Dunson v. Dunson

• Court: Indiana Supreme Court
• Writing for the Court: BOEHM, Justice.
• Citation: Dunson v. Dunson, 769 N.E.2d 1120 (Ind. 2002)
• Decision Date: 12 June 2002
• Docket Number: No. 34S02-0108-CV-370.,34S02-0108-CV-370.
• Parties: Chad DUNSON, Appellant (Petitioner Below), v. Terry and Teresa DUNSON, Appellees (Plaintiffs Below).

769 N.E.2d 1120

Chad DUNSON, Appellant (Petitioner Below), v. Terry and Teresa DUNSON, Appellees (Plaintiffs Below).

No. 34S02-0108-CV-370.

Supreme Court of Indiana.

June 12, 2002.

Dan J. May, Kokomo, IN, Attorney for Appellant.

Edward P. Dechert, Kokomo, IN, Attorney for Appellees.

BOEHM, Justice.

This case addresses the emancipation of a minor child who is not under the care or control of either parent. We hold that for a child to be emancipated pursuant to Indiana Code section 31-16-6-6(b)(3), the child must not only be under the care or control of neither parent, but the child must also (1) initiate the action putting the child outside the parents' control and (2) in fact be self-supporting.

Facts and Procedural Background

Terry and Teresa Dunson were married September 27, 1980, and had three children: Chad, born December 25, 1980; Tony, born April 16, 1982; and Joshua, born July 14, 1987. When the marriage was dissolved in 1991, Teresa was given custody of the three children and Terry was ordered to pay child support in the amount of $75 a week. After several modifications of Terry's support obligation, on August 11, 1998 the couple filed and the court approved an agreed entry granting physical custody of Joshua to Teresa and physical custody of Tony to Terry. The agreed entry provided for joint custody of Chad and stated, "It is anticipated that Chad will spend an equal amount of time with both parents." The agreed entry provided that because both Terry and Teresa were employed at Chrysler Motors, neither would pay child support. Finally, Terry agreed to pay $2,000 of delinquent support obligations.

On December 10, 1999, Chad filed a motion for provisional orders for child support. Chad asserted that his parents "abandoned" him in 1997 and since then have failed to provide him with any income or support. Chad requested a "provisional order for child support and an educational order retroactive to the date of the abandonment by the parents." In response, Terry filed a petition to emancipate Chad and terminate the support order.

After two hearings, at Chad's request, the trial court entered findings of facts and conclusions of law. The trial court found the following: Chad has not lived with his mother since he was 15 years old. In the fall of 1996, at the start of Chad's freshman year in high school, Chad and his brother moved to the home of an aunt. In the fall of 1997, Chad moved to the home of Brenda Hembree, another aunt, where "he still resides today." Neither parent has had physical custody, care, or control of Chad since the fall of 1996. The parents have provided Chad with little support since August 11, 1998,¹ and Chad has been dependent on his aunts for shelter, clothing, food, and parental supervision. Since the fall of 1996, Terry and Teresa have acquiesced in Chad's living arrangements with his maternal aunts, and neither parent has taken steps to exercise any parental rights under their agreed "joint custody." Teresa paid Hembree $70 a week for three months in late 1997, but has paid nothing since then. Terry has never paid Hembree for Chad's support. At the time of the hearing, Chad was a senior at Northwestern High School and was on schedule to graduate in June 2000. Chad has worked part-time jobs since living with Hembree, including working at McDonald's and serving in the National Guard, but his income has been less than $2,000 per year.

The trial court granted Chad's motion for relief from judgment due to fraud and rescinded the August 11, 1998 agreed order as it pertained to Chad. The trial court then granted Terry's motion to emancipate Chad on the ground that Chad had not been under the care or control of either parent as required by section 31-16-6(b)(3)(A) or (B).

The Court of Appeals held that Chad waived any appeal challenging his emancipation by failing to address the stated basis for the trial court's conclusion that Chad was emancipated. The Court of Appeals also found that Chad offered no "discernible argument" with respect to the trial court's denial of the support and educational orders, and held that Chad waived review of his argument that Hembree was a de facto custodian and therefore a necessary party to this proceeding by failing to raise the issue in the trial court. Dunson v. Dunson, 744 N.E.2d 960 (Ind.Ct.App. 2001). We granted transfer.

In this appeal, Chad argues: (1) the trial court erred in finding Chad emancipated; (2) the trial court erred in finding that Hembree was not a de facto custodian; and (3) that his parents should be responsible for his appellate attorney's fees under Indiana Code sections 34-10-1-2, 31-15-10-1, and 31-16-11-1. Chad requests that appropriate support be ordered against Chad's parents in favor of Hembree retroactive to August 11, 1998.

Standard of Review

The trial court's findings were entered pursuant to Indiana Trial Rule 52(A) which prohibits a reviewing court on appeal from setting aside the trial court's judgment "unless clearly erroneous." The court on appeal is to give due regard to "the opportunity of the trial court to judge the credibility of the witnesses." T.R. 52(A). When a trial court has made special findings of fact, as it did in this case, its judgment is "clearly erroneous only if (i) its findings of fact do not support its conclusions of law or (ii) its conclusions of law do not support its judgment." Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996).

I. The Requirements for Emancipation

"What constitutes emancipation is a question of law, while whether an emancipation has occurred is a question of fact." Quillen v. Quillen, 659 N.E.2d 566, 576 (Ind.Ct.App.1995) adopted in part by Quillen v. Quillen, 671 N.E.2d 98, 100 (Ind.1996). Emancipation cannot be presumed, but must be established by competent evidence by the party seeking emancipation. Id. Indiana Code section 31-16-6-6(b) provides:

(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.

(emphasis added). The trial court determined that emancipation was a factual question "dealing with parental control over a minor" and found that Chad was emancipated because (1) Chad had not resided with his parents since the fall of 1996, (2) it was Chad's sole decision to move in with the Hembrees, (3) neither of Chad's parents had physical custody, care, or control of Chad as required by section 6(b)(3)(A), and (4) the Hembrees alone provided for Chad's care, control, and support.

Although the Court of Appeals found Chad waived consideration of the emancipation issue by focusing his arguments on subsection (a)(3) rather than challenging the trial court's conclusion under subsection (b)(3), the Court of Appeals nevertheless found subsection (b)(3) controlling:

Recognizing that past decisions have addressed the emancipation question in terms of a child placing himself beyond the parental custody and his ability to support himself without parental assistance, we nevertheless conclude that section 31-16-6-6(b)(3)(A) unambiguously requires only that a child not be under the care or control of either parent to be found emancipated under Indiana law.

Dunson, 744 N.E.2d at 968-69. The Court of Appeals therefore affirmed the trial court's conclusion that Chad became emancipated by putting himself outside the care and control of his parents.

We disagree with the Court of Appeals' holding that emancipation requires only that a child not be under the care or control of either parent. Rather, we reaffirm the longstanding view that emancipation requires that (1) the child initiate the action putting itself outside the parents' control and (2) the child in fact be self-supporting.

Indiana Code section 31-16-1-2 states that "[t]he purpose and policy of [31-16-6 is] to provide for child support." We believe the legislature's intent in enacting the emancipation 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. Reading subsection (b)(3) in isolation to permit emancipation of children who are no longer under parents' care or control conflicts with this underlying purpose. If this "automatic emancipation" is permitted, parents are permitted to "divorce their children" and avoid paying child support simply by sending their children to live with a third party or, worse yet, just throwing the child out of the house.

In 1984, the legislature enacted what is now subsection (b), which provides that a child who joins the United States armed services, gets married, or is not under the care and control of either parent is emancipated. I.C. § 31-16-6-6. This language evolves from prior case law.² Green v. Green, 447 N.E.2d 605 (Ind.Ct.App.1983), trans. denied, involving the emancipation of a married daughter, was decided a year before the enactment of subsection (b). The court identified several situations in which a minor child may place itself beyond the control and support of its parent, including entering the military and "voluntarily leaving the home of a parent and assuming responsibility for its own care." Id. at 609. Green stated, "The salient feature of these situations is the child creates a new relationship between itself and its parent, relieving the parent from the responsibilities of support." Id. Green concluded that marriage of a minor child creates a similar relationship, and also emancipates the child. Id. at 610. We think the legislature intended to adhere to Green by enacting subsection (b), and did not intend to permit emancipation without the child's active participation. Thus we think the statutory...