                                                                                  FILED
                                                                              Dec 10 2018, 9:28 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT
      Daniel J. Zlatic
      Rubino, Ruman, Crosmer & Polen
      Dyer, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Cathy Lynn Baker,                                         December 10, 2018
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                18A-DR-1572
              v.                                                Appeal from the
                                                                Hamilton Superior Court
      Douglas L. Grout,                                         The Honorable
      Appellee-Respondent.                                      Jonathan M. Brown, Judge
                                                                Trial Court Cause No.
                                                                29D02-0410-DR-913



      Kirsch, Judge.


[1]   Cathy Lynn Baker (“Mother”) appeals the trial court’s order denying her

      petition for emancipation, termination of child support, and termination of

      income withholding. She raises two issues, of which we find the following

      dispositive: whether the trial court abused its discretion when it denied her

      petition to terminate child support.



      Court of Appeals of Indiana | Opinion 18A-DR-1572 | December 10, 2018                           Page 1 of 7
[2]   We reverse and remand.


                                  Facts and Procedural History
[3]   Mother and Douglas L. Grout (“Father”) were married, and their marriage was

      dissolved by a decree of dissolution in 2008. Mother and Father are the parents

      of one son, Nicholas Grout (“Nicholas”), who was born on July 13, 1999.

      Since February 8, 2016, Mother was ordered to pay child support for Nicholas

      in the amount of $133 per week. Appellant’s App. Vol. II at 19. On June 13,

      2018, Mother filed a “Verified Petition for Emancipation, Termination of Child

      Support, and Termination of Income Withholding Order,” requesting that her

      child support be terminated on July 13, 2018 when Nicholas turned nineteen.

      Id. at 39-40.


[4]   A hearing was held on June 28, 2018, and the following evidence was

      presented. Nicholas would turn nineteen years old on July 13, 2018. Tr. Vol. II

      at 6. Nicholas had no disabilities of any sort. Id. Nicholas had been approved

      for a “Century 21 Scholarship Fund” (“the Scholarship”) that would pay for

      four years of schooling at any school of his choice within the state of Indiana.

      Id. at 7. Nicholas was planning to attend Indiana University-Purdue University

      at Indianapolis (“IUPUI”), starting as a freshman in August of 2018. Id. at 7, 8,

      11. Nicholas did not have to take out any loans for college. Id. at 12. The

      evidence presented showed that the Scholarship, along with grants, covered

      Nicholas’s cost of attending IUPUI for a student living at home. Resp’t’s Exs. A,

      B. Nicholas planned to live at Father’s home while attending IUPUI. Tr. Vol.


      Court of Appeals of Indiana | Opinion 18A-DR-1572 | December 10, 2018     Page 2 of 7
      II at 13. Father testified that he was not asking for Mother to contribute to

      educational expenses if everything was being paid through grants and

      scholarships. Id. at 14. Mother testified that Nicholas qualified for four years

      of the Scholarship and that the Scholarship was not dependent on his grades,

      and he is entitled to the grants as long as he does not “flunk out” (less than a 1.0

      G.P.A.) of school. Id. at 7, 16-17.


[5]   At the conclusion of the hearing, the trial court denied Mother’s petition and

      ordered her to continue to pay child support for Nicholas. Id. at 18-19;

      Appellant’s App. Vol. II at 19-21. In its order denying Mother’s petition, the trial

      court ordered Mother to pay child support beginning on August 17, 2018 in the

      amount of $52 per week and did not state when Mother’s payment of child

      support would cease. Appellant’s App. Vol. II at 19-21. Mother now appeals.


                                      Discussion and Decision
[6]   Mother argues that the trial court abused its discretion when it denied her

      petition to terminate child support. Determinations of child support obligations

      are within the trial court’s discretion and will not be set aside unless they are

      clearly erroneous. Turner v. Turner, 983 N.E.2d 643, 646 (Ind. Ct. App. 2013)

      (citing Cubel v. Cubel, 876 N.E.2d 1117, 1119 (Ind. 2007)).


[7]   Initially, we note that Father did not file an appellee’s brief. When an appellee

      fails to file a brief, we apply a less stringent standard of review. McKibben v.

      Kaiser, 106 N.E.3d 529, 530 (Ind. Ct. App. 2018). We are under no obligation

      to undertake the burden of developing an argument for the appellee. Id.

      Court of Appeals of Indiana | Opinion 18A-DR-1572 | December 10, 2018       Page 3 of 7
      Therefore, we may reverse the trial court if the appellant establishes prima facie

      error, which is error “at first sight, on first appearance, or on the face of it.” Id.


[8]   Under Indiana Code section 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 (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 school or postsecondary
              educational institution for the prior four (4) months and is not
              enrolled in a secondary school or postsecondary educational
              institution; and


              (C) is or is capable of supporting himself or herself through
              employment.


              In this case the child support terminates upon the court’s finding
              that the conditions prescribed in this subdivision exist. However,

      Court of Appeals of Indiana | Opinion 18A-DR-1572 | December 10, 2018          Page 4 of 7
              if the court finds that the conditions set forth in clauses (A)
              through (C) are met but that the child is only partially supporting
              or is capable of only partially supporting himself or herself, the
              court may order that support be modified instead of terminated.


      Ind. Code § 31-16-6-6(a). The purpose of Indiana Code section 31-16-6-6 “‘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) (quoting Dunson v.

      Dunson, 769 N.E.2d 1120, 1124 (Ind. 2002)) (emphasis added).


[9]   Exercising its prerogative to set policy, the legislature determined that the age at

      which a parent is no longer obligated to pay child support is nineteen. See

      Turner, 983 N.E.2d at 647-48 (citing Skelton v. State, 90 N.E. 897, 173 Ind. 462

      (Ind. 1910) (the legislature determines public policy of the State, and, when it

      has declared a policy in plain terms, it is the duty of the courts to give it effect)).

      In Turner, this court found that a trial court abused its discretion when it failed

      to follow the law and find that child support was terminated at age nineteen.

      983 N.E.2d at 648. In that case, the parties’ dissolution decree stated that the

      father would pay child support for the child until the age of twenty-one, which

      was the statutory age at which child support terminated at the time the decree

      was issued. Id. at 645. The legislature amended the statute to change the age at

      which child support terminated to nineteen, and the father filed a petition to

      terminate child support as the child had reached the age of nineteen. Id. The

      trial court denied the father’s petition and found the language in the decree

      controlling. Id. at 646. This court reversed and, noting that the language in the

      Court of Appeals of Indiana | Opinion 18A-DR-1572 | December 10, 2018         Page 5 of 7
       dissolution decree was boilerplate and followed the existing law at the time it

       was issued, held that the trial court abused its discretion when it denied the

       father’s petition to terminate child support because the trial court did not have

       discretion to extend the father’s duty to pay child support beyond what was

       required by the amended statute. Id. at 648.


[10]   Here, there was no evidence that the parties’ dissolution decree contained

       language requiring Mother to pay child support for Nicholas until the age of

       twenty-one. Instead, Mother petitioned the trial court to relieve her of the

       requirement to pay child support when Nicholas turned nineteen pursuant to

       Indiana Code section 31-16-6-6, which was the applicable law. The evidence

       showed that Nicholas turned nineteen on July 13, 2018 and that none of the

       exceptions contained in section 31-16-6-6 applied to him. We, therefore,

       conclude as in Turner, that the trial court did not have the discretion to go

       outside the parameters of the termination of child support statute and to extend

       Mother’s requirement to pay child support beyond what is required by law. 1




       1
         We emphasize that our opinion applies only to Mother’s obligation to provide child support. We make no
       comment on her obligation to provide educational support if Nicholas’s circumstances change in the future.
       We note that, according to Indiana Child Support Guideline 8(b), appropriate educational expenses can
       include “tuition, books, lab fees, course related supplies, and student activity fees. Room and board may be
       included when the child does not reside with either parent.” Additionally, “‘[a] post-secondary educational
       order may include medical, dental, and optical insurance costs, as well as other health care costs, where the
       court finds such costs appropriate.’” Myers v. Myers, 80 N.E.3d 932, 937 (Ind. Ct. App. 2017) (quoting Cubel
       v. Cubel, 876 N.E.2d 1117, 1120-21 (Ind. 2007)). “Other appropriate extraordinary educational expenses that
       have been taken into account by courts in the past are transportation, car insurance, clothing, entertainment
       and incidental expenses.” Id. (citing Snow v. Rincker, 823 N.E.2d 1234, 1240 (Ind. Ct. App. 2005)). At the
       time of the hearing, the evidence presented showed that Nicholas’s room and board, transportation, books
       and supplies, as well as tuition and fees were covered by grants and scholarships.

       Court of Appeals of Indiana | Opinion 18A-DR-1572 | December 10, 2018                             Page 6 of 7
[11]   Not only has Mother shown prima facie error, we also conclude that she has

       shown that the trial court abused its discretion when it denied her petition to

       terminate child support. We, therefore, reverse the trial court’s denial of

       Mother’s petition to terminate child support and remand to the trial court to

       enter an order that grants Mother’s petition and terminates child support

       effective July 13, 2018 and that orders the repayment of all child support paid

       by Mother since that date.


[12]   Reversed and remanded.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 18A-DR-1572 | December 10, 2018     Page 7 of 7
