Giselbach v. Giselbach

• Decision Date: 29 July 1985
• Docket Number: No. 2-983-A-344,2-983-A-344
• Citation: 481 N.E.2d 131
• Parties: Paul T. GISELBACH, Appellant, v. Brenda L. GISELBACH, Appellee.
• Court: Indiana Appellate Court

Page 131

481 N.E.2d 131

Paul T. GISELBACH, Appellant, v. Brenda L. GISELBACH, Appellee.

No. 2-983-A-344.

Court of Appeals of Indiana,

Second District.

July 29, 1985.

Edward B. Alley, Elwood, Ind., David W. Stone, Anderson, Ind., for appellant.

Philip Greene Decker, II, Anderson, Ind., for appellee.

SULLIVAN, Judge.

Paul T. Giselbach (Father) appeals the trial court's order which requires him to pay the college expenses of his son.

For the sake of clarity, Father's eight issues have been restated as follows:

(1) Whether the order was an improper, retroactive modification of the Father's support obligations, and an impermissible infringement upon his authority as custodial parent.

(2) Whether the order was improperly based upon ex parte evidence produced by Brenda Giselbach (Mother).

(3) Whether the trial judge's failure to order the appearance of the son constituted reversible error.

The parties were divorced on February 14, 1976, and although custody of the three minor children was awarded to Mother at that time, legal custody of the children has been alternated between the parties. The divorce decree made no express provision for educational expenses for any of the parties' children. On August 26, 1982, Mother filed a petition for modification of the divorce decree, seeking among other things, to require Father to pay the educational expenses of their only son. He allegedly had been residing with Mother during the summer of 1982 prior to entering Freed Hardeman College in Tennessee; however, the son continued to be in the legal custody of his father. The judgment entered on that petition on December 27, 1982, awarded Mother some of the relief requested, but did not include an order regarding educational expenses. Neither party appealed that judgment.

On February 9, 1983, barely six weeks after the order was entered on the August petition, Mother filed a second petition for modification captioned as an "emergency" petition. In this petition, Mother alleged that she had been laid off from her job and was unable to provide for her son's education, and that the son was facing expulsion from Freed Hardeman College for failure to pay the first year expenses and tuition. Mother requested that Father be held financially responsible for the son's future expenses at Freed Hardeman as well as for overdue expenses accrued since August, 1982. A hearing on the February petition was held on March 28, 1983. At the close of that hearing, the trial court directed Mother to provide detailed financial information concerning the cost of attending Freed Hardeman College. The court then took the matter under advisement, pending receipt of the financial information. On April 21, 1983, the court entered its order directing Father to pay $1,118.93 for tuition and related school expenses accrued through March 15, 1983. The order also contains language which implies that Father is responsible for all future educational expenses. ¹

Father presents a two-pronged argument in support of his contention that the order directing him to pay for his son's college education was invalid. He argues that only the legal custodian may determine the nature of a child's education, and asserts the Mother's petition for modification was granted in contravention of I.C. 31-1-11.5-12, ² which requires that a trial court make certain factual determinations prior to entering an order of support. Father also contends the trial court's order was an improper retroactive order of support.

We note initially that support orders for minor children are subject to the continuing jurisdiction of the dissolution court and may be modified to provide for changing needs. Modification of a support order, pursuant to I.C. 31-1-11.5-17, involves a factual determination that substantial and continuing, changed circumstances render the existing terms unreasonable. See Howard v. Reeck (1982) 2d Dist., Ind.App., 439 N.E.2d 727. This type of factual determination is committed to the discretion of the trial judge and is reviewable on appeal only for abuse of discretion. In re Marriage of Wiley (1983) 2d Dist., Ind.App., 444 N.E.2d 315, 317.

Father first argues that Mother's petition for modification was erroneously granted inasmuch as the parent with legal custody of the child has exclusive authority to determine whether, and to what extent to provide the child with a college education. Father has couched this argument in terms of Mother's standing to seek the modification. He asserts that Mother, the non-custodial parent, does not possess a legally cognizable interest in the outcome of this controversy and is therefore not the proper party to request a modification. We disagree.

While it is true that a grant of legal custody pursuant to I.C. 31-1-11.5-21 ³ carries with it the inherent, primary authority to make decisions concerning the child's upbringing, that authority is not absolute. See e.g., Lord v. Lord (1982) 4th Dist., Ind.App., 443 N.E.2d 847, 849 ("the non-custodial party must have some residual authority over discipline and health care when he or she has immediate physical control over the child"). With respect to educational matters, if the parties cannot resolve a dispute, I.C. 31-1-11.5-12 empowers the court to determine whether the parent or parents will be required to provide a college education and to allocate the costs of such education between the parents. The section provides in part:

"(b) Such child support order may also include, where appropriate:

(1) Sums for the child's education in elementary and secondary schools and at institutions of higher learning, taking into account the child's aptitude and ability and the ability of the parent or parents to meet these expenses[.]"

Thus even though there may be no absolute legal duty to provide a college education for a minor child, (Haag v. Haag (1959) 240 Ind. 291, 163 N.E.2d 243) an educational allowance may be included as an element of support. Howard v. Reeck, supra, 439 N.E.2d 727.

The cost of educating a child at an institution of higher learning is one of the many factors which may be considered in assessing the amount of support needed to adequately provide for a child's education and that amount may be required even beyond the age of majority. I.C. 31-1-11.5-12; Howard v. Reeck, supra. Thus the trial judge has considerable latitude in tailoring a support order to the needs of the child in question.

The statute clearly...