Tew v. Tew, 02A03-0911-CV-529.

• Decision Date: 30 July 2010
• Docket Number: No. 02A03-0911-CV-529.,02A03-0911-CV-529.
• Citation: 924 N.E.2d 1262
• Parties: Nevin TEW, Appellant/Respondent,v.Beverly TEW, Appellee/Petitioner.
• Court: Indiana Appellate Court

924 N.E.2d 1262

Nevin TEW, Appellant/Respondent,v.Beverly TEW, Appellee/Petitioner.

No. 02A03-0911-CV-529.

Court of Appeals of Indiana.

April 13, 2010.

Transfer Denied July 30, 2010.

COPYRIGHT MATERIAL OMITTED

Michael T. Yates, More Miller Yates & Ross, Fort Wayne, IN, Attorneys for Appellant.

Stephen P. Rothberg, Fort Wayne, IN, Attorney for Appellees.

OPINION

BRADFORD, Judge.

Appellant/Respondent Nevin Tew (“Father”) appeals the trial court's order denying his petition seeking a declaration of emancipation of his daughter or alternatively, a modification of his child support obligation. We affirm.

FACTS AND PROCEDURAL HISTORY

Father and Beverly Tew (“Mother”) were married on August 7, 1982. Mother and Father are the parents of K.T., born July 14, 1986, and M.T., born January 31, 1991.¹ Mother and Father separated on March 28, 2002. The trial court subsequently entered a divorce decree dissolving their marriage on June 17, 2003.

Pursuant to the divorce decree, Mother was awarded custody of M.T., and Father was awarded parenting time and ordered to pay child support. On May 12, 2005, the custody provision of the divorce decree was modified, and Father was awarded custody of M.T. Mother later regained custody of M.T. Father's child support obligation was modified following each change in custody. Over time, following the final change in custody, communication between M.T. and Father decreased.

On April 15, 2009, Father filed a Petition for Declaration of Emancipation of Child and For a Modification of Child Support (“Emancipation Petition”). Father alleged that he should no longer be obligated to pay child support for M.T. because M.T. should be deemed emancipated or alternatively, because M.T. had repudiated her relationship with Father. Following a hearing, the trial court denied Father's petition. Father now appeals.

DISCUSSION AND DECISION

On appeal, Father contends that the trial court erred by determining that M.T. should not be deemed emancipated pursuant to Indiana Code section 31-16-6-6 (2008). Alternatively, Father contends that the trial court erred by not modifying his child support obligation. Father also contends that the trial court erred in finding that M.T. had not repudiated her relationship with Father.

In the instant case, neither party filed a written request for special findings. Rather, the trial court entered its special findings and conclusions sua sponte. See Pham v. Pham, 650 N.E.2d 1212, 1214 (Ind.Ct.App.1995) (providing that when a trial court makes special findings on its own motion rather than a motion by one of the parties, such findings are issued sua sponte ). When a trial court enters special findings and conclusions sua sponte, the specific findings and conclusions control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found. Nelson v. Marchand, 691 N.E.2d 1264, 1267 (Ind.Ct.App.1998). On appeal, we review the trial court's specific findings and conclusions under a two-tiered standard of review. Staresnick v. Staresnick, 830 N.E.2d 127, 131 (Ind.Ct.App.2005). We first consider whether the evidence supports the findings, and next whether the findings support the judgment. Id. The trial court's findings and conclusions will be set aside only if they are clearly erroneous, that is, if the record contains no facts or inferences supporting them. Id. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. Id. We neither reweigh the evidence nor assess the credibility of witnesses, but consider only the evidence most favorable to the judgment. Id. We review conclusions of law de novo. Id. However, we may affirm a general judgment on any theory supported by the evidence adduced at trial. Nelson, 691 N.E.2d at 1267.

I. Emancipation

The Indiana Supreme Court has stated that it believes that “the legislature's intent in enacting the emancipation statute [was] to require that parents provide protection and support for the welfare of their children until the children reach the specified age or no longer require such care and support.” Dunson v. Dunson, 769 N.E.2d 1120, 1124 (Ind.2002). “What constitutes emancipation is a question of law, while whether emancipation has occurred is a question of fact.” Id. at 1123 (quotation omitted). “Emancipation cannot be presumed, but must be established by competent evidence by the party seeking emancipation.” Id. With respect to emancipation, Indiana Code section 31-16-6-6 provides as follows:

(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:

(1) The child is emancipated before becoming twenty-one (21) years of age. In this case the child support, except for the educational needs outlined in section 2(a)(1) of this chapter, terminates at the time of emancipation, although an order for educational needs may continue in effect until further order of the court.

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

(3) The child:

(A) is at least eighteen (18) years of age;

(B) has not attended a secondary school or postsecondary educational institution for the prior four (4) months and is not enrolled in a secondary school or postsecondary educational institution; and

(C) is or is capable of supporting himself or herself through employment.

In this case the child support terminates upon the court's finding that the conditions prescribed in this subdivision exist. However, if the court finds that the conditions set forth in clauses (A) through (C) are met but that the child is only partially supporting or is capable of only partially supporting himself or herself, the court may order that support be modified instead of terminated.

(b) For purposes of determining if a child is emancipated under subsection (a)(1), if the court finds that the child:

(1) has joined the United States armed services;

(2) has married; or

(3) is not under the care or control of:

(A) either parent; or

(B) an individual or agency approved by the court the court shall find the child emancipated and terminate the child support.

“[E]mancipation requires that (1) the child initiate the action putting itself outside of the parents' control and (2) the child in fact be self-supporting.” Dunson, 769 N.E.2d at 1123-24.

On appeal, Father contends that the trial court erred in determining that M.T. was not emancipated pursuant to Indiana Code section 31-16-6-6. Specifically, Father claims that the trial court erred in determining that M.T. was not emancipated under either Indiana Code subsection 31-16-6-6(a)(3) or (b)(3).

A. Subsection (a)(3)

Father claims that M.T. should be deemed emancipated pursuant to subsection (a)(3) because M.T. was not enrolled in either a secondary or post-secondary educational institution for a period of approximately eight months. With respect to subsection (a)(3), the trial court found that M.T. graduated from high school on June 4, 2009, and enrolled in classes in community college as a full-time student in August of 2009. The record reveals that M.T. completed all requirements for graduation from high school in December of 2008, and was not required to attend high school classes during the 2009 spring semester. However, M.T. did not graduate from high school until the completion of the 2009 spring semester on June 4, 2009. M.T. subsequently enrolled in classes in community college in August of 2009 as a full-time student. The record further reveals that M.T. could not enroll in classes in community college prior to graduating from high school, and that M.T. enrolled in community college at the earliest possible date following her high school graduation. Moreover, nothing in the record suggests that M.T. was not actually enrolled in high school during the 2009 spring semester. We conclude that these facts are sufficient to support the trial court's finding regarding M.T.'s educational status. We also conclude that the finding supports the trial court's determination that M.T. is not emancipated pursuant to subsection (a)(3).

B. Subsection (b)(3)

Father also claims that M.T. should be emancipated pursuant to subsection (b)(3) because M.T. was not under the care and control of either parent. With respect to subsection (b)(3), the trial court found as follows:

11. The parties' child, [M.T.], was born on January 31, 1991, and is eighteen years old. She currently resides in an apartment with her boyfriend.

12. [M.T.] graduated from [high school] on June 4, 2009. She is currently enrolled in and attending [community college] and is taking 12 credit hours this semester.

13. [M.T.] is employed at Sam's Club and earns approximately Two Hundred Twenty Five Dollars ($225.00) per week in gross weekly income. [M.T.] uses the money earned from her employment for her “maintenance and upkeep” which includes the payment of one-half of the utilities at her apartment as well as her clothing and other needs.

14. [Mother] pays [M.T.'s] share of the rent as well as insurance for her car, school supplies and medications.

15. [M.T.] is not capable of supporting herself without the assistance of [Mother] and [Father].

Appellant's App. p. 39. These findings are sufficiently supported by the record, which reveals that although M.T. is currently living in an apartment with her boyfriend, she is not outside the reach of Mother's control and is not capable of supporting herself without aid from Mother and Father. M.T. relies on Mother for assistance and financial support in nearly every aspect of her daily life, and her part-time employment does not negate her need for such assistance. Because emancipation requires both that (1) the child initiate the action putting itself outside of the parents' control and (2) the child in fact be self-supporting, we conclude that the trial court's finding...