concurring in part and concurring in result in part.
I concur in’ result as to Issue One. I concur as to Issue Two. I concur in result as to Issue Three, Parts I and II.
ISSUE ONE
As to Issue One, Rolland concedes that his income dramatically increased during the thirteen year interim. He points out, however, that at the time of the hearing he was unemployed and had been so for approximately seven months. He argues that this fact renders the $1,000-plus monthly support order erroneous as a matter of law. In view of Rolland’s past income performance, the trial court was entitled to consider his present circumstance as a momentary aberration. In this respect I do not believe the trial court committed error.
While the record reflects that Wendy requested the trial court to utilize the as yet unadopted Guidelines and while her proposed support calculation using the Guidelines is the exact amount ordered by the court, the decree does not recite what considerations resulted in the amount. If the record were devoid of evidence other than the Guidelines themselves, I would vote to remand for a redetermination of the support order in light of the statutory factors then in effect. Stierwalt v. Dyer (1988) 1st Dist. Ind.App., 531 N.E.2d 1213. As the majority notes, however, the Guidelines are consistent with the statutory considerations. Because the evidence supports the discretion exercised by the trial court in fixing the modified support amount, reversible error has not been demonstrated.
The majority holds that “application to and acceptance by” the University of Kansas demonstrates that the child has the aptitude and ability for higher education. I have reservations about the precedential impact of this holding but join in it.
In Giselbach v. Giselbach (1985) 2nd Dist.Ind.App., 481 N.E.2d 131, the child not only had applied, been admitted and enrolled, but had completed at least one semester. We nevertheless reversed a modification order which directed the father to pay the college expenses. We noted that the trial court had not “conducted the appropriate inquiry into the child’s aptitude for the requested education or into the parents’ ability to finance such education”. 481 N.E.2d at 134. However, in Taylor v. Chaffin (1990) 2nd Dist. Ind.App., 558 *565N.E.2d 879, we upheld a college expense order despite the fact that the child’s high school record was poor and during her two years of college she had achieved only a 1.89 grade point average. The trial court in that case conditioned the order upon her ability to maintain the 2.0 GPA required for graduation.
In the case before us, the evidence is adequate to show that Rolland is financially able to undertake the expense. There is no evidence, however, with regard to the child’s academic skills, aptitude and interest, other than the mere application and acceptance.
I have very little doubt that there is some evidence available which would reflect that the child has at least minimal aptitude and would benefit from higher education. The record, however, is silent in that respect. We, at the appellate level, may not by speculation, no matter how well founded in our instincts and collective knowledge, provide facts to fill evidentiary gaps. If the mandatory considerations for ordering a noncustodial parent to pay for higher education are to be changed, that is the prerogative of the legislature. Nevertheless, in the light of Taylor v. Chaffin, supra, I join majority in drawing the requisite inference of aptitude and ability from the meager evidence at hand. The facts before us are at least free of the negative connotations concerning aptitude and ability which we discounted in Taylor.
Subject to the above comments, I concur in affirmance of the monthly support award and the order for payment of college expenses.
ISSUE TWO
I fully concur in the affirmance of the trial court’s adjudication of contempt.
ISSUE THREE
I. DUE PROCESS
I agree that I.C. 31 — 1—11.5—12(b) does not violate due process rights. As held by the majority, there is no lack of clarity or ambiguity in the statute merely because it does not precisely state in what manner or form the court will exercise its discretion or because it does not set forth the exact expenses that may inhere in a given circumstance.
However, I disagree that our sole focus may be directed toward whether the statute contains sufficient guidelines for the trial court. It is not fair to say that the statute is directed only to the trial court. It is also directed to those persons who may feel its impact, i.e., to the child whose educational future is in the balance and to the parent who may be required to bear the financial burden for that education. The statute must be sufficiently clear as to permit the petitioner to carry his or her burden of proving educational need, ability and aptitude, as well as the financial ability of respondent to meet those needs. It also must advise respondent with some degree of clarity the parameters of the matter to be determined, in order that the right to be heard is not a hollow right. Respondent must be able to fairly prepare a defense to the claim of petitioner. Podgor v. Indiana University (1978) 2nd Dist. Ind.App., 381 N.E.2d 1274. The nature of the inquiry here was clearly apparent to respondent and he was fully apprised of the issues to be considered and had ample opportunity to be heard. He has throughout the proceedings vigorously defended against the claim. The standards applicable to the proceeding as set forth in the statute conformed to the requirements of due process.
The principle thrust of Rolland’s due process argument is not that the statute is too vague to afford adequate notice and opportunity to be heard. Rather, he emphasizes the assertion that the statute unconstitutionally infringes upon his right to direct the education and upbringing of his child. Although this aspect of Rolland’s appeal is not discussed in the majority opinion, I believe it to be without merit.
As a general proposition, parents have a liberty right in the upbringing and education of their children. Wisconsin v. Yoder (1972) 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15; Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary (1925) 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. *5661070. The right, however, is not absolute. It is tied to the right of control. See Wisconsin v. Yoder, supra, 92 S.Ct. at 1541. It is inextricably intertwined with the actual or legal custody of the child and the responsibility for the “daily supervision, education, protection, or care of the child.” Quilloin v. Walcott (1978) 434 U.S. 246, 98 S.Ct. 549, 555, 54 L.Ed.2d 511. This is not to say that a parent after divorce loses all due process rights to maintain the parental relationship. See Stewart v. Stewart (1988) 4th Dist., 521 N.E.2d 956 (right of visitation).
Nevertheless, when in a dissolution matter, an order vests physical and legal custody in one parent as opposed to the other, the right to make educational decisions follows the custody. The exercise of such right, so long as in the best interests of the child, does not impinge upon the non-custodial parent’s rights. Nor is it a violation of the non-custodial parent’s liberty rights to order him or her to bear the reasonable cost, or a portion thereof, of that education. See 36 ALR 3d 1093, Noncustodial Parent’s Rights as Respects Education of Child.
II. EQUAL PROTECTION
The decision of the majority, with respect to the equal protection argument, presupposes that the parents of an intact family will always provide a college education for their child or may be compelled to do so.
Without question a clearly rational and unmistakable connection exists between affording a college education to a deserving child and requiring a non-custodial parent to assume a financial obligation for that education. This determination, however, does not address the disparate treatment which inheres in the placement of married parents in a classification separate from that of divorced parents.
Perhaps the answer lies in that, even assuming the duty of parents in an intact family to provide a college education,1 there is no vehicle or forum in which to enforce that duty. A parent who knowingly deprives a dependent child of support may be criminally prosecuted. I.C. 35-46-1-4 & 5. The civil authorities may by proper petition and court order remove a child under the age of eighteen from the home environment if that child is being deprived of necessary support. I.C. 31 — 6— 4-3 et seq. Neither of these remedies would appear appropriate for a refusal of a parent to send a child to college.
Perhaps the answer lies in the corollary proposition that a parent is immune from civil suit brought against him by his minor child. See Davidson v. Davidson (1990) 1st Dist. Ind.App., 558 N.E.2d 849; Vaughan v. Vaughan (1974) 1st Dist., 161 Ind.App. 497, 316 N.E.2d 455 (negligence action); 17 Ind.L.Rev., Domestic Relations, 173 at 189-190; but see Buffalo v. Buffalo (1982) 4th Dist., Ind.App., 441 N.E.2d 711 (immunity does not exist as to non-custodial parent).
In any event, even assuming that higher education be considered a necessity, it would appear that any disparity in treatment exists not by reason of the classification but rather because the law has not created a means for enforcement as against a custodial parent. This arguable gap in the law does not give rise to a cognizable claim of unequal protection.
Legislation is not violative of the constitution merely becuase
“it is not all-embracing and does not include all the evils within its reach.
* * * * * ¡i¡
[M]ere underinclusiveness is not fatal to the validity of a law under the equal protection clause, even if the law disadvantages an individual or identifiable members of a group.” 16A Am.Jur.2d, Constitutional Law § 759 at 855 & 857.
*567Neither does equal protection “require any particular kind of remedy or identical remedies.” State ex rel. McCormick v. Superior Court of Knox County (1951) 229 Ind. 118, 125, 95 N.E.2d 829.
If the statute under inquiry must be deemed of uniform application in order to afford constitutionality that interpretation is possible. S.M.V. v. Littlepage (1982) 1st Dist. Ind.App., 443 N.E.2d 103. We need only acknowledge that a custodial parent, under similar circumstances as to financial ability and as to the child’s aptitude, may be made to provide higher education. We need not, however, and we cannot in this case, create a cognizable theory and a judicial procedure whereby that child may obtain a higher education. That task, if necessary to the constitutional scheme, will and must await another time and another forum.
Suffice it to say that notwithstanding the arguable appearance of discrimination in the statute, I agree that it does not run afoul of the equal protection clause.
I vote to affirm the judgment.
. But see Giselbach v. Giselbach (1985), supra, 481 N.E.2d 131 which acknowledged that a court might properly include the cost of education as an element of support, but observed that "there may be-no absolute legal duty to provide a college education for a minor child.” 481 N.E.2d at 133. This quote is founded upon Haag v. Haag (1959) 240 Ind. 291, 163 N.E.2d 243 which held that the courts are "without authority to enforce moral obligations, no matter how manifestly evident they may be.” 240 Ind. at 305, 163 N.E.2d 243.