MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             Feb 24 2016, 9:03 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jonathan M. Young                                         B. Michael Macer
Law Office of Jonathan M. Young, P.C.                     Benjamin R. Aylsworth
Newburgh, Indiana                                         Biesecker Dutkanych & Macer,
                                                          LLC
                                                          Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of                                    February 24, 2016
Ember Mazzotti-Dill                                       Court of Appeals Case No.
                                                          87A01-1506-JP-725
                                                          Appeal from the Warrick Superior
Sherry Mazzotti,                                          Court
Appellant-Petitioner,                                     The Honorable J. Zach Winsett,
                                                          Special Judge
        v.
                                                          Trial Court Cause No.
                                                          87D02-1310-JP-224
Heath Dill,
Appellee-Respondent




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016   Page 1 of 15
                                              Case Summary
[1]   Sherry Mazzotti (“Mother”) appeals the trial court’s order establishing Heath

      Dill’s (“Father”) paternity of Ember Mazzotti-Dill (“Child”) and post-

      secondary education expenses for her. Mother argues that the trial court erred

      by declining to require Father to pay child support retroactive to the date of

      Child’s birth. Mother also argues that the trial court abused its discretion in

      apportioning the parents’ obligation toward Child’s remaining college expenses

      and ordering her to pay $6000 per year when she allegedly lacks income and

      ability to earn wages sufficient to pay that amount.


[2]   We conclude that the trial court did not abuse its discretion by declining to

      order Father to pay retroactive child support. We also conclude that the trial

      court’s finding regarding Mother’s ability to pay is not clearly erroneous and

      supports its decision. Therefore, we affirm.


                                  Facts and Procedural History
[3]   The facts most favorable to the judgment show that on December 26, 1995,

      Child was born. Father acknowledged paternity and signed the paternity

      affidavit.


[4]   At the time of Child’s birth, Mother and Father were living with Child’s

      grandmother. In April 1996, Father moved out. However, he and Mother had

      an “off and on relationship,” and Father sporadically lived at grandmother’s

      home until November 1999, when he and Mother ended their relationship. Tr.


      Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016   Page 2 of 15
      at 66. Between 1995 and November 1999, Father’s visitation with Child was

      sporadic. During this period, Father worked at Barnes and Noble Cafe and at

      St. Mary’s Health. He also attended one full-time semester at University of

      Southern Indiana (“USI”). Father’s earnings ranged from approximately $6760

      in 1996 to $17,930 in 1999. Father obtained health insurance for Child

      whenever it was available through his employer. Between 1998 and 2000,

      Mother worked as a part-time waitress.


[5]   In 2000, Father got married. He began to have regular weekend visitation with

      Child. In June or July of that year, he voluntarily began to pay Mother child

      support in the amount of $120 every four weeks. In 2001 and 2002, Father

      worked at St. Elizabeth Ann Seton Hospital. In 2002, Father began working for

      the Town of Newburgh. Between 2000 and 2005, Father made about $20,000 a

      year. In 2006, Father made about $24,000 a year.


[6]   Mother and Child continued to reside with grandmother during Child’s

      elementary school years. Grandmother was very active in Child’s life.

      Grandmother usually took Child to school and prepared her meals. When

      Child needed or wanted something, she turned to her grandmother more often

      than Mother, although “sometimes” she turned to Mother. Id. at 192. Child

      lived with grandmother through fifth grade.


[7]   In 2006, Mother moved out of grandmother’s home and began living with

      Stephen Wargel. A couple months later, Child moved in with Mother and

      Wargel. However, Child “never actually lived [with Mother and Wargel]


      Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016   Page 3 of 15
       completely.” Id. at 192-93. Child still spent most of her time at grandmother’s

       and “just slept at [Mother’s] house.” Id. at 193. From 2007 to 2009, Mother

       worked parttime at her father’s dental lab. Mother gave birth to another child

       in 2009. Since 2009, she has been a stay-at-home mom, and she has continued

       to reside with Wargel.


[8]    In 2007, Father earned approximately $31,000. In 2008, he was promoted and

       made about $41,000. Father then voluntarily increased the amount of child

       support to $150 every four weeks. “There were a handful of times over the

       years” when Father asked Mother if there was any extra help he could give her.

       Id. at 71. Mother always replied that the amount of child support that he

       provided was fine. At no time did Mother tell Father that the child support he

       was providing was not enough or that she needed more child support. Id. at 72.


[9]    In 2009, Father made about $48,990. In 2010, he made $52,630. During this

       time, Father continued to provide child support of $150 every four weeks. He

       never increased child support. In 2010, Father divorced. By that time, he had

       two additional children. In 2011, Father made $42,190. In 2012, he made

       $44,040. At some point, Father remarried.


[10]   In February 2013, when Child was a high school junior, she went to live with

       Father and his wife, Margaret Dill. In March 2013, Father stopped paying

       child support. In 2013, Father made about $41,170. At the beginning of the

       summer, Child went to live with her grandmother. In November 2013, Mother

       filed a paternity action against Father and a petition to establish post-secondary


       Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016   Page 4 of 15
       education expenses. In December 2013, after Child turned 18, she went to live

       with Father, and she remained with him until the end of the summer in 2014.

       In January 2014, Father filed a petition for child support and education support.


[11]   Child applied and was admitted to Butler University and USI. Child wishes to

       become a teacher. Child decided to attend Butler. The cost to attend Butler is

       about $48,587 per year, but after Child’s scholarships, grants, and other

       financial aid is applied, the remaining out-of-pocket cost is $24,387. The cost to

       attend USI is about $18,000 per year. Mother did not want Child to attend

       Butler because Mother did not believe that an expensive private school justifies

       a teacher’s salary and she does not have the ability to pay for Child to attend a

       private school. Father offered to pay $7000 a year toward Child’s college

       expenses. Child began her first year at Butler in the fall of 2014. Father took

       out a Direct Parent Plus Loan in the amount of $26,574. Mother did not

       contribute.


[12]   In June 2015, following a hearing on both parties’ petitions, the trial court

       entered its order establishing paternity and for post-secondary education

       expenses (“Order”). Appellant’s App. at 9-10. In its Order, the trial court

       established Father’s paternity and found that neither party owed the other a

       child support arrearage. As for post-secondary education expenses, the trial

       court found that Child has the aptitude and ability to succeed in post-secondary

       education. The trial court determined that Mother and Father should

       contribute no more than $6000 per year toward Child’s college expenses. The

       trial court “based its order regarding parental contribution amounts on the

       Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016   Page 5 of 15
       [USI] cost of $18,000, with each the Mother, Father, and [Child] being

       responsible for 1/3 of the cost of attendance, beginning with the 2015-2016

       school year.” Id. at 10. In addition, the trial court ordered Father to maintain

       Child on his health insurance plan.


[13]   The trial court attached two additional pages to its Order. The first attachment

       is an explanation, which begins as follows: “The court is not issuing Findings of

       Fact and Conclusions of Law but will explain some of the reasons for the

       court’s ruling in this matter.” Id. at 12. The second attachment is a Post-

       Secondary Education Worksheet (“PSEW”) completed by the trial court. The

       explanation states that Father’s share of the parents’ total weekly adjusted

       income is 72% and Mother’s is 28%. It further states that the trial court used

       the cost of attending USI in setting Mother’s and Father’s contribution at no

       more than $6000 per year for Child’s remaining years. The explanation shows

       that based on what each parent contributed toward Child’s first year and on

       each parent’s $6000 annual contribution, Father’s total contribution to Child’s

       college expenses will be $47,574 and Mother’s will be $21,000. 1 The

       explanation concludes that the total parental post-secondary responsibility is

       $68,574 with Father contributing 69% and Mother contributing 31%. The

       explanation provides that the “court considers that the Mother is voluntarily

       unemployed and has been so for the vast majority of her adult life.” Id. The




       1
         The amounts are different because Father contributed $26,574 to Child’s first year of college while Mother
       contributed nothing. Also, these amounts are based on four and a half semesters of college.

       Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016         Page 6 of 15
       explanation also states that “Mother is able to pay, or cause to be paid, the

       amount ordered by the court” because she presented an extensive list of all the

       things she had provided for Child in one of Father’s interrogatories. Id.


[14]   The PSEW differs from the trial court’s explanation in certain respects. The

       PSEW shows that Father’s share of total weekly adjusted income is 72.28% and

       Mother’s is 27.72%. Total education costs are based on the cost to attend

       Butler, not USI. The PSEW provides that Child’s total yearly education cost is

       $48,587, and the parents’ total obligation of that is $24,387. Father’s share of

       $24,387 is 72.28%, or $17,626.92, and Mother’s share is 27%, or $6760.08.

       Mother appeals.


                                      Discussion and Decision

           Section 1 – The trial court did not abuse its discretion in
         finding that Father did not owe child support retroactive to
                                 Child’s birth.
[15]   Mother argues that the trial court abused its discretion by declining to require

       Father to pay child support retroactive to the date of Child’s birth. When

       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)).


               A trial court’s decision regarding child support will be upheld
               unless the trial court has abused its discretion. A trial court
               abuses its discretion when its decision is clearly against the logic

       Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016   Page 7 of 15
               and the effect of the facts and circumstances before the court or if
               the court has misinterpreted the law.


       Sexton v. Sedlak, 946 N.E.2d 1177, 1183 (Ind. Ct. App. 2011), trans. denied.


[16]   In a paternity action, the initial child support order must include the period

       dating from the filing of the paternity action and may, at the trial court’s

       discretion, include the period dating from the birth of the child. Ind. Code § 31-

       14-11-5. The trial court may order either parent to pay any amount reasonable

       for support of a child, after considering all relevant factors, including

               (1) the financial resources of the custodial parent;


               (2) the standard of living the child would have enjoyed if:


                        (A) the marriage had not been dissolved;


                        (B) the separation had not been ordered; or


                        (C) in the case of a paternity action, the parents had been
                        married and remained married to each other;


               (3) the physical or mental condition of the child and the child’s
               educational needs.


       Ind. Code §§ 31-14-11-2.3; 31-16-6-1(a).


[17]   Mother likens this case to In re McGuire-Byers, 892 N.E.2d 187 (Ind. Ct. App.

       2008), trans. denied, in which this Court held that the trial court did not abuse its

       discretion by ordering the father to pay child support retroactive to the child’s

       Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016   Page 8 of 15
       birth. Id. at 192. There, the child was born in 1987 and filed a petition for

       paternity in 2006. The trial court found that the father was aware of the child’s

       birth and “then purposefully disappeared and made himself impossible for

       mother to locate,” and the mother bore “the entire burden” of supporting the

       child. Id. at 191. The trial court issued a child support order that was

       retroactive to the date of the child’s birth, and the father’s arrearage amounted

       to $118,560. On appeal, the father claimed that the trial court failed to consider

       his financial resources and the hardship that the arrearage would place on his

       four other young children. The McGuire-Byers court was unpersuaded by the

       father’s arguments and concluded, “Given that [the father] was aware that he

       was [the child’s] father from the time of his birth and knowingly avoided his

       responsibility to support him, it was within the trial court’s discretion to order

       retroactive child support.” Id. at 192.


[18]   McGuire-Byers is distinguishable in two important respects. There, the father

       purposefully avoided taking any responsibility for financially supporting the

       child, and the trial court in its discretion ordered child support retroactive to the

       child’s date of birth. Here, in contrast, Father voluntarily paid child support

       from 2000 to March 2013, and the trial court in its discretion decided that

       retroactive child support to the date of Child’s birth was not appropriate under

       the circumstances. Secondly, McGuire-Byers’ holding that it wasn’t an abuse of

       discretion to order retroactive support payments does not mean that it is an

       abuse of discretion to deny it.




       Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016   Page 9 of 15
[19]   Nevertheless, Mother contends that Father paid only $17,740 in child support

       over the years, and she alleges that he would have been required to pay $72,280

       under the Indiana Child Support Guidelines. She argues that Father’s

       contributions were wholly inadequate, that he merely paid what he felt that his

       budget would allow, and that he must have known that he should have been

       paying more. She also asserts that she “deserves recognition for devoting her

       time and her life to her daughter.” Appellant’s Reply Br. at 3.


[20]   The trial court heard evidence regarding each parent’s earnings over the course

       of Child’s life, how much child support Father paid, that Mother and Child

       lived with grandmother through Child’s fifth-grade year, and that grandmother

       provided significant assistance in raising Child. In addition, Father testified

       that he sometimes asked Mother whether she needed more child support and

       she replied that the amount that he was providing was fine. Accordingly, we

       cannot say that the trial court abused its discretion in declining to order Father

       to pay retroactive child support.


          Section 2 – The trial court did not abuse its discretion by
        ordering Mother to contribute $6000 per year toward Child’s
                        remaining college expenses.
[21]   “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) (citing Carr v. Carr, 600 N.E.2d 943, 945

       (Ind. 1992)). 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

       Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016   Page 10 of 15
       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).


[22]   Although the trial court stated that it did not issue findings of fact and

       conclusions of law, it provided limited findings in its explanation attached to its

       Order. ‘“When the trial court enters such findings sua sponte, the specific

       findings control only as to the issues they cover, while a general judgment

       standard applies to any issue upon which the court has not found.’” Scoleri v.

       Scoleri, 766 N.E.2d 1211, 1215 (Ind. Ct. App. 2002) (quoting Nelson v.

       Marchand, 691 N.E.2d 1264, 1267 (Ind. Ct. App. 1998)). “For findings of fact

       to be clearly erroneous, the record must lack probative evidence or reasonable

       inferences from the evidence to support them.” Id.


               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 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.




       Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016   Page 11 of 15
       Hinesley-Petry v. Petry, 894 N.E.2d 277, 280-81 (Ind. Ct. App. 2008) (quoting

       McKay v. McKay, 644 N.E.2d 164, 166 (Ind. Ct. App. 1994)), trans. denied

       (2009).


[23]   “[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 v. Threlkel, 858 N.E.2d 665,

       670 (Ind. Ct. App. 2006) (quoting 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. 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.”

       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. Carr, 600 N.E.2d at 946.


[24]   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:

       Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016   Page 12 of 15
                        (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.


[25]   Here, there is no dispute that Child has the aptitude and ability to attend

       college. Mother asserts that the trial court abused its discretion in calculating

       the parents’ share of total weekly adjusted income and in apportioning their

       college contribution. She also challenges its finding that she has the means to

       pay $6000 per year.


[26]   Regarding total weekly adjusted income, we observe that the PSEW shows that

       Father’s share is 72.28% and Mother’s share is 27.72%. Mother contends that

       the trial court did not provide the underlying income figures that it used to

       calculate those percentages and that her Child Support Obligation Worksheet

       indicates that Father’s share is 77% and her share is 23%. Our own estimates

       are not far off the trial court’s numbers. In 2013, Father earned $41,172, or

       $762 per week. Ex. S; Appellant’s Br. at 5. Even though Mother has chosen to

       Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016   Page 13 of 15
       be a stay-at-home mother, she acknowledged that she is physically and mentally

       able to be employed and “requested that the trial court figure her income at the

       federal minimum wage.” Appellant’s Br. at 4. The current minimum wage is

       $7.25 per hour, which comes to $290 per week based on a forty-hour work

       week. Based on Father’s weekly income of $762 and Mother’s weekly income

       of $290, Father’s share of the total weekly income is 73.20% and Mother’s is

       26.8%. This is roughly equivalent to the trial court’s figures, and therefore we

       find no abuse of discretion here. See Eppler v. Eppler, 837 N.E.2d 167, 177 (Ind.

       Ct. App. 2005) (“While the statutes and our guidelines do not require

       apportionment based on precise parity, they do require rough proportionality.”)

       (quoting Carr, 600 N.E.2d at 946).


[27]   Mother next argues that the trial court abused its discretion in apportioning the

       parents’ college contribution. Specifically, she assert she should not be required

       to pay 50% of the parents’ annual obligation of $12,000 for Child’s remaining

       years. Mother ignores that she did not contribute anything for Child’s first year

       while Father contributed $26,574 and that the trial court considered these

       amounts when calculating the parents’ share of their obligation toward Child’s

       total college cost. When these amounts are considered, the total parental

       obligation for all of Child’s years at Butler is $68,574. Father’s share of that is

       69% and Mother’s is 31%. That is roughly equivalent to the parties’ share of

       total weekly income. We find no abuse of discretion here.


[28]   As for Mother’s ability to pay $6000 annually for Child’s remaining college

       years, the trial court made some findings in that regard:

       Court of Appeals of Indiana | Memorandum Decision 87A01-1506-JP-725 | February 24, 2016   Page 14 of 15
               The court considers that the Mother is voluntarily unemployed
               and has been so for the vast majority of her adult life. The
               Mother agreed that she is physically and mentally able to be
               employed if she would so choose. Even though the Mother has
               never earned any regular income, she otherwise testified that she
               always provided financially for [Child], and for her subsequent
               child. In addition, the court notes, in support of its finding that
               Mother is able to pay, or cause to be paid, the amount ordered by
               the court for post-secondary expenses, portions of Mother’s
               answer to Interrogatory No. 16, which was entered into evidence
               as Father’s Exhibit U: …I paid almost every school fee: book
               fees, lunch fees, field trip fees, sports enrollment fees and
               equipment fees (basketball, dancing and ballet, lacrosse, etc.),
               activity fees, school supplies, backpacks, costumes, uniforms,
               SAT fees, ACT fees, college application fees, gas, school clothes,
               winter coats, yearbook fees, school picture fees, etc. I made sure
               she had access to all the tools needed for her education:
               computers, laptops, printers, scanners, copiers, software, flash
               drives, digital cameras, cell phones, an automobile, etc….We
               took her to museums, zoos, nature reserves, aquariums, historic
               sites, 4-H fairs, and other areas for learning.”


       Appellant’s App. at 12. We conclude that the trial court’s finding is not clearly

       erroneous. Therefore, we cannot say that the trial court abused its discretion in

       requiring Mother to pay $6000 per year toward Child’s remaining college

       expenses.


[29]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




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