dissenting.
I respectfully dissent. Indiana Code 31-1-11.5-12(d)(1) provides that child support terminates when the child is emancipated before reaching twenty-one years of age. The child is emancipated before reaching twenty-one years of age only if the court finds that the child (1) has joined the armed forces, (2) has married, or (8) is not under the care or control of (A) either parent, or (B) an individual or agency approved by the court. I.C. 31-1-11.5-12(e); Taylor v. Chaffin (1990), Ind.App., 558 N.E.2d 879, 883. Subsection (e)(8)(A) is the only emaneipating event relevant to this appeal. What constitutes emancipation is a question of law, while whether there has been an emancipation is a question of fact. Id. at 882. Emancipation cannot be presumed, but must be established by competent evidence. Moody v. Moody (1991), Ind.App., 565 N.E.2d 388, 390. The petitioner seeking emancipation has the burden of proving that the child is emancipated. Free v. Free (1991), Ind.App., 581 N.E.2d 996, 997.
The trial court found that Krista had not lived at home since turning eighteen and enrolling at college and had been paying all of her college and living expenses. The trial court further found that after paying for first year college and living expenses, Krista had remaining funds of approximately $40,000. These findings are correct but they do not satisfy any of the emancipating events set out in 1.0. 31-1-11.5-12(e).
Emancipation cannot be found merely because Krista is living on campus and paying her own college and living expenses while at school. See Taylor, 558 N.E.2d 879 (many children attending college live away from home during school and exhibit some independence, but are not necessarily emancipated); see also In re Marriage of Brown (1992), Ind.App., 597 N.E.2d 1297. "[Nlei-ther a child's employment nor independent living necessarily means the child is emanei-pated. Rather, emancipation occurs when the child places herself beyond the control, custody and care of her parents." Id. at 1300. There was no evidence presented nor did the trial court find that Krista was no longer under the care and control of Mother. Further, there was no evidence presented *886from which it could be inferred that Krista is no longer under the care and control of her Mother and supporting herself without the assistance of her Mother. 'We certainly cannot presume, nor can an inference be made, that Krista is no longer under the care and control of her mother where the only evi'dence is that Krista was living on campus while in school and paying her own living expenses. The hearing took place during Krista's first year of college. No evidence was presented as to where Krista would live during the summers and we cannot presume she would not live with Mother, as she had been doing before enrolling school. Therefore, we cannot presume that she was not under Mother's care and control and supporting herself without the assistance of her Mother. The estate had the burden of proving she was not under Mother's care and control. Free, 581 N.E.2d at 997. Because the estate did not present evidence that Krista was no longer under the care and control of Mother, the trial court erred in finding that Krista was emancipated in September of 1998. Thus, the estate's obligation to pay support did not cease as of September, 1998.
Further, the trial court erred in failing to find the estate in contempt for failure to pay support after the social security payments ceased. The estate has not paid its obligated support payments since September of 1998. Although the trial court concluded that this failure to pay was not intentional, no evidence supports this conclusion.
We will reverse the trial court's refusal to find contempt only upon a showing that the trial court abused its discretion. Kirchoff v. Kirchoff (1993), Ind.App., 619 N.E.2d 592, 596. The trial court abuses its discretion if no evidence supports its determination. Id. The person seeking a finding of contempt has the burden of showing that there is a support obligation established and that the obligation has not been met. Once this is done, the burden of proof then shifts to the person or entity charged with contempt who must prove that the failure to meet the support obligation was not wiliful or otherwise excused. Id. at 597; see also Patrick v. Patrick (1988), Ind.App., 517 N.E.2d 1234, 1237; Holman v. Holman (1985), Ind.App., 472 N.E.2d 1279, 1284.
Here Mother established a support order and the fact that the support was not paid. Thus, the burden shifted to the estate to show the nonpayment was not willful. The estate presented absolutely no evidence excusing its nonpayment of support for the child after the social security benefits terminated. The only evidence in the record is that the estate did not pay support and it had funds available to pay support. Under these cireumstances, there is no evidence to support the trial court's finding that the refusal to pay was not intentional. The trial court abused its discretion in refusing to find the estate in contempt.