MEMORANDUM DECISION                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Mar 16 2017, 9:20 am

this Memorandum Decision shall not be                                         CLERK
                                                                          Indiana Supreme Court
regarded as precedent or cited before any                                    Court of Appeals
                                                                               and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Anthony J. Saunders                                     John L. Davis
New Castle, Indiana                                     Pritzke & Davis, LLP
                                                        Greenfield, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Eric Kennedy,                                           March 16, 2017
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        33A04-1609-DR-2122
        v.                                              Appeal from the Henry Circuit
                                                        Court
Michelle M. Wade,                                       The Honorable Kit C. Dean Crane,
Appellee-Petitioner.                                    Judge
                                                        Trial Court Cause No.
                                                        33C02-1108-DR-107



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A04-1609-DR-2122 | March 16, 2017             Page 1 of 12
                               STATEMENT OF THE CASE
[1]   Appellant-Respondent, Eric Kennedy (Father), appeals the trial court’s

      modification of child support and entry of post-secondary educational expenses.


[2]   We affirm.


                                                  ISSUES
[3]   Father raises one issue on appeal which we restate as the following two issues:


          (1) Whether the trial court abused its discretion in calculating Father’s

              weekly income for child support purposes; and

          (2) Whether the trial court committed clear error by establishing post-

              secondary educational expenses for an out-of-state university.


                      FACTS AND PROCEDURAL HISTORY
[4]   A decree of dissolution of marriage between Father and Appellee-Petitioner,

      Michelle Wade (Mother), was entered on May 11, 2012. During the marriage,

      four children were born. In the decree, Mother was granted physical custody of

      the children, with Father ordered to pay a weekly child support obligation in

      the amount of $320. Father owns and operates his own business and Mother is

      a sole practicing attorney who practices law out of her residence.


[5]   On July 29, 2015, Father filed his verified petition for modification of child

      support. On February 11, 2016, Mother filed a verified petition for rule to show

      cause and a petition to modify child support and request to order contribution

      towards the oldest child’s, K.K., post-secondary educational expenses. On May

      Court of Appeals of Indiana | Memorandum Decision 33A04-1609-DR-2122 | March 16, 2017   Page 2 of 12
      9, 2016, Mother also filed a verified petition for sanctions with respect to

      Father’s failure to comply with Mother’s ongoing discovery requests.


[6]   On May 20, 2016, the trial court conducted a hearing on the parties’ pending

      petitions. During the hearing, the trial court dismissed Father’s verified petition

      to modify child support as part of the sanctions the trial court entered for

      Father’s ongoing discovery violations. The trial court also limited the income

      information Father was allowed to introduce into evidence to Father’s income

      for the fiscal years 2012, 2013, and 2014. The parties agreed to average Father’s

      income during those years and for the trial court to use that average in

      calculating Father’s gross weekly income for child support purposes.


[7]   On June 3, 2016, the trial court issued its Order, providing, in pertinent part:

              11. The parties are the parents of four (4) children, and the oldest
              child, [K.K.], is eighteen (18) years of age and has been accepted
              to Arizona State University, Purdue University, and Ball State
              University. The child has the aptitude for college and the parties
              have the means to assist with the expenses for post-high school
              education.


              12. The child prefers Arizona State University and intends to
              major in education and to teach in Arizona. First year tuition is
              higher than the Indiana schools which have accepted her but the
              other costs are similar. After one year to establish residency, she
              would be considered an Arizona resident entitled to in-state
              tuition. The parents are capable of assisting for the first year at
              Arizona State with the tuition, room, board, books and fees,
              minus [K.K.’s] student loan of Five Thousand Five Hundred
              Dollars ($5,500.00), One Thousand Three Hundred Dollars
              ($1,300.00) from a 529 account and Two Thousand Dollars

      Court of Appeals of Indiana | Memorandum Decision 33A04-1609-DR-2122 | March 16, 2017   Page 3 of 12
              ($2,000.00) in earnings, being divided between the parties based
              upon their percentages of the total income as set forth in the
              Child Support Obligation Worksheet (CSOW) attached hereto as
              Exhibit A, which shall be a part of this Order. For future years,
              the parties shall use the post-high school education worksheet
              using the same percentages as set forth herein but with new cost
              figures and contribution figures for [K.K.], and shall be divided
              between the parents based upon the percentages set forth in
              Exhibit A.


              13. A change in circumstances has occurred which requires a
              modification of the child support for the minor children. Said
              child support shall be retroactive to and shall begin on February
              12, 2016 and shall continue to the last Friday before the oldest
              child commences college. [Father] shall pay support in the
              amount of Four Hundred Thirty-Nine Dollars ($439.00) per
              week during this time period per the CSOW attached hereto and
              made a part hereof as Exhibit A.


              ****


              15. The [c]ourt shall average the incomes of the parties for 2012,
              2013, and 2014 to obtain appropriate numbers for child support
              income.


      (Appellant’s App. Vol II, pp. 20-21).


[8]   Father now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                      I. Modification of Child Support




      Court of Appeals of Indiana | Memorandum Decision 33A04-1609-DR-2122 | March 16, 2017   Page 4 of 12
[9]    Father contends that the trial court abused its discretion when calculating his

       modified child support obligation. In reviewing a trial court’s order on a

       request to modify child support, we will reverse for an abuse of discretion.

       Holtzleiter v. Holtzleiter, 944 N.E.2d 502, 505 (Ind. Ct. App. 2011). An abuse of

       discretion occurs only when the decision is clearly against the logic and effect of

       the facts and the circumstances before the court, including any reasonable

       inferences that may be drawn therefrom. Id. The court has previously observed

       that “the importance of first-person observation and preventing disruption to

       the family settings justifies deference to the trial court.” Id.


[10]   Here, the trial court entered findings sua sponte. Sua sponte findings control only

       as to the issues they cover and a general judgment will control as to the issues

       upon which there are no findings. Walters v. Walters, 901 N.E.2d 508, 510 (Ind.

       Ct. App. 2009) (citing Gibbs v. Kashak, 883 N.E.2d 825, 827-28 (Ind. Ct. App.

       2008)). A general judgment entered with findings will be affirmed if it can be

       sustained on any legal theory supported by the evidence. Id. When a court has

       made special findings of fact, an appellate court reviews sufficiency of evidence

       using a two-step process. Id. First, it must determine whether the evidence

       supports the trial court’s findings of fact; second, it must determine whether

       those findings of fact support the trial court’s conclusions of law. Id. Findings

       will be set aside if they are clearly erroneous. Id. Findings are clearly erroneous

       only when the record contains no facts to support them either directly or by

       inferences. Id. A judgment is clearly erroneous if it applies the wrong legal

       standard to properly found facts. Id. In order to determine that a finding or

       Court of Appeals of Indiana | Memorandum Decision 33A04-1609-DR-2122 | March 16, 2017   Page 5 of 12
       conclusion is clearly erroneous, an appellate court’s review of the evidence must

       leave it with the firm conviction that a mistake has been made. Id.


[11]   While Father does not dispute Mother’s request to modify the child support per

       se, he does challenge the trial court’s calculation of his modified child support

       obligation. The Indiana Child Support Guidelines (Guidelines) aid in the

       determination of the amount of child support that should be awarded and

       provide a measure for calculating each parent’s share of the child support. In re

       Paternity of G.R.G., 829 N.E.2d 114, 118 (Ind. Ct. App. 2005). “There is a

       rebuttable presumption that the amount of the award resulting from the

       application of the Indiana Child Support Guidelines is the correct amount to be

       awarded.” Id. (citing Lea v. Lea, 691 N.E.2d 1214, 1217 (Ind. 1998)).


[12]   To determine whether a child support order complies with the child support

       guidelines, we must first know the basis for the amount awarded. Heiligenstein

       v. Matney, 691 N.E.2d 1297, 1303 (Ind. Ct. App.1998). “Such revelation could

       be accomplished either by specific findings or by incorporating a proper

       worksheet.” Id. Accordingly, since 1989, the Guidelines have required, in all

       cases in which the trial court is requested to order support, that both parties

       complete and sign, under penalty of perjury, a child support worksheet to be

       filed with the court verifying the parents’ incomes. See Ind. Child Support

       Guideline 3(B)(1); Payton v. Payton, 847 N.E.2d 251, 253 (Ind. Ct. App. 2006).

       Here, only Mother entered a completed, but unsigned, child support worksheet

       into evidence during the hearing. While neither party submitted a verified child

       support worksheet, the trial court made its own calculations based on the

       Court of Appeals of Indiana | Memorandum Decision 33A04-1609-DR-2122 | March 16, 2017   Page 6 of 12
       findings in its Order and prepared its own child support worksheet, attached to

       its Order. As “the Guidelines are not meant to be a trap for the unwary but are

       intended to lead the way to a fair result in a complicated area of law,” we will

       review Father’s contentions based on the calculations made by the trial court.

       Holtzleiter, 944 N.E.2d at 506.


[13]   Father disputes that the trial court’s calculation of his weekly gross income is

       supported by the tax returns that were introduced into evidence at the hearing.

       While not disagreeing with the trial court’s method of averaging his 2012, 2013,

       and 2014 income, Father contends that the trial court should have used his

       adjusted gross income and not his gross income as the basis of its computations.


[14]   When fashioning a child support order, the trial court’s first task is to determine

       the weekly gross income of each parent. In re G.R.G., 829 N.E.2d at 118.

       “Weekly gross income” is broadly defined to include not only actual income

       from employment but also potential income and imputed income from “in-

       kind” benefits. Id. Guideline 3(A) encompasses in the definition of “gross

       income” “income from salaries, wages, . . . , bonuses, overtime, partnership

       distributions, [and] dividends[.]” The definition of weekly gross income for

       purposes of self-employment for the operation of a business includes “gross

       receipts minus ordinary and necessary expenses.” Child Supp. G. 3(A)(2).


[15]   Here, the trial court used Father’s gross income as reported on his tax returns of

       2012, 2013, and 2014 as the basis of its calculations. Pursuant to his tax

       returns, Father’s gross income in 2012 amounted to $152,000. This number


       Court of Appeals of Indiana | Memorandum Decision 33A04-1609-DR-2122 | March 16, 2017   Page 7 of 12
       was reported as being the combined business income from wages, S

       corporation, and gains. Upon being asked to confirm this number as his total

       income for 2012, Father replied “If that’s what’s reported, that’s what’s

       reported.” (Tr. p. 51). Father’s reported business income for 2013 was

       $153,787. Based on Father’s 2014 business tax return, Father’s reported

       income was $119,731, which was calculated by adding the compensation paid

       to Father in the amount of $57,336 with the distributions made to Father of

       $62,395. Accordingly, the trial court determined Father’s aggregate gross

       income for the three years to be $425,518, which averaged to $141,839 gross

       yearly income. Based on this average gross income, the trial court computed

       Father’s weekly gross income for purposes of child support.


[16]   Father argues that instead of his gross income, the trial court should have used

       his adjusted gross income, as reported on his taxes, and which would have

       amounted to a weekly income of $1,884. We have previously noted that the

       calculation of a parent’s income for support purposes is more inclusive than for

       income tax purposes. Clark v. Madden, 725 N.E.2d 100, 107 (Ind. Ct. App.

       2000). In particular, the trial court is vested with discretion regarding the

       validity of business expenses and deductions taken for tax purposes by a

       business owner. Zakrowski v. Zakrowski, 594 N.E.2d 821, 824 (Ind. Ct. App.

       1992). It is clear that the trial court relied on the Guidelines’ broad definition of

       gross income for self-employed parents to support its calculations. Moreover,

       Father did not submit any evidence reflecting ordinary and necessary expenses

       that the trial court should have considered in its computations. In essence,


       Court of Appeals of Indiana | Memorandum Decision 33A04-1609-DR-2122 | March 16, 2017   Page 8 of 12
       Father’s argument to calculate his child support obligation based on his

       preferred income attributions amounts to nothing more than a request to

       reweigh the evidence. Accordingly, we cannot conclude that the trial court

       abused its discretion in calculating Father’s income.


                                  II. Post-Secondary Educational Expenses


[17]   Next, Father contests the trial court’s treatment of post-secondary educational

       expenses. While Father does not challenge K.K.’s aptitude for post-secondary

       education or the apportionment of costs thereof, Father takes umbrage with the

       award of out-of-state post-secondary educational expenses. When we review a

       challenge to an order apportioning college expenses, we apply a clearly

       erroneous standard. Carson v. Carson, 875 N.E.2d 484, 485-86 (Ind. Ct. App.

       2007). Clear error occurs where the trial court’s decision is clearly against the

       logic and effect of the facts and circumstances before it and we are left with a

       firm conviction that a mistake has been made. Id.


[18]   Under Indiana law, there is no absolute legal duty on the part of parents to

       provide a college education for their children. Hinesley-Petry v. Petry, 894

       N.E.2d 277, 280 (Ind. Ct. App. 2008), trans. denied. 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. at 280-81. In determining whether to order either or both parents to pay


       Court of Appeals of Indiana | Memorandum Decision 33A04-1609-DR-2122 | March 16, 2017   Page 9 of 12
       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. at 281.


[19]   The purpose of an educational support order is the welfare of the child and not

       the punishment of the noncustodial parent. Id. It must be fair, not confiscatory

       in amount and intended to provide a reasonable allowance for support,

       considering the property, income, and earning capacity of the noncustodial

       parent, and the station of life of the family. Id. It is within the discretion of the

       trial court to determine under all the circumstances what is just and equitable to

       the child and to the noncustodial parent. Id.


[20]   Father does not claim he cannot afford to pay for K.K.’s post-educational

       expenses, merely that K.K.’s decision is not substantiated in that a degree from

       Arizona State University is “more valuable, that it is more sought after by

       employers, that it is more prestigious, or that it is, in any way superior to a

       Purdue or Ball State teaching degree.” (Appellant’s Reply Br. p. 7). However,

       we have long rejected a bright-line rule that would limit children to educational

       support commensurate with in-state, state-supported colleges. Rohn v. Thuma,

       408 N.E.2d 578, 582-83 (Ind. Ct. App. 1980). Rather, we held that these cases

       are more properly determined on a case-by-case basis, with the trial court

       balancing the advantages of the more expensive college in relation to the needs

       and abilities of the child with the increased hardship on the parent. Id. at 583.




       Court of Appeals of Indiana | Memorandum Decision 33A04-1609-DR-2122 | March 16, 2017   Page 10 of 12
[21]   The record reflects that although K.K. had received acceptance offers from

       Purdue University and Ball State University, she elected to attend Arizona State

       University and to pursue a career in Arizona after her college education.

       Mother testified that Mother had purchased a residence in Arizona, near K.K.’s

       maternal grandparents, who live approximately fifteen miles from the

       university’s campus. Evidence establishes that first year tuition will be $25,458,

       which was about $15,000 more than tuition for an in-state student at Purdue

       University. After her first year at Arizona State University, K.K. would qualify

       for in-state student rates, which would make the tuition comparable to Purdue

       University. Accordingly, the post-educational expenses would decrease

       significantly after the first year. The trial court ordered K.K. to contribute to

       her educational expenses, and apportioned the remainder between the parents,

       based on their respective income.


[22]   Based on the facts before us, we cannot say that the trial court committed a

       clear error by apportioning post-educational expenses for an out-of-state

       university.


                                             CONCLUSION
[23]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when calculating Father’s child support obligation and the court did

       not commit clear error in apportioning post-secondary educational expenses at

       an out-of-state university.


[24]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 33A04-1609-DR-2122 | March 16, 2017   Page 11 of 12
[25]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 33A04-1609-DR-2122 | March 16, 2017   Page 12 of 12
