Sutton v. Sutton
Decision Date | 06 August 2002 |
Docket Number | No. 37A05-0112-CV-551.,37A05-0112-CV-551. |
Citation | 773 N.E.2d 289 |
Parties | In re the Marriage of Guy SUTTON, Appellant-Respondent, v. Mary SUTTON, Appellee-Petitioner. |
Court | Indiana Appellate Court |
Mark Van Der Molen, Merrillville, IN, Attorney for Appellant.
Robert Randle, Rensselaer, IN, Attorney for Appellee.
Appellant-Respondent Guy Sutton ("Husband") appeals the trial court's support order in favor of Appellee-Petitioner Mary Sutton ("Wife"). We reverse in part, and remand with instructions in part.
Husband raises four issues on appeal, which we restate as follows:
I. Whether the trial court erroneously denied Husband's petition to emancipate his eldest daughter;
II. Whether the trial court abused its discretion when it denied Husband's motion for modification of child support and imposed an additional monthly obligation on Husband for the eldest daughters' educational expenses;
III. Whether the trial court abused its discretion by finding Husband in contempt for failure to comply with a support order; and
IV. Whether the trial court abused its discretion when it ordered Husband to pay Wife's attorney fees based upon its contempt finding.
Husband and Wife have four children, Karine Sutton ("Karine"), born December 6, 1979; Lindsay Sutton ("Lindsay"), born September 7, 1981; B.S., born October 4, 1987; and K.S., born February 12, 1998. The parties have been divorced since 1995. The dissolution decree granted Wife custody of the parties' four children, subject to Husband's right to visitation. Husband was obligated to pay child support. The last child support ordered by the trial court was on February 12, 1998, pursuant to Wife's petition to modify support. That order provided in part as follows:
(App. 31.) At the time of this support order Husband was employed as an electrician with Mars Electric.
Following the trial court's entry of the above support order, Husband left his job with Mars Electric to work as a self-employed electrician. As a self-employed electrician, Husband generated only $1,865.00 in income during the year of 1999, and $1,290.00 in 2000. During this period of time, Husband relied on a personal injury settlement of approximately $170,000.00 to support himself and pay child support.1 In 2001, Husband obtained employment with Szany Electric earning $18.00 an hour.
While living in Wife's home, the parties' eldest daughter, Karine, gave birth to a child in October 1999. Karine moved out of Wife's home in September 2000 Karine turned twenty-one years of age on December 6, 2000. Karine is employed part-time and has attended college since August of 1998, taking nine credit hours a semester. She is currently in her junior year. The majority of Karine's tuition is paid for through scholarships and Pell grants. The parties' next oldest child, Lindsay, lives with Wife while working twenty hours a week at $7.00 an hour and attending college part-time. Lindsay also receives a Pell grant that pays for tuition only. Lindsay and Wife cover the additional educational expenses.
On October 23, 2001, the trial court conducted a hearing on Husband's petition for emancipation and modification, and Wife's contempt citation that alleged Husband willfully refused to pay support. At the time of this hearing, Husband was working forty hours a week as an electrician at a rate of $18.00 an hour, and Wife was averaging forty hours a week working as a registered nurse at a rate of $19.50 an hour. The trial court's order read in part as follows:
The Court ... now finds that the Husband's earning ability is the same now as it was when the last support order was entered. Further, that he has had the benefit of a personal injury settlement of approximately One Hundred Seventy Thousand Dollars ($170,000.00) in the interim. Therefore, child support should remain unchanged, the Husband should receive no visitation credit for the reason he has not visited on any regular schedule, and the tax exemptions claimed by the parties for their minor children as dependents should remain unchanged. The Court further finds that neither the oldest child, Karine Sutton, or the parties' second child, Lindsay Sutton, should be emancipated, as both are working part-time and attending college full[-]time and receive grants and scholarships. However, neither child would be able financially to complete her undergraduate degree without parental financial support. Therefore, Husband's Petition for Emancipation and Modification of Support should be overruled and denied.
(App. 3-4.) The trial court further ordered that educational expense payments to the parties' two oldest children be paid directly to them. The trial court further found Husband in contempt for a $780.71 child support arrearage, for which the trial court ordered that $100.00 a month be added to his support obligation until paid in full. Lastly, the trial court ordered Husband to pay Wife's attorney fees in the amount of $1,465.55.
Husband appeals the trial court's order.
Husband argues that "[b]y operation of law, Husband's duty of support ceased when Karine turned twenty-one (21)." Brief of Appellant at 9. We agree.
At the end of the parties' October 23, 2001 hearing the trial court rendered its judgment from the bench. In doing so, the trial court gratuitously entered findings of fact and conclusions of law. The trial court's findings control only as to the issues they cover and a general judgment standard will control as to issues upon which the court has not found. See Mullin v. Mullin, 634 N.E.2d 1340, 1341 (Ind. Ct.App.1994)
. A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence. Id.
What constitutes emancipation is a question of law, but whether there has been an emancipation is a question of fact. Young v. Young, 654 N.E.2d 880, 883 (Ind. Ct.App.1995). Emancipation of a child cannot be presumed; it must be established by competent evidence. Id. The burden of producing such competent evidence falls on the party asserting emancipation. Id. Generally, Indiana Code section 31-16-6-6 provides that "a parent's child support obligation terminates when a child is emancipated or reaches age 21, except in certain circumstances." Lea v. Lea, 691 N.E.2d 1214, 1215 (Ind.1998). Specifically, the Indiana Code provides:
(B) has not attended a secondary or postsecondary school for the prior four (4) months and is not enrolled in a secondary or postsecondary school; and
(C) is or is [sic] capable of supporting himself or herself through employment.
(1) has joined the United States armed services;
Wife argues that "[i]t was proper for the Trial Court to award support for the oldest child ... because the Support Order is in the form of educational expenses." Brief of Appellee at 5. We disagree.
The trial court does have authority and discretion to award post-secondary educational expenses and to determine the amount of such an award. Child Supp. G. 6 Commentary. However, educational expenses are addressed separately from child support. See Ind.Code § 31-16-6-2. Furthermore, while a trial court is not precluded from...
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