Liddy v. Liddy

• Decision Date: 20 February 2008
• Docket Number: No. 49A05-0708-CV-444.,49A05-0708-CV-444.
• Parties: Mark LIDDY, Appellant-Petitioner, v. Kathleen LIDDY, Appellee-Respondent.
• Court: Indiana Appellate Court

881 N.E.2d 62

Mark LIDDY, Appellant-Petitioner, v. Kathleen LIDDY, Appellee-Respondent.

No. 49A05-0708-CV-444.

Court of Appeals of Indiana.

February 20, 2008.

Judy. M. Tyrrell, Tabbert Hahn Earnest & Weddle, LLP, Indianapolis, IN, Attorney for Appellant.

Holly L. Lyons, Greenfield, IN, Attorney for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

During marital dissolution proceedings between Mark and Kathleen Liddy, Mark asked the trial court to declare his twenty-one-year-old son, A.L., emancipated. Kathleen countered that A.L.'s schizoaffective disorder rendered him incapacitated and, therefore, in continuing need of child support. The trial court denied Mark's request for emancipation and ordered him to pay $500 per month in child support. Mark now appeals, arguing that the trial court improperly placed the burden upon him to show that A.L. is not incapacitated and that the court erred by prospectively awarding custody of A.L. to Kathleen and by failing to follow the Indiana Child Support Guidelines. We agree that Kathleen bore the burden of proving A.L.'s incapacitation. However, we find that there is no indication that the trial court improperly allocated this burden and that the court did not err in deeming A.L. incapacitated. Further, we find that, rather than issuing a prospective custody order, the trial court granted custody of A.L. to Kathleen. Finally, we find that the trial court adhered to the Indiana Child Support Guidelines. We affirm.

Facts and Procedural History

Mark and Kathleen married on November 29, 1980. They had two children during their marriage, one of whom is A.L., born February 7, 1986.¹ In April 2002, at the age of sixteen, A.L. experienced a psychotic episode while at school and was hospitalized for psychiatric treatment. At that time, he suffered delusional thinking and was diagnosed with schizophrenia. Since then, A.L. has taken several antipsychotic medications. He has also been hospitalized two other times for psychiatric treatment, with the last hospitalization occurring in October 2004. A.L.'s present diagnosis is schizoaffective disorder.

After A.L. graduated from high school in May 2004, he attended college as a part-time student, living with his parents. In August 2005, Mark and Kathleen separated. Initially, Kathleen and A.L. remained in the marital home and Mark lived elsewhere, but after two months Kathleen and A.L. moved together to another home. A.L. had difficulty handling the demands of college coursework, and, after four semesters during which he earned a total of approximately twelve credit hours, A.L. dropped out of school. He continued living with Kathleen and at some point obtained employment. Kathleen helped A.L., who has an unusual sleep pattern, wake in time for work and remember to take his medications. In January 2007, one month before A.L.'s twenty-first birthday, Kathleen and A.L. agreed that he should move into his own apartment. He did so, and Kathleen continues providing him with financial assistance. Specifically, she provides him an automobile and a credit card to pay for gasoline and some food, and she pays for his health insurance, car insurance, clothing, shoes, and car maintenance. Tr. p. 58-59. In addition, Kathleen pays A.L.'s monthly rent, although Mark contributed half of A.L.'s rent in January and February 2007.² While the record is silent as to the number and types of jobs that A.L. has held, at the time of the hearing in this matter A.L. was employed as a part-time pizza delivery person, working between twenty and thirty hours per week and earning $4000 per year plus tips.

Mark filed a petition for dissolution of the parties' marriage on May 4, 2006. Prior to the final hearing on May 2, 2007. Mark and Kathleen settled all property issues. The sole issue before the trial court at the final hearing was whether twenty-one-year-old. A.L. was emancipated, as argued by Mark. The parties stipulated to A.L.'s diagnosis of schizoaffective disorder. They disagreed, however, as to the impact of the illness upon A.L.'s ability to care for himself. Mark and. Kathleen also both prepared child support obligation worksheets prior to the hearing. Mark's child support worksheet calculated his weekly support obligation to be $114.19. Appellant's App. p. 25. Kathleen's worksheet calculated Mark's weekly support obligation to be $166.21. Respondent's Ex. A.³

The trial court issued a final decree of dissolution on May 31, 2007. The decree provides the following:

[A.L.] suffers from Schizoaffective Disorder which prevents him from being able to be emancipated at age 21. A.L. is an incapacitated adult who will need on-going support from both parents pursuant to IC 31-16-6-6(2). ... The burden of providing support should not fall exclusively on one parent or the other.... [T]he parties shall divide the following expenses for as follows: Husband shall pay the sum of $500 per. month, $250 of which shall be applied to rent and shall be paid either directly to the landlord or to Wife. The balance of each monthly payment shall be applied by Wife to [A.L.]'s expenses as they are incurred or put aside to assist as needed should [A.L.] have a financial setback due to his illness. Wife shall continue to maintain health insurance so long as [A.L.] is eligible through the present coverage through her employer. Out of pocket medical, dental, optical and prescription expenses shall be divided 50/50. All of the above shall be in lieu of actual child support payments to either party but however shall be considered as in the nature of support and shall be enforceable in the same manner and by the same means as an ordinary child support order .... Wife shall be considered to be the custodial parent should the need for a determination arise.

Appellant's App. p. 9-10. Mark filed a motion to correct errors, alleging that the trial court erred in determining A.L. to be incapacitated, in finding Kathleen to be the custodial parent, and in ordering him, but not Kathleen, to pay child support. Id. at 11. The trial court denied the motion. Mark now appeals the final decree of dissolution and the denial of his motion to correct errors.

Discussion and Decision

Mark raises three issues on appeal. First, he argues that the trial court erred in determining that A.L. is incapacitated and, therefore, not emancipated. Second, he argues that the trial court erred by prospectively awarding custody of A.L. to Kathleen. Finally, he contends that the trial court improperly failed to follow the Indiana Child Support Guidelines. We address each in turn.

I. Incapacitation

Mark's argument regarding the trial court's finding that A.L. is not emancipated is twofold. First, Mark contends that in emancipation disputes, the burden of proof rests with the party contesting emancipation to show that an adult child is incapacitated. Next, he contends that the trial court in this case erroneously determined that A.L. is incapacitated and therefore not emancipated.

A parent's obligation to pay child support typically terminates when the child reaches twenty-one years of age and is then emancipated. Cubel v. Cubel, 876 N.E.2d 1117, 1119 (Ind.2007). "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) (citation omitted). Courts cannot presume emancipation. Id. Rather, it "must be established by competent evidence by the party seeking emancipation." Id. On appeal, we review rulings regarding emancipation and child support for clear error. Cubel, 876 N.E.2d at 1119; Dennison v. Dennison, 696 N.E.2d 88, 90 (Ind.Ct.App. 1998). Only where there is a complete lack of supporting evidence or where the evidence is undisputed and leads to a contrary conclusion will we find that the trial court's judgment is clearly erroneous. Dennison, 696 N.E.2d at 90. On appeal, we neither reweigh the evidence nor judge the credibility of witnesses. Id.

Certain statutorily-prescribed exceptions prevent the termination of a parent's duty to support a child. Indiana Code § 31-16-6-6(a)(2) 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: ...

(2) The child is incapacitated. In this case the child support continues during the incapacity or until further order of the court.

Mark argued to the trial court, and again on appeal, that A.L. is not "incapacitated" under Indiana Code § 31-16-6-6(a)(2) and that, therefore, Mark's duty to support him financially ceased when A.L. turned twenty-one.

Mark's initial argument in this regard is that the trial court improperly placed the burden upon him to prove that A.L. is not incapacitated. We agree with Mark that the language of Indiana Code § 31-16-6-6(a)(2) places the burden of proving incapacitation upon the party opposing the termination of the obligation of support pursuant to that subsection. However, we acknowledge that one case from another panel of this Court has concluded otherwise. In Free v. Free, 581 N.E.2d 996 (Ind.Ct.App.1991), a father sought an adjudication of emancipation regarding his twenty-one-year-old son. The son, employed as a part-time janitor but living with his mother, had artificial feet up to his ankles, was missing all of his fingers on his left hand, and had no right hand. The father contended that once his son reached the age of twenty-one, the party opposing emancipation bore the burden of proving that at least one of the statutory exceptions to emancipation at twenty-one applied. Id. at 997. Citing the long-standing rule in this state that "emancipation of a child is never presumed, but must be established by competent evidence," id. (citing Caddo v. Caddo, 468 N.E.2d 593, 594 (Ind.Ct.App.1984)), the Free Court concluded that the burden of proving a lack of incapacitation rested with the father, id. (citing Brancheau...