concurring in part and dissenting in part.
I concur with Issues III and IV. I concur in result with opinion on Issue IL. However, I respectfully dissent with opinion on Issue I.
I.
Emancipation
I agree with the majority that Ind.Code 31-1-11.5-12(d)(8) governs this issue. However, the majority has omitted the part of the statute which speaks directly to the present circumstances. The part of the statute omitted reads:
in which 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 himself or capable of only partially supporting himself, the court may order the support be modified instead of terminated.
Moreover, the majority's statement on page 5 of the slip opinion, based upon Brancheau v. Weddle (1990), Ind.App., 555 N.E.2d 1315, 1318, that the parent seeking termination of a support order based upon emancipation bears the burden of proving that the child can sustain himself completely through employment is an incomplete statement of the law for the same reason-it ignores the middle ground provided for by the statute and indicated by the undisputed facts of the case.
I acknowledge that whether a support order will terminate under the present stat*979utory scheme is a matter of trial court discretion. 1986 Op.Atty.Gen. No. 2. The statute reads "the trial court may order the support be modified instead of terminated." "May" is not mandatory and indicates that the trial court is vested with discretion. Carter by Carter v. Morrow (1990), Ind.App., 563 N.E.2d 183. An abuse of discretion occurs only if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions which may be drawn from the facts and circumstances. Clark v. Clark (1991), Ind. App., 578 N.E.2d 747.
Nevertheless, I believe the trial court's failure to modify (reduce) Father's child support obligation constitutes an abuse of discretion under the present circumstances. Brian, the "child" being supported, is a twenty (20) year old man who lives with his mother, is supported by both parents, and will not work full-time because he can collect more in unemployment benefits than he can earn. Brian is not handicapped, nor does he have the extraordinary medical expenses/health problems or other special circumstances justifying the continuation of support similar to the child in Brancheou, 555 N.E.2d 1315. At the hearing held in this matter, Brian's mother conceded that he was capable of supporting himself.
Brian was, in fact, earning $105.00 per week at the time of trial. There can be no serious contention that Brian was not partially supporting himself or not capable of partially supporting himself. Under the present cireumstances, I believe that the trial court's refusal to terminate or reduce the child support order in question is clearly against the logic and effect of the facts and cireumstances before the court and constitutes an abuse of discretion.
The trial court's findings indicate that father's child support obligation as computed under the Indiana Child Support Guidelines is $164.00 for two children or $109.00 for one child. Father's percentage share of the weekly available income is 60%. Brian is, at a minimum, capable of contributing $105.00 per week toward his support. This amount multiplied by Father's percentage share of income equals $63.00 ($105.00 x 60%). If the weekly child support appropriate for two children under the Guidelines, $164.00, is reduced by this $63.00 amount, the award is less than the child support appropriate for one child under the Guidelines, $109.00 ($164.00 - $68.00 = $101.00 < $109.00). Therefore, Father's petition should have been granted and the child support obligation should have been reduced to the one child amount, $109.00 per week.
Father filed the present petition June 11, 1992. Trial was originally scheduled for July 9, 1992. Mother obtained two (2) continuances and trial was ultimately held September, 8, 1992. On September 14, 1992, the trial court entered its findings and ordered that child support be reduced to $109.00 per week on Brian's twenty-first birthday, October 9, 1992. In order to give a remand order some teeth, I would order the reduction in child support effective as of the time the Father's present petition was filed, June 11, 1992. Father should not be prejudiced by the delay involved in bringing this simple case to trial,
II.
Abatement of Support
I concur with the reasoning of the majority on this issue. However, on remand I would instruct the trial court to reduce Father's child support obligation during the daughter's on-campus residency by at least 50%. At trial, Mother agreed that a 50% reduction would be fair and effectively requested the trial court to reduce Father's child support obligation by that amount during the daughter's on-campus residency. I believe that a reduction in Father's child support obligation of at least 50% is appropriate when the daughter goes away to college because, at that time, the son will have become emancipated and no child will remain at home subject to a support order.