommunicado

on the subject for approximately ten months before filing a contempt petition, and (4) Father

paid more than $29,500.00 during the relevant time frame, I believe the trial court erred in

failing to consider the amount he paid in college expenses. I would reverse and remand with

instructions to calculate Father’s arrearage by subtracting the amount he paid in college

expenses from the amount he underpaid for the same period of time, and to enter an order to

pay that amount.




                                               10
