Butrum v. Roman

• Court: Indiana Appellate Court
• Writing for the Court: VAIDIK.
• Citation: Butrum v. Roman, 803 N.E.2d 1139 (Ind. App. 2004)
• Decision Date: 24 February 2004
• Docket Number: No. 84A04-0308-JV-389.,84A04-0308-JV-389.
• Parties: Jeffrey O. BUTRUM, Appellant-Respondent, v. Kathy L. ROMAN, Appellee-Petitioner.

803 N.E.2d 1139

Jeffrey O. BUTRUM, Appellant-Respondent, v. Kathy L. ROMAN, Appellee-Petitioner.

No. 84A04-0308-JV-389.

Court of Appeals of Indiana.

February 24, 2004.

John A. Kesler II, Kesler & Kesler, Terre Haute, IN, for Appellant.

OPINION

VAIDIK, Judge.

Case Summary

Jeffrey O. Butrum ("Father") appeals the trial court's order denying his petition to emancipate his daughter. Specifically, Father contends that because his daughter was eighteen years old, living with her boyfriend, working full-time, and not yet enrolled in college, she was emancipated pursuant to Indiana Code § 31-16-6-6. Because the daughter was still being financially supported by her parents, working full-time to save money for college, and living rent-free with her boyfriend, Father has failed to prove that his daughter was self-supporting or capable of supporting herself. Accordingly, we affirm the trial court's order that daughter was not emancipated.

Facts and Procedural History

Father and Kathy L. Roman ("Mother") have a daughter, H.R. H.R. turned eighteen years old on May 14, 2002. Around that same time, H.R. graduated from high school and moved in with her boyfriend. From May 2002 to January 2003, H.R. and her boyfriend lived together rent-free in a house owned by the boyfriend's family. During this time period, H.R. worked full-time at a bank, earning approximately $7000 in 2002. Since high school, H.R. planned on going to college. Because she thought that she would have financial trouble, H.R. took the 2002 fall semester off and worked full-time to save money for college. While H.R. was living with her boyfriend and working full-time, she still received financial support from her parents.

In September 2002, H.R. filled out an application to Purdue University for the 2003 spring semester. H.R. was accepted to Purdue, and in January 2003 she moved into an apartment in West Lafayette with three other girls and began taking classes. H.R. was awarded various scholarships that covered her tuition, fees, and books for the 2003 spring semester, and she took out a Stafford Loan to help cover her living expenses.

While H.R. was living with her boyfriend and working full-time but after H.R. had filled out an application to Purdue, Mother filed a Petition to Modify Child Support and for Contribution Toward College Expenses. On November 4, 2002, Father filed a petition to emancipate H.R. The trial court held a hearing on both motions and issued an order concluding that H.R. was emancipated for child support purposes. However, the trial court withheld an order on college expenses pending further argument from the parties.

Mother timely filed a motion to correct error on grounds that the case the trial court relied on in issuing its order emancipating H.R. had been vacated. The trial court granted Mother's motion to correct error concluding that H.R. was not emancipated, increased Father's child support from $45.00 per week to $92.00 per week,¹ and ordered Father to pay 51% and Mother to pay 49% of H.R.'s future college expenses not met by available financial assistance. Father filed a motion to correct error, which the trial court denied. This appeal ensued.

Discussion and Decision

At the outset, we note that Mother has failed to file an appellee's brief. In such a case, we need not undertake the burden of developing arguments for the appellee. Painter v. Painter, 773 N.E.2d 281, 282 (Ind.Ct.App.2002). Applying a less stringent standard of review, we may reverse the trial court if the appellant establishes prima facie error. Id. "Prima facie" is defined as "at first sight," "on first appearance," or "on the face of it." Id. Father contends that the trial court erred in concluding that H.R. was not emancipated.² In its orders, the trial court entered findings and conclusions sua sponte. When a court enters such findings, the specific findings control only as to the issues they cover, and a general judgment standard applies to any issue upon which the court has not entered findings. Borders v. Noel, 800 N.E.2d 586, 588 (Ind. Ct.App.2003). We may affirm a general judgment on any theory supported by the evidence. Id. The judgment will be reversed only if it is clearly erroneous. Id. In determining whether the findings or judgment are clearly erroneous, we consider only the evidence most favorable to the judgment. Id. In doing so, we neither reweigh evidence nor judge witness credibility. Id.

"What constitutes emancipation is a question of law, while whether an emancipation has occurred is a question of fact." Dunson v. Dunson, 769 N.E.2d 1120, 1123 (Ind.2002) (quotation omitted). Emancipation cannot be presumed; rather, the party seeking emancipation must establish it by competent evidence. Id. Indiana Code § 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. at 1124. Specifically, Indiana Code § 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:

(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.

According to this statute, there are four ways to establish emancipation, specifically subsections (a)(3), (b)(1), (b)(2), and (b)(3). A child may not qualify for emancipation under one of the subsections yet may meet the requirements for emancipation under another. See Borders, 800 N.E.2d at 591. Therefore, a trial court should consider all four subsections when making an emancipation determination.

On appeal, Father argues that H.R. is emancipated pursuant to both subsection (a)(3) and (b)(3). We address each of these subsections in turn.

I. Subsection (a)(3): Enrolled in School and Capable of Supporting Self

Subsection (a)(3) provides that the duty to support a child ceases if three requirements are met: (1) the child is at least eighteen years old; (2) the child has not attended school for the prior four months and is not enrolled in school; and (3) the child is or is capable of supporting himself or herself. All three requirements must be met before emancipation is permissible. In this case, the trial court concluded that H.R. was not emancipated because although H.R. was at least eighteen years old, she was enrolled in Purdue and was neither self-supporting nor capable of supporting herself. Father claims that both of these findings are clearly erroneous because when he filed his petition for emancipation in November 2002, H.R., who was eighteen years old, had not yet been accepted to Purdue and was either self-supporting or capable of supporting herself by virtue of the fact that she was living with her boyfriend and working full-time. Since all parties agree that H.R. was at least eighteen years old, we now sequentially turn to whether H.R. was enrolled in school and whether she was self-supporting or capable of supporting herself.

In order to be emancipated a child must have "not attended a secondary or postsecondary school for the prior four (4) months and is not enrolled in a secondary or postsecondary school[.]" Ind.Code § 31-16-6-6(a)(3)(B) (emphases added). Father filed his petition for emancipation on November 4, 2002. Four months prior to the date is July 4, 2002. From July 4, 2002, to November 4, 2002, H.R. had not attended a secondary or postsecondary school. The question then becomes whether H.R. was enrolled in a postsecondary school as of November 4, 2002. The trial court found that she was. As explained below, we conclude that this finding is clearly erroneous.

At the hearing, H.R. testified on direct examination that she "had been enrolled since August [2002] for the January [2003] semester" at Purdue. Tr. of March Hearing p. 6. However, the record shows that H.R. signed the application to Purdue on September 23, 2002, and her high school guidance counselor signed the application on September 24, 2002. Respondent's Exhibit 2. Furthermore, on cross-examination, Father's attorney asked H.R. if she was enrolled in Purdue as of November 4, 2002, the date Father filed his petition for emancipation. H.R. responded as follows:

As far as being enrolled and everything set out as ... I'm not totally sure. I'm not going to say "yes" or "no". But I already know that the application process had already been begun and the

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