Lipner v. Lipner, 370S40

• Decision Date: 12 March 1971
• Docket Number: No. 370S40,370S40
• Citation: 256 Ind. 151,267 N.E.2d 393
• Parties: Lois LIPNER, Appellant, v. Meyer L. LIPNER, Appellee.
• Court: Indiana Supreme Court

Page 393

267 N.E.2d 393

256 Ind. 151

Lois LIPNER, Appellant, v. Meyer L. LIPNER, Appellee.

No. 370S40.

Supreme Court of Indiana.

March 12, 1971.

Rehearing Denied April 28, 1971.

Eugene M. Feingold, Wilson, Benne, Feingold & Donnersberger, Hammond, for appellant.

Robert A. Lucas, James J. Nagy, Lucas, Clifford & Wildermuth, Gary, for appellee.

GIVAN, Judge.

This appeal is taken from a final judgment ordering the appellee to contribute to the cost of a college education for one of his three minor children.

The record discloses the following facts:

On July 27, 1967, the appellant, Lois Lipner, was granted a divorce from the appellee Meyer L. Lipner. At the time of the divorce the appellant received title to their real estate valued at $55,000. She also received a property settlement judgment in the amount of $30,000 payable at the rate of $416 per month. It was shown by the evidence that the appellant earned $130 per week.

The evidence further established that the appellee earns in excess of $50,000 per year. The original order for support ordered appellee to pay $500 per month to the appellant for support of their three minor children.

In September, 1968, the appellant filed a petition for modification of the support decree for the reason that the parties' oldest daughter would be attending college having made application to the University of Miami at Coral Gables, Florida, and having been accepted by the university. A modification was granted, which reads in pertinent part as follows:

'1. That the Plaintiff is entitled to an additional allowance for the maintenance, support the education of the children of the parties in the sum of $50.00 each month, for 10 months of each year, beginning September 1, 1969, to and including June of each year, so long as Andrea Lipner is a full time college student and until said child reaches the full age of 21 years, or upon completion of the requirement for a Baccalaureate Degree, or is married, whichever accrues first. * * *'

It is from this decree which the appellant now appeals.

Appellant contends that the trial court erred in failing to assess any recovery to cover the expenses of the daughter's freshman year at school. As pointed out the petition was filed in September, 1968. The decree was not granted until August, 1969, after the daughter had completed her freshman year. The statute in question reads as follows:

Burns' Ind.Stat., 1968 Repl., § 3--1219:

'The court in decreeing a divorce shall make provision for the guardianship, custody, support, and education of the minor children of such marriage; and the court may require the father to provide all or some specified part of the cost of education of such child or children beyond the twelfth year of education provided by the public schools, taking into consideration the earnings of the father, the station in life of the parents and child or children involved, the aptitude of the child or children as evidenced by school records, the separate property of the child or children, and all other relevant factors: Provided, That the jurisdiction over the child or children shall remain in the court at all times during the child's or children's minority had shall not be lost because of the death of either parent. (Acts 1873, ch. 43, § 21, p. 107; 1961, ch. 170, § 1, p. 380; 1965, ch. 57, § 1, p. 88.)'

It is clear from the above statute that it is within the sound discretion of the trial court as to whether or not a father will be required to provide all or some of the cost of a college education for a child. It is for the trial court to consider all of the relevant factors and render his decision accordingly. Dorman v. Dorman (1968), 251 Ind. 272, 15 Ind.Dec. 520, 241 N.E.2d 50. In the instant case there was ample evidence before the trial court to indicate sufficient funds available to the mother and the daughter attending college from which the trial court could reasonably find that there was no equitable reason why he should require any payment for the past year. In reviewing the decision of the trial court, this Court will not weigh the evidence. If there is any substantial evidence to support the finding of the trial court it must be affirmed. Winkler v. Winkler (Ind.1969), 17 Ind.Dec. 240, 246 N.E.2d 375. We hold that the trial court did not err in failing to assess any recovery for the daughter's freshman school year.

Appellant next contends that the trial court erred in increasing the amount of support to be paid for all three children rather than making a specific provision for an award for the cost of education of the child...