FOR PUBLICATION




ATTORNEY FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

DAN J. MAY                                    KATHERINE J. NOEL
Kokomo, Indiana                               Noel Law

                                                                        FILED
                                              Kokomo, Indiana

                                                                     Jun 08 2012, 9:27 am


                             IN THE                                          CLERK
                                                                           of the supreme court,
                                                                           court of appeals and
                   COURT OF APPEALS OF INDIANA                                    tax court




TRICIA L. SEXTON,                             )
                                              )
      Appellant-Petitioner,                   )
                                              )
             vs.                              )     No. 34A02-1111-DR-01059
                                              )
TRAVIS SEXTON,                                )
                                              )
      Appellee-Respondent.                    )
                                              )


                   APPEAL FROM THE HOWARD SUPERIOR COURT
                          The Honorable Brant J. Parry, Judge
                           Cause No. 34D02-1105-DR-429


                                     June 8, 2012

                              OPINION - FOR PUBLICATION

VAIDIK, Judge
                                       Case Summary

          Tricia Sexton (“Mother”) appeals the trial court’s order finding that her daughter,

K.S., was emancipated. Mother argues that the trial court erred in finding that K.S. was

outside the care or control of her parents and was self-supporting. Because it represents a

significant and wide-reaching change in state law, we also address Father’s arguments

regarding Public Law 111-2012, which will change the presumptive age for termination

of child support from twenty-one to nineteen on July 1, 2012.

          With respect to Mother’s claims, we conclude that K.S. indeed put herself outside

the care or control of her parents and was self-supporting, and thus the trial court did not

err in determining that she was emancipated. As to Father’s contentions, we hold that the

amended child-support statute does not apply retroactively such that obligors may be

reimbursed for past support payments made for children beyond age nineteen.              We

affirm.

                                   Facts and Procedural History

          Mother and Travis Sexton (“Father”) were divorced in 2007. Mother was awarded

physical custody of the parties’ two children—K.S., born September 9, 1991, and Ko.S.,

born December 10, 1993. Father was ordered to pay $201 per week in child support.

          While in high school, K.S. obtained her CNA license and began working at

Fairmont Nursing Home. K.S. graduated from high school in May 2010 and enrolled in

classes at Ivy Tech Community College. Father’s support obligation was increased to

$240 per week at that time. K.S. worked at Fairmont and attended classes at Ivy Tech

during the summer and into the fall. In September 2010, K.S. learned that she was


                                               2
pregnant. Two months later, she stopped working. She also stopped attending classes at

that time, although she enrolled in classes the following semester. In June 2011, K.S.

gave birth to a son.

       Father filed a motion to emancipate K.S. in March 2011, before K.S. gave birth to

her son. The trial court held a hearing on Father’s petition in August 2011. At the

hearing, Father testified that before becoming pregnant, K.S. was working full-time and

taking classes part-time at Ivy Tech; however, she stopped doing both shortly after

learning she was pregnant. Tr. p. 13. Father said that since filing the emancipation

petition, K.S. refused to see him and informed him that he would no longer have a

relationship with her or his grandson. Id. at 21.

       K.S. testified that she lived with Mother, did not pay rent, and had not worked

since she quit her job at Fairmont in November 2010. K.S. said that she received

governmental assistance and financial aid, which paid her tuition at Ivy Tech in full. K.S.

confirmed that she was in a relationship with her son’s father, who worked at FedEx and

was a member of the National Guard. K.S. stated that she asked him to provide diapers

for their child, “because I don’t need anything else . . . .” Id. at 65. Mother also testified

and confirmed that K.S. lived with her and did not pay rent.

       One month later, the trial court entered an order finding K.S. to be emancipated

under Indiana Code section 31-16-6-6(b)(3). Mother filed a motion to correct error,

which the trial court denied. Mother now appeals.




                                              3
                                 Discussion and Decision

       Mother contends that the trial court erred when it determined that K.S. was

emancipated. Specifically, Mother argues that the trial court erred in finding that K.S.

was outside the care or control of her parents and was self-supporting.

                                      I. Emancipation

       Indiana places a strong emphasis on the discretion of our trial courts in

determining child-support obligations, such as in emancipation determinations.          See

Carpenter v. Carpenter, 891 N.E.2d 587, 592 (Ind. Ct. App. 2008). We will not set aside

a trial court’s decision to modify child support unless it is clearly erroneous. Id. On

appeal, we do not reweigh evidence or judge witness credibility. Id.; see also Butrum v.

Roman, 803 N.E.2d 1139, 1146 (Ind. Ct. App. 2004), reh’g denied, trans. denied. We

consider only the evidence most favorable to the judgment and the reasonable inferences

drawn therefrom. Carpenter, 891 N.E.2d at 592.

       Here, the trial court entered findings of fact and conclusions of law at the parties’

request. As a result, we apply a two-tiered standard of review. First, we determine

whether the evidence supports the findings and second, whether the findings support the

judgment. Id. We will set aside the trial court’s findings only if they are clearly

erroneous—that is, “when a review of the record leaves us firmly convinced that a

mistake has been made.” Id. (quotation omitted). “Although we defer to a trial court’s

ability to find the facts, we do not defer to conclusions of law, and a judgment is clearly

erroneous if it relies on an incorrect legal standard.” Id. (quotation omitted).




                                              4
      What constitutes emancipation is a question of law, and whether emancipation has

occurred is a question of fact. Butrum, 803 N.E.2d at 1143. Emancipation cannot be

presumed; rather, the party seeking emancipation must establish it by competent

evidence. Id. Indiana Code section 31-16-6-6 governs the termination of child support

and emancipation of a child. The purpose of this 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.” Id. (quotation omitted).

      Specifically, Indiana Code section 31-16-6-6 provides:

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

      (b) For purposes of determining if a child is emancipated under subsection
      (a)(1), if the court finds that the child:


                                            5
        (1) has joined the United States armed services;
        (2) has married; or
        (3) is not under the care or control of:
                (A) either parent; or
                (B) an individual or agency approved by the court;
        the court shall find the child emancipated and terminate the child support.

Ind. Code Ann. § 31-16-6-6 (West 2008).

        On appeal, Mother argues that the trial court erred when it found that K.S. was

emancipated pursuant to subsection (b)(3).1 Subsection (a)(1) provides that the duty to

support a child ceases when the child reaches age twenty-one unless the child is

emancipated before that point. I.C. § 31-16-6-6(a)(1). For purposes of determining

whether a child has become emancipated under subsection (a)(1), subsection (b) provides

that if the court finds that the child (1) has joined the United States armed services; (2)

has married; or (3) is not under the care or control of either parent, then “the court shall

find the child emancipated and terminate the child support.” I.C. § 31-16-6-6(b). The

trial court found that K.S. was not under the care or control of either parent under

subsection (b)(3).

        In order to prove that a child is not under the care or control of either parent, our

Supreme Court has found that the child must (1) initiate the action putting himself or

herself outside the parents’ control and (2) in fact be self-supporting. Butrum, 803

N.E.2d at 1146 (citing Dunson v. Dunson, 769 N.E.2d 1120, 1124-25 (Ind. 2002)). In

this case, the trial court found that K.S. put herself outside her parents’ care or control



        1
          Mother also argues that the trial court erred in finding that K.S. was emancipated under
subsection (a)(3). However, the court did not emancipate K.S. under subsection (a)(3). This is clear from
the court’s express finding that K.S. “has never stopped being enrolled in a secondary or post-secondary
educational institution for longer than 3 months.” Appellant’s App. p. 24.
                                                   6
when she had a child out of wedlock. Mother argues that this fact alone cannot be used

to justify a finding that K.S. placed herself outside the care or control of her parents.

       We addressed this issue in Robles v. Robles, 855 N.E.2d 1049 (Ind. Ct. App.

2006), reh’g denied. In Robles, the father sought to have his nineteen-year-old daughter

emancipated. At the time of the hearing on the father’s petition, the daughter had a one-

year-old child. The trial court determined that the daughter was emancipated, and we

affirmed. Specifically addressing the issue of the daughter’s decision to have a child, we

acknowledged that “a woman’s act of becoming pregnant and giving birth to a child out

of wedlock is not an exception listed in Indiana Code section 31-16-6-6(b).” Id. at 1055.

However, we explained that this fact could be considered when determining whether a

child had placed herself outside the care or control of her parents. Id. Thus, while a

finding that a child placed herself outside the care or control of her parents cannot be

based solely on the fact that she gave birth to a child, that fact, when taken in conjunction

with others, may support such a finding. That is the case here.

       At nineteen, K.S. is a mother. She continues to have a romantic relationship with

her child’s father, who provides supplies for the child as requested by K.S. In addition,

K.S. applied for, and receives, some governmental assistance. She refuses a relationship

with her own father and denies her father a relationship with his grandson. These

decisions are those of an adult not under the care or control of either parent. The trial

court did not err in finding that K.S. put herself outside her parents’ care or control.

       In order to be emancipated under subsection (b)(3) however, K.S. also must be

self-supporting. The record before us shows that this is the case. K.S. requests baby


                                              7
supplies as needed from her child’s father and receives governmental assistance for

herself and her child. K.S. has not established paternity or sought child support. When

asked why she had not done so, K.S. responded, “Because I don’t need it . . . .” Tr. p. 65.

Further, K.S.’s tuition at Ivy Tech is fully subsidized by financial aid. K.S. also receives

an excess of financial aid that she can use for additional expenses. We conclude that the

trial court did not err in holding that K.S. was emancipated under Section 31-16-6-

6(b)(3).2

                                     II. Public Law 111-2012

        Father contends that even if we were to find that K.S. was not emancipated, this

would have essentially no effect because his child-support obligation to her will be

extinguished on July 1, 2012. Father argues that Public Law 111-2012—which changes

the presumptive age for termination of child support from twenty-one to nineteen—

operates as an automatic termination of his duty to pay support to twenty-year-old K.S.

See Pub. L. No. 111-2012 (eff. July 1, 2012).

        Although Public Law 111-2012 will modify the presumptive age for termination

of child support, it will not alter a child’s ability to obtain educational support—with one

important exception. It will amend the time frame in which certain children may seek

educational support. Specifically, it will amend Indiana Code section 31-14-11-18 to

read as follows:

        2
          We note that Mother seeks appellate attorney’s fees. Our appellate rules authorize us to “assess
damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in
the Court’s discretion and may include attorneys’ fees.” Ind. Appellate Rule 66(E). To prevail on her
claim, Mother must show that Father’s contentions and arguments on appeal are “utterly devoid of all
plausibility.” Bergerson v. Bergerson, 895 N.E.2d 705, 716 (Ind. Ct. App. 2008) (citations omitted).
Because Father prevailed on the issue of emancipation, we cannot say that his arguments are utterly
devoid of all plausibility such that an award of appellate attorney’s fees would be appropriate.
                                                    8
        (a) The duty to support a child under this article (or IC 31–6–6.1 before its
        repeal), which does not include support for educational needs, ceases when
        the child becomes nineteen (19) years of age unless either of the following
        conditions occurs:

        (1) The child is emancipated before the child becomes nineteen (19) years
        of age. If this occurs, the child support, except for educational needs,
        terminates at the time of emancipation. However, an order for educational
        needs may continue in effect until further order of the court.
        (2) The child is incapacitated. If this occurs, the child support continues
        during the incapacity or until further order of the court.

        (b) A child who is receiving child support under an order issued before July
        1, 2012, may file a petition for educational needs until the child becomes
        twenty-one (21) years of age.

        (c) A child who is receiving child support under an order issued after June
        30, 2012, may file a petition for educational needs until the child becomes
        nineteen (19) years of age.

        We need not determine whether Father’s support obligation would terminate

automatically on July 1, 2012: the trial court terminated Father’s obligation to K.S., and

we affirm that ruling.        We do, however, observe that since designating support as

“educational” support was often not vital before the enactment of Public Law 111-2012,

we anticipate that many support orders for college-age students may not specifically refer

to the support as educational, although in reality it is. Trial courts must determine on a

case-by-case basis whether support is in fact educational support. Thus, obligors who

believe that their support obligation will terminate under the new legislation on July 1

would be wise to seek legal advice instead of unilaterally stopping support payments. To

do otherwise risks a finding of contempt and possible criminal sanctions for failing to pay

support.3


        3
        We further observe that the law currently allows an educational support order to remain in effect
beyond a student’s twenty-first birthday, Carson v. Carson, 875 N.E.2d 484, 486 (Ind. Ct. App. 2007),
                                                   9
       Father also asks that we apply the amended statute retroactively such that he can

recover child-support payments made for K.S. after she turned nineteen. Generally

speaking, and absent compelling reasons, statutes will only be applied prospectively. See

Bourbon Mini-Mart, Inc. v. Gast Fuel and Servs., Inc., 783 N.E.2d 253, 260 (Ind. 2003).

“An exception to the rule exists for remedial statutes, i.e. statutes intended to cure a

defect or mischief that existed in a prior statute.” Id. Our inquiry ultimately turns

however, on legislative intent, and our goal is to “construe [the statute] to effect the

evident purpose for which it was enacted[.]” Id. (quotations omitted).

       Here, the legislature did not indicate that the amended statute would apply

retroactively. See Pub. L. No. 111–2012 (eff. July 1, 2012). Nor is the change to the

statute remedial; rather, it appears that the legislature simply intended to terminate

parents’ support obligations at an earlier age than permitted by the previous version of the

statute. For these reasons, we decline to apply the amended statute retroactively.

       Affirmed.

CRONE, J., and BRADFORD, J., concur.




and that Public Law 111-2012 will not affect that principle. However, it is unclear whether Public Law
111-2012 will affect existing obligations beyond the age of nineteen under dissolution agreements and
judgments, which may raise concerns under Article 1, Section 24 of the Indiana Constitution.
                                                 10
