                                                                   Aug 22 2013, 5:40 am
FOR PUBLICATION



ATTORNEY FOR APPELLANT:                      ATTORNEY FOR APPELLEE:

JUDY M. TYRRELL                              MARK J. TORMA
Indianapolis, Indiana                        South Bend, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

ALEXANDER DAVID TORADZE,                     )
                                             )
      Appellant-Respondent,                  )
                                             )
             vs.                             )       No. 71A05-1212-DR-623
                                             )
SUSAN BLAKE TORADZE,                         )
                                             )
      Appellee-Petitioner.                   )


                   APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
                        The Honorable Michael G. Gotsch, Judge
                            Cause No. 71C01-9903-DR-205


                                   August 22, 2013

                             OPINION - FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Respondent, Alexander David Toradze (Father), appeals the trial court’s

denial of his motion to dismiss for lack of jurisdiction in favor of Appellee-Petitioner,

Susan Blake Toradze (Mother).

      We affirm.

                                         ISSUE

      Father raises one issue on appeal, which we restate as follows: Whether the trial

court properly decided it had jurisdiction to enter an educational needs order pursuant to

Ind. Code § 31-16-6-6.

                         FACTS AND PROCEDURAL HISTORY

      Mother and Father were divorced on May 24, 2002. During the marriage, two

children were born: D.T., born on November 30, 1991 and A.T., born on April 21, 1993.

The Decree of Dissolution included an order for child support but was silent on the issue

of college educational expenses. Both children were emancipated by operation of law on

July 1, 2012.

      On October 17, 2012, Mother filed a petition to modify child support requesting

an apportionment of post-secondary educational expenses between the parties.           On

October 25, 2012, Father filed a motion to dismiss for lack of jurisdiction. After hearing

the parties’ arguments on November 14, 2012, the trial court denied Father’s motion.

      Father now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION




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       Father contends that the trial court lacks jurisdiction to decide Mother’s request to

apportion the children’s post-secondary educational expenses between the parties based

on I.C. § 31-16-6-6. The applicable standard of review for Trial Rule 12(B)(1) motions

to dismiss for lack of subject matter jurisdiction is a function of what occurred in the trial

court. GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001). That is, the standard of

review is dependent upon: (i) whether the trial court resolved disputed facts; and (ii) if

the trial court resolved disputed facts, whether it conducted an evidentiary hearing or

ruled on a paper record. Id. Where, as here, the facts before the trial court are not in

dispute, the question of subject matter jurisdiction is purely one of law. Id. Under those

circumstances no deference is afforded the trial court’s conclusion because appellate

courts independently, and without the slightest deference to the trial court determination,

evaluate those issues they deem to be questions of law. Id.

       Under Indiana law, there is no absolute legal duty on the parents to provide a

college education for their children. Scales v. Scales, 891 N.E.2d 1116, 1119 (Ind. Ct.

App. 2008). However, the statutory authorization for the divorce court to order either or

both parents to pay sums toward their child’s college education constitutes a reasonable

manner in which to enforce the expectation that most families would encourage their

qualified children to pursue a college education consistent with individual family values.

Id. 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. Id.




                                              3
          At issue in this appeal is Indiana Code section 31-16-6-6, which governs the

termination of child support and emancipation of a child within the procedural framework

of a dissolution decree. The purpose of the statute “is to require that parents provide

protection and support for the welfare of their children until the children reach the

specified age or no longer require such care and support.” Hirsch v. Oliver, 970 N.E.2d

651, 655 (Ind. 2012). Prior to July 1, 2012, the award of educational expenses following

a divorce proceeding was statutorily mandated as follows:

          The duty to support a child under this chapter ceases when the child
          becomes twenty-one (21) years of age unless any of the following
          conditions occurs:

                   (1) The child is emancipated before becoming twenty-one (21) years
                   of age. In this case the child support, except for the educational
                   needs outlined in section 2(a)(1) of this chapter, terminates at the
                   time of emancipation, although an order for educational needs may
                   continue in effect until further order of the court.

                   (2) The child is incapacitated. In this case the child support
                   continues during the incapacity or until further order of the court.

                   (3) The child:
                          (A) is at least eighteen (18) years of age:
                          (B) has not attended a secondary or postsecondary school for
                          the prior four (4) months and is not enrolled in a secondary or
                          postsecondary school; and
                          (C) is or is capable of supporting himself or herself through
                          employment.

I.C. § 31-16-6-6(a). Effective July 1, 2012, the legislature amended I.C. § 31-16-6-6,

which lowered the presumptive age for termination of child support from twenty-one to

nineteen.1 With the exception of the decrease in age-limit, the statute remained the same.


1
    P.L. 111-2012, effective July 1, 2012.


                                                 4
Thereafter, on May 9, 2013, the legislature approved a second amendment of the statute

in Public Law 207-2013, § 45, which added a subsection (c), “EFFECTIVE JULY 1,

2012 (RETROACTIVE).”2 Consequently, the current statute reads, in pertinent part, as

follows:

           (a) The duty to support a child under this chapter, which does not include
           support for educational needs, ceases when the child becomes nineteen (19)
           years of age unless any of the following conditions occurs:

                   (1) The child is emancipated before becoming nineteen (19) years of
                   age. In this case the child support, except for the educational needs
                   outlined in section 2(a)(1) of this chapter, terminates at the time of
                   emancipation, although an order for educational needs may continue
                   in effect until further order of the court.

                   (2) The child is incapacitated. In this case the child support
                   continues during the incapacity or until further order of the court.

                   (3) The child:
                          (A) is at least eighteen (18) years of age:
                          (B) has not attended a secondary or postsecondary school for
                          the prior four (4) months and is not enrolled in a secondary or
                          postsecondary school; and
                          (C) is or is capable of supporting himself or herself through
                          employment.

           ...

           (c) If a court has established a duty to support a child in a court order issued
           before July 1, 2012, the:

                   (1) parent or guardian of the child; or

                   (2) child;

           may file a petition for educational needs until the child becomes twenty-one
           (21) years of age.


2
    P.L. 207-2013, § 45, was approved after the filing dates of the parties’ appellate briefs.


                                                        5
I.C. § 31-16-6-6(a) & (c).

       The record reflects that both children were emancipated on July 1, 2012 by

operation of the statute. Although a child support order had been instituted as part of the

dissolution decree in 2002, no separate educational needs order had been requested until

Mother’s petition of October 17, 2012. When Mother filed her petition for educational

expenses, both children had not yet reached twenty-one years of age. Because the trial

court had established a duty to support the children in a court order issued prior to July 1,

2012 and the children were younger than twenty-one years of age, Mother was entitled to

file her petition for post-educational expenses based on I.C. § 31-16-6-6(a) & (c).

Therefore, we conclude that the trial court had jurisdiction to decide Mother’s request to

institute an order for educational needs.

                                      CONCLUSION

       Based on the foregoing, we conclude that the trial court acquired jurisdiction with

respect to Mother’s request for educational expenses following a dissolution of marriage

based on I.C. § 31-16-6-6(a) & (c).

       Affirmed.

BRADFORD, J. concurs

BROWN, J. concurs in result with separate opinion




                                             6
                              IN THE
                    COURT OF APPEALS OF INDIANA

ALEXANDER DAVID TORADZE,                         )
                                                 )
      Appellant-Respondent,                      )
                                                 )
              vs.                                )    No. 71A05-1212-DR-623
                                                 )
SUSAN BLAKE TORADZE,                             )
                                                 )
      Appellee-Petitioner.                       )


BROWN, Judge, concurring in result


      I concur in the result reached by the majority but write separately to fine tune a

point and state my disagreement with the majority’s conclusion that the trial court

acquired subject matter jurisdiction to decide Mother’s request to institute an order for

educational needs based on the amendments to Ind. Code § 31-16-6-6. The Indiana

Supreme Court has held that Indiana trial courts possess two kinds of “jurisdiction.” K.S.

v. State, 849 N.E.2d 538, 540 (Ind. 2006). Subject matter jurisdiction is the power to

hear and determine cases of the general class to which any particular proceeding belongs.

Id. “Personal jurisdiction requires that appropriate process be effected over the parties.”

Id. The Court also held that “[o]ther phrases recently common to Indiana practice, like


                                            7
‘jurisdiction over a particular case,’ confuse actual jurisdiction with legal error, and we

will be better off ceasing such characterizations.” Id. The Court explained that “[r]eal

jurisdictional problems would be, say, a juvenile delinquency adjudication entered in a

small claims court, or a judgment rendered without any service of process.” Id. at 542.

Because the trial court had the power to hear and determine cases of the general class to

which Mother’s petition to modify child support belongs, and appropriate process was

effected over the parties, I would conclude that the trial court had personal and subject

matter jurisdiction and that Ind. Code § 31-16-6-6 provided the statutory basis for

providing Mother the requested relief.




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