FOR PUBLICATION

                                                 Oct 31 2014, 9:57 am
ATTORNEY FOR APPELLANT:
JESSICA S. LACY
Law Office of Jessica S. Lacy
Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA


MICHAEL DWAIN NEAL,                          )
                                             )
      Appellant-Respondent,                  )
                                             )
             vs.                             )      No. 49A02-1404-DR-225
                                             )
AMANDA LEE AUSTIN,                           )
                                             )
      Appellee-Petitioner.                   )
                                             )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Robert R. Altice, Jr., Judge
                     The Honorable Kimberly Mattingly, Magistrate
                           Cause No. 49D05-0006-DR-830



                                  October 31, 2014


                          OPINION - FOR PUBLICATION


ROBB, Judge
                                          Case Summary and Issues

         Michael Dwain Neal (“Father”) appeals the trial court’s grant of Amanda Austin’s

(“Mother”) petition for post-secondary education expenses on behalf of their adult child,

A.N. Father raises two issues for our review: (1) as a matter of first impression, whether

the trial court had authority under Indiana Code section 31-16-6-6 to issue an order for

payment of educational support for a child who had reached the age of nineteen, where

the parties’ original child support order was issued in August of 2000 but the most recent

order concerning child support was issued after June 30, 2012; and (2) whether the

amount of post-secondary education support ordered by the trial court was an abuse of

discretion.      Concluding the trial court did not have authority to issue an order for

educational support, we reverse.1

                                        Facts and Procedural History

         Mother and Father divorced in August of 2000, and they share two children, K.N.

and A.N. At the time of their divorce, the parties entered into a settlement agreement

(“Settlement Agreement”) approved by the trial court.                           That Settlement Agreement

contained provisions imposing a duty on Father to pay child support in the amount of

$200 per week. The Settlement Agreement did not mention post-secondary education

expenses.

         On July 17, 2012, the trial court approved an agreed order submitted by the parties

(the “Agreed Order”). At that time, K.N. and A.N. were twenty and seventeen years old,

         1
          Because the trial court’s lack of authority to issue an educational support order is dispositive, we need not
consider whether the substance of the order constituted an abuse of the trial court’s discretion.

                                                          2
respectively. The Agreed Order recognized the emancipation by operation of law of

K.N., who was then over the age of nineteen.2 The Agreed Order also included a

modification of custody of A.N. and a modification of Father’s child support obligation,

decreasing the amount owed to $75 per week.

         A.N. turned nineteen years old on January 30, 2014, and thus, A.N. was

emancipated by law on that date. On January 31, 2014, Father filed his Verified Petition

for Emancipation and Immediate Termination of Child Support and Income Withholding.

On February 28, 2014, Mother filed her Petition for Educational Expenses. Father filed a

motion to dismiss Mother’s petition, but the trial court denied Father’s motion to dismiss.

         On March 7, 2014, the trial court held a hearing on the parties’ respective

petitions. On March 14, 2014, the trial court issued an order requiring Father to be

responsible for a portion of A.N.’s college education expenses. This appeal followed.

                                          Discussion and Decision

                                           I. Standard of Review

         Initially, we note that no appellee’s brief was filed on behalf of Mother or A.N.

When an appellee does not file a brief in response, the court is not required to advance

arguments on the appellee’s behalf. Maurer v. Cobb-Maurer, 994 N.E.2d 753, 755 (Ind.

Ct. App. 2013). In such a circumstance, we may ordinarily reverse if the appellant

presents a case of prima facie error. Id. However, even where an appellee brief is not




         2
          As will be discussed in greater detail below, Indiana law provides that the duty to pay child support, apart
from support for educational needs, ceases when a child becomes nineteen years old. See Ind. Code § 31-16-6-6(a).

                                                          3
filed, questions of law are nonetheless reviewed de novo. Svenstrup v. Svenstrup, 981

N.E.2d 138, 143 (Ind. Ct. App. 2012).

       We review a trial court’s decision to order the payment of post-secondary

educational expenses for an abuse of discretion. Hirsch v. Oliver, 970 N.E.2d 651, 662

(Ind. 2012). An abuse of discretion occurs when the decision is clearly against the logic

and effect of the facts and circumstances or when the trial court misinterprets the law.

Lovold v. Ellis, 988 N.E.2d 1144, 1150 (Ind. Ct. App. 2013). Questions of statutory

construction, which this case presents, are questions of law that are reviewed de novo.

Moryl v. Ransone, 4 N.E.3d 1133, 1137 (Ind. 2014).

                           II. Indiana Code section 31-16-6-6

       This appeal concerns the interpretation of Indiana Code section 31-16-6-6, which

governs the termination of child support and the emancipation of a child for the purposes

of a parent’s support obligation. 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, 970 N.E.2d at 655

(citation omitted).

       Prior to July 1, 2012, Indiana Code section 31-16-6-6 provided that a person’s

child support obligation, including the obligation to pay educational expenses, ceased

when the child became twenty-one years of age, unless certain special conditions were

met. See Ind. Code § 31-16-6-6 (2011). Effective July 1, 2012, our legislature amended

the statute: that amendment lowered the presumptive age for the termination of child

support from twenty-one to nineteen, but the amendment added that the terminated

                                           4
support obligation “does not include support for educational needs.” Compare Ind. Code

§ 31-16-6-6 (2012) (“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 . . . .”) with Ind. Code § 31-16-6-6 (2011) (“The duty to support a child under this

chapter ceases when the child becomes twenty-one (21) years of age . . . .”). And in May

2013, our legislature passed a second, retroactive amendment to the statute via Public

Law 207–2013, section 45, adding subsections (c), (d), and (e), which added filing

deadlines based on a child-petitioner’s age. The statute, in its current form, reads in

relevant part:

       (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.

       ***

       (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;

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

       (d) If a court has established a duty to support a child in a court order issued
       after June 30, 2012, the:
               (1) parent or guardian of the child; or
               (2) child;
       may file a petition for educational needs until the child becomes nineteen
       (19) years of age.

       (e) If:
              (1) an order was issued after June 30, 2012, that denied support for
              educational needs to a child who was less than twenty-one (21) years
              of age at the time the petition for educational needs was filed; and
              (2) support for educational needs was denied based on the fact that
              the child was older than eighteen (18) years of age;
       notwithstanding any other law, a parent or guardian of the child or the child
       may file with the court a subsequent petition for educational needs. The
       court shall consider the petition on the merits in accordance with this
       section and may not consider the absence of subsection (c) from law at the
       time of the initial filing.

Ind. Code § 31-16-6-6. According to Father’s reading of the statute, subsection (d)

precludes Mother or A.N. from seeking support for educational needs because A.N.

already reached the age of nineteen and the Agreed Order was approved by the trial court

after June 30, 2012. It would follow, then, that the trial court lacked statutory authority to

issue an order for educational expenses with respect to A.N.

       When considering the proper application of a statute, our primary goal in

interpreting that statute is to determine and give effect to the legislature’s intent. Adams

v. State, 960 N.E.2d 793, 798 (Ind. 2012). Our first step is to determine whether the

statute’s text is clear and unambiguous on the point in question. Id. Where a statute is

clear and unambiguous, we must apply the plain and ordinary meaning of the statute. Id.



                                              6
Conversely, where an ambiguity exists, we must resort to the rules of statutory

construction and endeavor to give effect to the legislature’s intent. Id.

       “[A] statute is ambiguous when it admits of more than one reasonable

interpretation.” Id. The statutory language before us is unquestionably ambiguous. The

phrase “a court has established a duty to support a child in a court order issued before [or

after] . . .” is subject to more than one reasonable interpretation. See Ind. Code § 31-16-

6-6(c), (d). On one hand, the phrase referring to a court order that “established a duty to

support a child” may refer to a trial court’s original order creating a child support

obligation. On the other hand, the language could be read to refer to the most recent

order establishing a child support obligation, which also defines the duty to support. Our

view is that our General Assembly intended the latter.

       At the outset, we make two observations regarding Indiana Code section

31-16-6-6 that guide us in our interpretation. First, there is no common law duty for a

parent to support his or her able-bodied adult child. Novak v. Chicago & Calumet Dist.

Transit Co., 235 Ind. 489, 493, 135 N.E.2d 1, 3 (1956). Nor does Indiana impose a

common law duty to provide a child with a college education. Haag v. Haag, 240 Ind.

291, 303-05, 163 N.E.2d 243, 248-49 (1959) (holding a father’s duty to support his minor

child did not include a duty to contribute to the cost of the minor child’s college

education).   Thus, to the extent that Indiana Code section 31-16-6-6 imposes an

obligation on parents to provide post-secondary educational support for an adult child,

the statute is in derogation of the common law. A statute in derogation of the common

law should be narrowly construed. Tittle v. Mahan, 582 N.E.2d 796, 800 (Ind. 1991),

                                              7
abrogated on other grounds by Quackenbush v. Lackey, 622 N.E.2d 1284 (Ind. 1993).

Second, if one thing is certain regarding the 2012 amendment of this statute, it is that the

primary purpose of the amendment was to reduce the age at which a parent’s support

obligation ceases—from twenty-one to nineteen. An interpretation of this statute that

results in allowing more people to continue to file for educational support after the age of

nineteen would stand in staunch contradiction to the overall purpose of ending support

obligations when a child turns nineteen. These two considerations, alone, lead us to a

narrow interpretation of the statute, whereby the relevant court order under subsections

(c) and (d) is the most recent order dealing with child support.

       Our conclusion is reinforced by our belief that the General Assembly’s 2013

retroactive amendment—adding subsections (c), (d), and (e)—was enacted with the intent

that unsuspecting children approaching the age of nineteen (or older) near the time of the

2012 amendment would not be denied the opportunity to request educational support.

The language of subsection (e) supports this understanding. Subsection (e)’s explicit

concern is with children whose petitions for educational expenses were denied—between

the 2012 and 2013 amendments—on the basis that a child was over the age of eighteen,

and it specifically references the corresponding addition of subsection (c) in its directive

that trial courts reconsider those petitions on the merits. See Ind. Code § 31-16-6-6(e).

This concern for unsuspecting children does not exist where, subsequent to the

amendments, there has been participation in the court system and a new support order,

because, presumably, the child and custodial parent are aware of the current law and the

age at which a child is legally emancipated. Frankly, it would make little sense to allow

                                             8
children with child support orders issued after June 30, 2012 to wait until the age of

twenty-one to pursue a claim for educational support, as it would be contrary to the spirit

of the 2012 amendment to Indiana Code section 31-16-6-6 and a gross deviation from the

common law. Reading subsections (c) and (d) as referring to the most recent support

order finds support in the language of the statute while also serving the purpose of

distinguishing the class of persons that the 2013 amendment was intended to address.

       In sum, we hold that Indiana Code section 31-16-6-6—and specifically

subsections (c) and (d)—necessitates that where the most recent order establishing a child

support obligation was issued after June 30, 2012, the child must file a petition for

educational needs before the child becomes nineteen years of age. Mother and A.N. are

not the sort of unsuspecting parties that we believe the General Assembly’s 2013

amendments were focused on.         Here, subsequent to the 2012 amendment, Mother

participated in the court system and obtained a support order (i.e. the Agreed Order) that

specifically referenced the updated statute’s effect of establishing nineteen as the age of

legal emancipation. Thus, Mother was aware of the statute’s requirement that a petition

for educational support must be filed before A.N. turned nineteen. The trial court issued

a support order concerning A.N. after June 30, 2012, and A.N. did not file his petition for

post-secondary educational expenses until after turning nineteen years old. Therefore,

A.N.’s petition was not filed within the limitations of Indiana Code section 31-16-6-6 and

the trial court lacked the authority to issue an order for educational expenses.




                                              9
                                      Conclusion

      We conclude the trial court did not have authority under Indiana Code section 31-

16-6-6 to issue an order for educational support for a child who was at least nineteen

years of age where the parties’ most recent order concerning child support was issued

after June 30, 2012. Therefore, we reverse.

      Reversed.

BAKER, J., and KIRSCH, J., concur.




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