Sebastian v. Sebastian
| Decision Date | 30 October 2003 |
| Docket Number | No. 18A02-0301-CV-31.,18A02-0301-CV-31. |
| Citation | 798 N.E.2d 224 |
| Parties | In re the Matter of Brian R. SEBASTIAN, Appellant-Petitioner, v. Beth A. SEBASTIAN, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Kelly N. Bryan, Muncie, IN, Attorneys for Appellant.
John Quirk, Muncie, IN, Attorney for Appellee.
Brian Sebastian ("Father") filed a Petition to Emancipate Child and Modify Support regarding his son Zachary. The trial court held a hearing, but heard no evidence, directing rather that the parties file affidavits with supporting documents. After both parties filed memoranda, the trial court issued an Order requiring Father to reimburse Beth Sebastian ("Mother") for college and living expenses and ordering Father to pay Mother's attorney fees. Father now appeals. We remand.
Father raises two issues for our review which we restate as:
1. Whether there was sufficient evidence for the trial court's Order; and
2. Whether the trial court's Order was outside the scope of the pleadings.
Father and Mother are the parents of two children, Zachary (date of birth 6/29/1978) and Kalee. Father and Mother's marriage was dissolved pursuant to a Decree of Dissolution of Marriage entered on June 9, 1994. Mother was awarded custody of the children.
Zachary graduated from high school in 1997 and attended Ivy Tech for two semesters to raise his grades to enter Ball State University. In an Order entered September 24, 1997, the trial court ordered that Mother and Father divide equally Zachary's tuition and book expenses at Ivy Tech provided that Zachary maintain a "C" average, remain a full-time student, and furnish his father with his grades upon their receipt. Zachary attended Ball State University in the 1998-99 school year and earned a 1.459 grade point average. Because of his poor grades, Zachary was unable to register for classes for the Fall 1999 semester. Instead, Zachary was required to write an essay regarding how he would improve his grades if he were allowed to return to school. He returned to Ball State University for the Spring 2000 semester.
Over the course of the next three years, Father filed a number of petitions to emancipate Zachary in light of Zachary's poor academic achievement, lack of effort, and use of alcohol. The trial court held hearings on September 29, 1999, May 23, 2000, and January 17, 2001, regarding Father's petitions, but never answered the question of the impact Zachary's academic performance had on Father's contribution to Zachary's educational expenses.1
On September 7, 2001, Mother filed a Motion to Set Hearing stating that there were unresolved issues which needed to be addressed by the trial court.2 On April 1, 2002, Father filed a Petition to Emancipate Child and Modify Support. The trial court set a hearing for April 25, 2002. However, the trial court heard no evidence, directing rather that the parties file affidavits with supporting documents. Following filings by both parties, the trial court issued an Order on November 15, 2002, stating that Zachary was emancipated as of November 13, 2001, based upon evidence regarding his life style, suspension of driver's license due to chemical test failure and his failure to provide Father with his expense bills and academic grades. Appellant's Appendix at 456. Additionally, the Order required Father to reimburse Mother for $27,322.98 for Zachary's college and living expenses and to pay Mother's attorney fees of $550.00. Id. at 456-58.
Zachary graduated from Ball State University at the end of the Spring 2002 semester. Id. at 447. He had a final cumulative grade point average of 2.464. Id. at 448.
This appeal ensued.3 Additional facts will be provided as necessary.
Decisions regarding child support are generally left to the discretion of the trial court. Gilbert v. Gilbert, 777 N.E.2d 785, 790 (Ind.Ct.App.2002). Absent an abuse of discretion or a determination that is contrary to law, a court on appeal will not disturb a trial court's order modifying child support. Id. In reviewing orders modifying child support, we consider only the evidence and reasonable inferences favorable to the judgment. Id. When reviewing a challenge to an order apportioning college expenses, we apply a "clearly erroneous" standard. Id. We will affirm the trial court unless the decision is clearly against the logic and the effect of the facts and circumstances which were before it. Id.
Father contends that the trial court abused its discretion by relying upon Mother's unverified memorandum in drafting its Order. In its April 25, 2002, Order, the trial court stated that the parties did not wish to submit testimony at the hearing scheduled for that date and ordered the parties to file affidavits with supporting documents instead. Appellant's Appendix at 396. Father filed an unverified memorandum on May 6, 2002. Mother filed her unverified response on September 6, 2002. Father now challenges the procedure used by the trial court to determine the child support, arguing that the trial court should have required the parties to submit verified affidavits rather than unverified memoranda.
We find this argument baffling. Father filed his unverified memorandum first, so he had the opportunity to follow the procedure set out by the trial court by filing the proper verified affidavit. Rather, he chose to file an unverified memorandum. Following Father's lead, Mother also filed an unverified memorandum. The trial court allowed both parties to file unverified memoranda and issued its Order on November 15, 2002.
Mother cites Trout v. Trout, 638 N.E.2d 1306 (Ind.Ct.App.1994), trans. denied, for the proposition that a party cannot concede the format of a proceeding, await the result and then object on appeal. In Trout, the trial court had explained to the parties that the final hearing in the marriage dissolution was a summary proceeding and that counsel could summarize their client's testimony and their clients should then verify that the statements made in the summaries were correct. Neither party objected to this procedure used to expedite the proceeding. Only upon receiving the trial court's ruling did the husband file a motion to correct error challenging the proceeding. This court stated:
Id. at 1307-08 (citations omitted). Likewise, in the present case, Father waited for the trial court to issue its decision before voicing any argument that the procedure was incorrect.
As in Trout, Father waited until after the trial court issued its November 15, 2002, Order before appealing the issue of the unverified memoranda. Mother filed her memorandum more than two months prior to the Order being issued. Father had ample time to file a Motion to Strike, but he accepted Mother's filing knowing the court would rely on the evidence presented.
Also, as in Trout, Father contends that the procedure used by the trial court did not comply with the requirements of Trial Rules 43 and 56. However, based upon the reasoning in Trout, we find that this argument does not carry the day. Therefore, we hold that both parties have waived the issue of the unverified memorandum on appeal.
Father contends that the Order resolved more issues than either party intended through the pleadings. Specifically, Father contends that he was unaware that the trial court would determine his arrearage.
A party is entitled to advance notice that an issue is going to be tried and determined by a court. Glover v. Torrence, 723 N.E.2d 924, 935 (Ind.Ct.App. 2000). On April 25, 2002, the trial court ordered both parties to file affidavits with supporting documents on the issues of emancipation and disability. Father filed his memorandum on May 6, 2002, in which he included information relating to the calculation of arrearages. Mother then filed her memorandum on September 6, 2002, in which she included an entire breakdown of arrearage amounts and the total amount that she believed Father owed in arrearage. If Father believed that Mother's memorandum incorrectly included arrearage amounts, he should have objected to the memorandum before the trial court issued its November 15, 2002, Order. As stated above, a party is not allowed to wait for the trial court to issue its decision before voicing any objections. See Trout, 638 N.E.2d at 1307-08
. Therefore, Father has waived this issue on appeal.
Child support payments may properly include expenses for the child's education under Indiana Code section 31-16-6-2:
The child support order or an educational support order may also include, where appropriate:
(1) amounts for the...
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