MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                  Dec 22 2016, 8:25 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                             CLERK
                                                                  Indiana Supreme Court
court except for the purpose of establishing                         Court of Appeals
                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Kurt Brenneman                                          Gregory F. Zoeller
North Providence, Rhode Island                          Attorney General of Indiana
                                                        Frances H. Barrow
                                                        Andrea E. Rahman
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kurt Brenneman,                                         December 22, 2016
Appellant,                                              Court of Appeals Case No.
                                                        79A05-1508-DR-1074
        v.                                              Appeal from the Tippecanoe
                                                        Circuit Court
Lisa Brenneman and State of                             The Honorable Donald L. Daniel,
Indiana,                                                Special Judge
Appellees                                               Trial Court Cause No.
                                                        79C01-1103-DR-57



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1508-DR-1074 | December 22, 2016   Page 1 of 9
                                   Case Summary and Issues
[1]   The marriage of Kurt Brenneman (“Husband”) and Lisa Brenneman (“Wife”)

      was dissolved by a decree of dissolution entered by the trial court in 2002.

      Husband and wife had six children in their marriage, and, pursuant to the

      dissolution decree, Husband was ordered to pay child support. In 2014,

      Husband, pro se, filed a verified petition to modify child support, a motion for

      emergency hearing on the petition, and a motion to emancipate children.

      Husband served interrogatories to Wife, which remain unanswered despite the

      trial court granting Husband’s motion to compel discovery. Because he was

      unable to obtain his requested discovery, Husband refused to offer testimony or

      significantly participate in his child support modification hearing, and the trial

      court subsequently dismissed his petition and motions. On appeal from the

      dismissal of his filings, Husband raises several issues, none of which present a

      cogent argument. However, the State of Indiana concedes and, we agree, this

      case should be remanded for a new child support modification hearing with

      instructions to the trial court to order Wife to answer Husband’s interrogatories

      and provide the information in her possession pertaining to the children which

      was previously requested by Husband, and if necessary, hold a rule to show

      cause hearing.1




      1
          We thank the State for the clarity of their argument, and for conceding where appropriate.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1508-DR-1074 | December 22, 2016         Page 2 of 9
                              Facts and Procedural History                              2




[2]   Husband and Wife were married in 1984 and had six children in their marriage:

      Dannae, Marah, Caleb, Michaela, Amelia, and Adrianna. In September 2001,

      Wife filed a petition for dissolution of marriage and the trial court entered a

      decree of dissolution in 2002.3 Although one child has been emancipated by the

      trial court, Husband is currently subject to the trial court’s child support order

      for his other five children.


[3]   On September 27, 2014, Husband, proceeding pro se, filed a verified petition for

      modification of child support. Shortly thereafter, Husband filed a motion for

      emergency hearing on the petition, and a motion to emancipate children.

      Husband based his request to modify child support on the following claims:

                There has been a change amounting to significantly more than
                twenty percent (20%) in financial circumstances since the most
                recent Child Support Modification Order, 5/30/2012, as follows:


                a) On May 22, 2014, [Husband] and the stepmother . . . helped
                   Caleb Darius (age 21) relocate from Indiana to live at their
                   residence where he is now enrolled in the PBA Alternative
                   Admissions program at Rhode Island College.




      2
        Husband filed his Notice of Appeal on August 5, 2015. The State of Indiana filed a Motion to Modify
      Child Support on July 29, 2016, and again on November 1, 2016. A hearing on the State’s motion was
      scheduled for December 5, 2016 at 11:00 a.m. Husband filed an emergency motion to stay with this court on
      December 5, 2016 at 9:08 a.m. An order on Husband’s motion to stay has been issued with this opinion.
      3
          Husband now lives in Rhode Island.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1508-DR-1074 | December 22, 2016      Page 3 of 9
              b) The number of children who are currently dependent on the
                 custodial parent has decreased from five (5) to two (2),
                 Amelia . . . and Adrianna . . . . Amelia is of majority age (18)
                 and has been employed part-time . . . over the past two years.
                 She will graduate this academic year . . . . Adrianna will be of
                 majority age (18) on 12/13/2016, . . . and will graduate in the
                 spring of 2017.


      Appellant’s Appendix at 52-53 (citation omitted). Husband also argued neither

      parent should be responsible for paying any post-secondary education expenses

      for any child. Along with his petition for modification of child support,

      Husband served interrogatories to Wife, seeking, among a wide array of

      material, information about his children, their ages, and whether any of the

      children were emancipated. When Husband did not receive a response to his

      interrogatories, he filed a motion to compel discovery on February 23, 2015.

      On March 11, 2015, the trial court granted Husband’s motion to compel and

      ordered Wife to respond to Husband’s interrogatories within thirty days.

      Husband still has not received answers to his interrogatories.


[4]   On June 3, 2015, the trial court held a hearing on various motions and petitions

      filed by Husband, including Husband’s verified petition to modify child support

      and motion to emancipate children. During the hearing, Husband raised the

      issue that Amelia, one of the two remaining children yet to reach the age of

      emancipation, may have enlisted with the Marines; therefore, she also may

      have been emancipated. The trial court gave Husband multiple opportunities to

      address his various claims of emancipation and child support; however, he

      refused to offer any testimony because he claimed he had not received the

      Court of Appeals of Indiana | Memorandum Decision 79A05-1508-DR-1074 | December 22, 2016   Page 4 of 9
      discovery he needed to proceed. When asked what specific discovery Husband

      needed, he responded,


              Everything that I have asked for. I petitioned for a motion for
              production of—for production. I’ve submitted interrogatories
              back on November the 6th along with a second request for
              production. I have received absolutely nothing and furthermore
              at this stage I have supplemental—second interrogatories so I
              cannot proceed period without discovery . . . . It is my
              understanding that none of them are in school at this time and
              haven’t been and the word is . . . that Amelia has entered military
              service with the Marines, I don’t know if that’s true or not
              because I haven’t received answers to the interrogatories.


      Transcript at 29-30. Because he refused to offer testimony or significantly

      participate in the hearing, the trial court dismissed Husband’s verified petition

      for modification of child support. Husband now appeals.



                                Discussion and Decision
[5]   In this case, the trial court dismissed Husband’s petition to modify child

      support, which effectively denied his petition. A trial court’s decision regarding

      child support modification is reviewed for abuse of discretion. Lovold v. Ellis,

      988 N.E.2d 1144, 1149-50 (Ind. Ct. App. 2013). An abuse of discretion occurs

      when a trial court’s decision is against the logic and effect of the facts and

      circumstances before it or if the court has misinterpreted the law. Id. at 1150.

      When reviewing a decision for an abuse of discretion, we consider only the

      evidence and reasonable inferences favorable to the judgment. Id.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1508-DR-1074 | December 22, 2016   Page 5 of 9
[6]   Husband’s petition to modify child support was based on the following claims:

      (1) he helped his son, Caleb, relocate to Rhode Island to live with him and

      attend college; (2) three (potentially four) of his children have been emancipated

      by operation of law; and (3) he asserted neither parent should be obligated to

      pay any post-secondary education expenses for any child.


[7]   Indiana Code section 31-16-8-1(b) sets forth the circumstances under which a

      child support order may be modified:


              (1) upon a showing of changed circumstances so substantial and
                  continuing as to make the terms unreasonable; or

              (2) upon a showing that:

                      (A) a party has been ordered to pay an amount in child
                      support that differs by more than twenty percent (20%)
                      from the amount that would be ordered by applying the
                      child support guidelines; and

                      (B) the order requested to be modified or revoked was
                      issued at least twelve (12) months before the petition
                      requesting modification was filed.


[8]   Indiana Code section 31-16-6-6 sets forth the circumstances under which a child

      may be deemed emancipated:

              (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:




      Court of Appeals of Indiana | Memorandum Decision 79A05-1508-DR-1074 | December 22, 2016   Page 6 of 9
                      (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.

              ***

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

                      (1) is on active duty in the United States armed services
                      . . . the court shall find the child emancipated and
                      terminate the child support.


      The party seeking modification bears the burden of establishing that the

      statutory requirements have been satisfied. Hedrick v. Gilbert, 17 N.E.3d 321,

      327 (Ind. Ct. App. 2014). A party seeking emancipation must establish it by

      competent evidence. Hirsch v. Oliver, 970 N.E.2d 651, 655 (Ind. 2012).


[9]   Initially, we note Wife has not responded to Husband’s interrogatories. The

      Indiana Rules of Trial Procedure allow a party to obtain discovery regarding

      any relevant, unprivileged matter that is reasonably calculated to lead to the

      discovery of admissible evidence. Ind. Trial Rule 26(B). “Any party may serve

      upon any other party written interrogatories to be answered by the party served

      . . . who shall furnish such information as is available to the party.” Ind. Trial

      Rule 33(A). Interrogatories may be served upon the opposing party after

      commencement of the action without leave of court. Id.



      Court of Appeals of Indiana | Memorandum Decision 79A05-1508-DR-1074 | December 22, 2016   Page 7 of 9
[10]   Husband served his first set of interrogatories to Wife on September 27, 2014,

       seeking, among other things, information about his children, their ages, and

       whether any of the children are emancipated. When Husband did not receive a

       response to his interrogatories, he filed a motion to compel discovery on

       February 23, 2015. On March 11, 2015, the trial court granted Husband’s

       motion to compel and ordered Wife to respond to Husband’s interrogatories

       within thirty days; wife has yet to provide the requested information.


[11]   At the modification hearing in June 2015, Husband raised the issue that his

       daughter, Amelia, may have enlisted in the Marines; therefore, she may be

       emancipated by operation of law. Ind. Code § 31-16-6-6(b)(1). Husband has no

       other access to this information and the State concedes it was error to proceed

       with the modification hearing without completing discovery. Appellee’s Brief

       at 13-14.


[12]   The State also admits Husband’s argument that some of his children may have

       reached the age of emancipation has merit, and he should no longer be subject

       to a child support order for those children. Appellee’s Br. at 12-13. At the

       modification hearing, Husband appeared telephonically and refused to

       significantly participate because he had not received the discovery he had

       requested. Although he could have simply testified about his children’s ages




       Court of Appeals of Indiana | Memorandum Decision 79A05-1508-DR-1074 | December 22, 2016   Page 8 of 9
       from his own personal knowledge, he did not do so.4 Regardless, the State

       concedes and, we agree, this case should be remanded for a new child support

       modification hearing.5 On remand, we instruct the trial court to first order Wife

       to provide the information in her possession regarding the status of their

       children which was previously requested by Husband in his interrogatories and

       then to hold another hearing regarding Husband’s petition to modify.



                                                  Conclusion
[13]   We reverse the trial court’s dismissal of Husband’s petition to modify child

       support and remand for a new modification hearing to determine when each

       child was emancipated as conceded by the State in its pleading of July 29, 2016

       and again on November 1, 2016. On remand, we instruct the trial court to first

       order Wife to answer Husband’s interrogatories pertaining to the status of their

       children.


[14]   Reversed and remanded.


       Mathias, J., and Brown, J., concur.




       4
        Husband has elected to proceed pro se. Pro se litigants are subject to the same standards as trained
       attorneys and is afforded no inherent leniency simply by virtue of self-representation. Zavodnik v. Harper, 17
       N.E.3d 259, 266 (Ind. 2014).
       5
         We note the general rule in Indiana is that retroactive modification of support payments is erroneous if the
       modification relates back to a date earlier than the filing of a petition to modify. Donegan v. Donegan, 605
       N.E.2d 132, 133 n.1 (Ind. 1992). However, unlike a claim of change of circumstances requiring modification
       of child support, an assertion of emancipation is deemed effective as of the date of emancipation, rather than
       the date of filing of the petition. Id. at 133.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1508-DR-1074 | December 22, 2016            Page 9 of 9
