Martin v. Martin, 1-185A20
| Decision Date | 21 January 1986 |
| Docket Number | No. 1-185A20,1-185A20 |
| Citation | 487 N.E.2d 1321 |
| Parties | Gaye O. MARTIN, Rebecca L. Martin, Appellant, v. Harold L. MARTIN, Appellee. |
| Court | Indiana Appellate Court |
James R. Bunch, Wallace, Campbell, Bunch, Shambach & Rennick, Covington, for appellant.
John A. Rader, McCabe, McCabe & Rader, Williamsport, for appellee.
Rebecca L. Martin (Rebecca) appeals the denial of the petition for college education expenses filed by Gaye O. Martin, her mother, (Mother), against her father, Harold L. Martin, (Father). We reverse and remand for further proceedings.
The marriage of Mother and Father was dissolved by decree entered on May 29, 1974. That decree, which was later modified, provided for child support payments. No provision for college education expenses was included in the original decree or the order of modification. Rebecca, who was born on November 24, 1961, graduated from high school in 1980 and enrolled at Northwestern University in September of that year. From her enrollment until June of 1984 she was a full time student at that university, majoring in journalism, and earned a grade point average of 3.37 on a 4.0 scale. Father continued to pay the support order for Rebecca until November 24, 1982, her twenty-first birthday, upon which date he ceased to contribute anything either for her support or education. There was never any separate order for Rebecca's educational expenses entered against Father pursuant to Indiana Code section 31-1-11.5-12(d) prior to Rebecca's twenty-first birthday.
On January 26, 1983, Mother filed an affidavit for rule to show cause and a petition to modify seeking to have Father held in contempt for failure to continue the support payments and requesting modification of the decree to defray educational expenses for Rebecca at Northwestern. The trial court dismissed both petitions on Father's motion. We reversed by memorandum decision, Martin v. Martin (1983), Ind.App., 454 N.E.2d 1272, and remanded for further proceedings. Subsequently, Rebecca was added as a party petitioner and the court heard both petitions.
After hearing, the trial court denied both the contempt petition and the petition for educational expenses finding that Husband's duty of support terminated upon November 24, 1982, Rebecca's twenty-first birthday. The court also determined that because no order for educational expenses existed prior to Rebecca's twenty-first birthday, no such order could be entered subsequent thereto. From this judgment, Rebecca appeals.
Rebecca presents a single issue in her Appellant's brief which we have restated: 1
May a court consider a petition for education expenses for a child subsequent to that child's twenty-first birthday when no order for educational expenses was in existence before that date?
Prior to determining the issue before us, we dispose of Father's contention and argument in his appellee's brief that under Indiana case law, an order for a child's educational expenses ceases when the child attains the age of twenty-one. He clearly is wrong. Thiele v. Thiele (1985), Ind.App., 479 N.E.2d 1324. In Thiele, we traced the statutory and case law history of this issue, and stated Thiele, at 1327.
It being clear, therefore, that orders for educational expenses may extend beyond the twenty-first birthday of the child involved, we turn to the precise issue before us in this case. That question is whether or not there must be an order for educational expenses in existence prior to the child's twenty-first birthday in order for such order to continue beyond that time.
Our decision in this case is controlled by the provisions of the applicable statute. Indiana Code section 31-1-11.5-12 pertaining to orders for child support, in relevant part, provides:
"(B) Such child support order may also include, where appropriate:
(1) sums for the child's education ... 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;
* * *
* * *
(d) The duty to support a child under this chapter ceases when the child reaches his twenty-first birthday unless:
(1) the child is emancipated prior to his twenty-first birthday in which case the child support, except for educational needs ..., terminates at the time of emancipation; however, an order for educational needs may continue in effect until further order of the court; ..."
Father argues, in essence, that in order for an order for educational needs to continue in effect beyond the twenty-first birthday, such an order must have existed before. In other words, that which did not already exist cannot continue in effect. Because there was no pre-existing order specifically providing for educational needs, Father argues the trial court was without authority to modify the support order subsequent to Rebecca's twenty-first birthday to require him to pay educational expenses. The trial court agreed with this argument. We, however, reject that position.
While it is true there was no separate and distinct order for educational needs before Rebecca's twenty-first birthday,...
To continue reading
Request your trial