MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Aug 02 2017, 8:04 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Darlene R. Seymour Cynthia A. Marcus
Ciyou & Dixon, PC Marcus Law Firm, LLC
Indianapolis, Indiana Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Marriage of: August 2, 2017
Brett Myers, Court of Appeals Case No.
29A02-1701-DR-77
Appellant-Petitioner,
Appeal from the Hamilton
v. Superior Court
The Honorable Daniel Pfleging,
Lisa Myers (Phifer), Judge
The Honorable William
Appellee-Respondent.
Greenaway, Magistrate
Trial Court Cause No.
29D02-0302-DR-82
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017 Page 1 of 13
STATEMENT OF THE CASE
[1] Appellant-Petitioner, Brett Myers (Father), appeals the trial court’s Order for
payment of post-secondary educational expenses and the award of attorney’s
fees to Appellee-Respondent, Lisa Myers (Mother).
[2] We reverse and remand.
ISSUES
[3] Father raises two issues for our review, which we restate as:
(1) Whether the trial court properly calculated Father’s share of the child’s
incurred costs to attend college; and
(2) Whether the trial court abused its discretion by ordering Father to pay
Mother’s attorney’s fees in the amount of $3,885.
FACTS AND PROCEDURAL HISTORY
[4] Father and Mother were married on October 21, 1989. During the marriage,
two children were born: Evan Myers (Evan), 1 born on May 19, 1992, and
Ashley Myers (Ashley), born on July 17, 1995. Father and Mother separated
on February 5, 2003. On May 23, 2003, the trial court entered its decree of
dissolution of marriage between Father and Mother. Mother was awarded
primary physical custody of the children, with Father receiving parenting time
1
Evan has been emancipated and is not attending college. This appeal only relates to the college expenses
incurred by Ashley.
Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017 Page 2 of 13
in accordance with the Indiana Parenting Time Guidelines and paying child
support. Father was ordered to maintain the children’s health and dental
insurance, with Mother paying the first $1,000 of uninsured health care costs
incurred for the children’s benefit per calendar year. Any amounts in excess
thereof would be equally shared between Father and Mother. On November
22, 2010, after a hearing on Father’s verified petition for modification of child
custody, parenting time, child support, and other related issues, the trial court
entered an order, determining, in pertinent part, that
In regards to college expenses for the minor children, that each
child shall be responsible for accumulating whatever assistance
they may be able to receive, and any balance of college expenses
for either of the children shall be split evenly and equal between
the parties.
(Appellant’s App. Vol. II, p. 29).
[5] On July 25, 2014, the trial court “deemed” Ashley “emancipated for purposes
of child support only as of July 17, 2014.” (Appellant’s App. Vol. II, p. 30).
The order specified that child support would be terminated but “all other orders
in regard to this case and the child of the parties [shall] remain in full force and
effect[.]” (Appellant’s App. Vol. II, p. 30). In August of 2014, Ashley enrolled
at Indiana University Bloomington (IUB). She lived in the dormitories during
the school year and with Mother in the summer of 2015. Ashley returned to
IUB for her sophomore and junior years in August 2015 and 2016, while living
in an apartment near campus.
Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017 Page 3 of 13
[6] On February 29, 2016, Father filed his verified petition for rule to show cause,
related to uninsured medical expenses incurred on behalf of Ashley, as well as
Mother’s refusal to allow Father to claim Ashley for tax purposes. On July 18,
2016, Mother filed a verified motion for contempt, relating to Father’s share of
Ashley’s college expenses, and on November 4, 2016, filed a motion for
reimbursement of college expenses.
[7] After a hearing, the trial court issued its Order, denying Father’s petition and
concluding, with respect to the post-secondary educational expenses:
14. Father testified that he had received no documentation from
either Mother or Ashley as to Ashley’s post-secondary
educational expenses. Father appeared to be indulging in the
bliss of ignorance and had made no realistic effort to determine
any of this information. Father testified that he had “briefly”
looked at the college expense bills provided during discovery, but
did not pay then because “they were discovery.”
15 The [c]ourt will find that Ashley’s uninsured medical expenses
should be considered as part of her post-secondary educational
expenses and be divided equally between the parties.
16. The Agreement specifically states how post-secondary
educational expenses are to be paid.
17. Father testified that he had paid $2,000.00 for a summer
class at IU. Given Father’s uncertainty as to this actual amount,
the [c]ourt is unable to find what he actually paid.
Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017 Page 4 of 13
18. Father shall reimburse Mother $18,067.61 for his portion of
Ashley’s educational expenses. This payment shall be made
within 180 days or reduced to judgment.
19. Father shall reimburse Mother $3,885.00 for the attorney fees
that she has incurred in defending what appears to be a generally
baseless action and in securing reimbursement of Ashley’s post-
secondary expenses.
(Appellant’s App. Vol. II, p. 13) (internal footnote omitted).
[8] Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Post-Secondary Educational Expenses
[9] Father contests the trial court’s treatment of post-secondary educational
expenses. While Father does not challenge Ashley’s aptitude for post-
secondary education or the apportionment of the costs thereof, Father takes
umbrage with the calculation of and the inclusion of certain expenses. When
we review a challenge to an order apportioning college expenses, we apply a
clearly erroneous standard. Carson v. Carson, 875 N.E.2d 484, 485-86 (Ind. Ct.
App. 2007). However, where, as here, the decision to order the payment of
extraordinary educational expenses is challenged, our review should be based
on an abuse of discretion standard. Snow v. Rincker, 823 N.E.2d 1234, 1237
(Ind. Ct. App. 2005), trans. denied. As a result, “[r]eversal is appropriate only if
we find the trial court’s decision is against the logic and effect of the facts and
Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017 Page 5 of 13
circumstances before the court or the reasonable inferences drawn therefrom.”
Id.
[10] Under Indiana law, there is no absolute duty on the part of parents to provide a
college education for their children. Hinesley-Petry v. Petry, 894 N.E.2d 277, 280
(Ind. Ct. App. 2008), trans. denied. However, the statutory authorization for the
divorce court to order either or both parents to pay sums toward their child’s
college education constitutes a reasonable manner in which to enforce the
expectation that most families would encourage their qualified children to
pursue a college education consistent with individual family values. Id. at 280-
81. In determining whether to order either or both parents to pay sums toward
their child’s college education, the court must consider whether and to what
extent the parents, if still married, would have contributed to their child’s
college expenses. Id. at 281.
[11] The purpose of an educational support order is the welfare of the child and not
the punishment of the custodial parent. Id. It must be fair, not confiscatory in
amount and intended to provide a reasonable allowance for support,
considering the property, income, and earning capacity of the non-custodial
parent, and the station in life of the family. Id. It is within the discretion of the
trial court to determine under all the circumstances what is just and equitable to
the child and the noncustodial parent. Id.
[12] We first note that a child support order and an educational expense order are
separate and distinct. Knisely v. Forte, 875 N.E.2d 335, 340 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017 Page 6 of 13
2007), reh’g denied. Indiana Code section 31-16-6-2 governs educational
support, even if the child is emancipated, and provides that an educational
support order may include amounts for the child’s education in institutions of
higher education. The statute requires the trial court to consider the child’s
aptitude and ability; the child’s reasonable ability to contribute to educational
expenses; and the ability of the parents to pay the expenses. I.C. § 31-16-6-
2(a)(1). It is discretionary with the court to award post-secondary educational
expenses and in what amount. In making such a decision, the court should
consider post-secondary education to be a group effort, and weigh the ability of
each parent to contribute to the payment of the expense, as well as the ability of
the student to pay a portion of the expense. Ind. Child Support Guideline 8(b).
[13] Here, the parties’ obligation to pay post-secondary educational expenses was
instituted by the trial court in its order issued on November 22, 2010, as
follows:
In regards to college expenses for the minor children, that each
child shall be responsible for accumulating whatever assistance
they may be able to receive, and any balance of college expenses
for either of the children shall be split evenly and equal between
the parties.
(Appellant’s App. Vol. II, p. 29). In other words, after taking into consideration
Ashley’s scholarships, grants, student loans, summer and school year
employment and other cost-reducing programs available to her, the remaining
costs are to be shared equally between Father and Mother. See Gilbert v. Gilbert,
777 N.E.2d 785, 794 (Ind. Ct. App. 2002). Although the order did not include
Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017 Page 7 of 13
an obligation for Ashley to maintain a certain minimum level of academic
performance, there is no requirement for a trial court to incorporate one in each
case. See In re Marriage of Blanford, 937 N.E.2d 356, 365 (Ind. Ct. App. 2010)
(“[W]hether a minimum grade point average is appropriate, and, if so, the
precise level . . . should be determined on a case-by-case basis.”).
[14] While the trial court crafted a provision for the payment of post-secondary
educational costs by the child and the parents, the court omitted to specify what
it considered appropriate educational expenses. In such case, we turn to the
Indiana Child Support Guidelines (Guidelines) for guidance. Guideline 8(b)
states that “[a] determination of what constitutes educational expenses will be
necessary and will generally include tuition, books, lab fees, course related
supplies, and student activity fees. Room and Board may be included when the
child does not reside with either parent.” “A post-secondary educational order
may include medical, dental, and optical insurance costs, as well as other health
care costs, where the court finds such costs appropriate.” Cubel v. Cubel, 876
N.E.2d 1117, 1120-21 (Ind. 2007). Other appropriate extraordinary educational
expenses that have been taken into account by courts in the past are
transportation, car insurance, clothing, entertainment and incidental expenses.
Snow, 823 N.E.2d at 1240.
[15] In fashioning its Order and calculating Father’s share of post-secondary
educational expenses, the trial court relied solely on Mother’s Exhibit G, a print
out of a generic bank statement representing charges incurred by her, without
any corresponding receipts or invoices that would connect the amount with the
Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017 Page 8 of 13
specific educational charges paid. For example, several references are made to
different amounts paid to Amazon Marketplace, with Mother’s annotation
denoting ‘books.’ However, without the underlying invoice or order receipt
reflecting the book purchases, an Amazon Marketplace payment can cover a
multitude of varying purchases, educational or non-educational related.
Likewise, several charges reflect payments for auto insurance, license plates, car
repair, and tires, without the trial court first establishing that it was “necessary”
for Ashley to have a vehicle at college. Borth v. Borth, 806 N.E.2d 866, 871-72
(Ind. Ct. App. 2004) (We concluded that the trial court did not abuse its
discretion by including the cost of a vehicle in its calculation of college expenses
as it was determined necessary to have a vehicle at school because the child
lived off campus). Also, Mother requested reimbursement for Ashley’s
bodybuilding expenses. She clarified this expense during the hearing, noting
that Ashley is “a competitive weight lifter[,]” which is something she “chooses
to do outside of college,” not as a student and without competing on a college
team. (Transcript p. 58). Mother failed to connect this expense with Ashley’s
college education.
[16] Turning to Mother’s request for reimbursement of Ashley’s residential costs, we
note that Ashley lived in the dormitories during her freshman year in college.
While it is undeniable that dormitories’ costs are educational expenses, Mother
did not submit any evidence as to the amount she paid. Similarly, although
Mother is requesting reimbursement of the rental payments she made during
Ashley’s sophomore year, Mother’s only evidence consisted of a spreadsheet
Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017 Page 9 of 13
composed of amounts purportedly paid as rental payments on Ashley’s behalf.
The evidence failed to contain any lease agreement, the rental amount, or term
of the lease.
[17] In addition to these evidentiary omissions, we are mostly concerned by the
complete lack of evidence of Ashley’s tuition costs at IUB and any indication
that Ashley’s scholarships, grants, student loans, summer and school year
employment were taken into account. Mother testified that Ashley “received
money for grants for doing well on her SATs. She got grant money for that.
She got grant money for a work-study program. . . .[S]he got a lot of grant
money.” (Tr. p. 61). Mother admitted that she did not present a copy of
Ashley’s financial assistance. Additionally, Mother stated that even though
Ashley contributes by working, Mother does not know how much Ashley
makes, nor has she given Father any confirmation “as to what Ashley’s
contributions to her expenses were[.]” (Tr. p. 66). Although Mother made
vague statements that she had provided some information to Father, she also
admitted not to have that same information available during the hearing and
she conceded that she had never asked Father to pay his share of the expenses.
[18] In sum, Mother represented that Ashley’s college expenses amounted to $
36,135.23, which—according to Mother’s testimony—included, “[e]verything
that is incurred for her while she is in college” and everything “that she has to
have[.]” (Tr. pp. 57-58). Of this total amount, the trial court ordered Father to
pay $18,067.61 towards his share of Ashley’s post-secondary educational
expenses. Because there is a lack of evidence establishing the underpinnings of
Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017 Page 10 of 13
the trial court’s numbers, we find that the trial court’s order is erroneous. We
reverse the trial court’s order with respect to its calculation of the post-
secondary educational costs and remand to the trial court with instruction to
conduct an evidentiary hearing and to enter findings regarding the amount and
allocation of Ashley’s college expenses in accordance with the guidelines of this
opinion.
II. Award of Attorney’s Fees
[19] Father contends that the trial court abused its discretion when it ordered him to
pay $3,885 in Mother’s attorney’s fees. In post-dissolution proceedings, the
trial court may order a party to pay a reasonable amount for attorney’s fees. I.C
§ 31-16-11-1; Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind. Ct. App. 2012), trans.
denied. The trial court has broad discretion in awarding attorney’s fees. Id.
Reversal is proper only where the trial court’s award is clearly against the logic
and effect of the facts and circumstances before the court. Id. In assessing
attorney’s fees, the trial court may consider such factors as the resources of the
parties, the relative earning ability of the parties, and other factors bearing on
the reasonableness of the award. Id. In addition, any misconduct on the part of
a party that directly results in the other party incurring additional fees may be
taken into consideration. Id. “Further, the trial court need not give its reasons
for its decision to award attorney’s fees.” Id. (quoting Thompson v. Thompson,
811 N.E.2d 905, 928 (Ind. Ct. App. 2004)), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017 Page 11 of 13
[20] The basis for the award of attorney’s fees is Mother’s defense of “a generally
baseless action” pursued by Father against Mother and Mother’s claim for
“reimbursement of Ashley’s post-secondary expenses.” (Appellant’s App. Vol.
II, p. 13). It appears from the Order that the trial court concluded that Father
engaged in misconduct by challenging Mother’s request for payment of post-
secondary educational expenses. However, as we pointed out, Father’s
challenge is not entirely without merit. The record reflects that Mother did not
always submit all documentation to Father, and Mother admitted that she did
not request Father to “pay his 50% portion.” (Tr. p. 64).
[21] With respect to Father’s pursuit of a “baseless action” against Mother, we note
that Father’s Verified Motion for Rule to Show Cause was based on Father’s
request for payment of uninsured medical expenses incurred on behalf of
Ashley and Mother’s refusal to allow Father to claim Ashley as a dependent for
tax purposes. In the original decree of dissolution of marriage, Mother was
ordered to pay the first $1,000 of the children’s uninsured medical health care
costs. When the trial court issued its order, emancipating Ashley, on July 25,
2014, the court specified that the emancipation was “for purposes of child
support only[.]” (Appellant’s App. Vol. II, p. 30) (emphasis added). The order
further referenced that child support would be terminated but “all other orders
in regard to this case and the child of the parties [shall] remain in full force and
effect[.]” (Appellant’s App. Vol. II, p. 30). Based on this order, Father, in good
faith, could have concluded that the provision concerning the uninsured
medical expenses was still in effect. With respect to the tax exemption, the
Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017 Page 12 of 13
dissolution decree provided that each party would take one child as an
exemption. As a result, Father listed Evan as a tax exemption and Mother
listed Ashley. However, the agreement is silent as to what happens when only
one child is eligible to be listed as a tax exemption. Therefore, as the agreement
is silent, Father could reasonably make the request to take Ashley as a tax
exemption when Evan became ineligible. Accordingly, we conclude that the
trial court abused its discretion in awarding Mother attorney’s fees and we
reverse the trial court’s order.
CONCLUSION
[22] Based on the foregoing, we conclude that the trial court abused its discretion
when calculating Father’s share of the post-secondary educational costs; and
the trial court abused its discretion in awarding Mother attorney’s fees.
[23] Reversed and remanded for further proceedings in accordance with this
opinion.
[24] Najam, J. and Bradford, J. concur
Court of Appeals of Indiana | Memorandum Decision 29A02-1701-DR-77 | August 2, 2017 Page 13 of 13