Family Law Case Review 4/7/11

Case: Annette (Oliver) Hirsch v. Roger Lee Oliver

Case Summary by Mike Kohlhaas, Bingham McHale LLP

HELD: Court of Appeals reversed trial court’s determination of child’s emancipation date, calculation of overpaid child support, apportionment of payment of medical expenses, determination of post-secondary education expenses, and order granting attorney fees and expenses in favor of Father. Remanded with instructions.

FACTS AND PROCEDURAL HISTORY: Mother and Father were divorced in 1994.  Three children were born during the marriage: K in 1986, E in 1988 and C in 1990.  The parties were granted joint legal custody, with Mother having primary physical custody. K was emancipated by court order in 2005, but Father was ordered to contribute towards post-secondary education expenses.  In 2006, the court entered an order requiring Father to pay approximately 2/3 of E’s post-secondary education expenses.  In January of 2008, the court entered an order expressly finding that it cost Mother $42.50 to provide health insurance to E and C. 

In March of 2009, Father petitioned to emancipate E.  The court declared E emancipated as of the date of filing, a ruling which Mother does not challenge.  E incurred over $20,000 in uninsured medical expenses in 2009, the bulk of which occurring after emancipation.

C graduated high school in spring of 2009 and worked approximately 20 hours per week, earning slightly above minimum wage.  In the fall of 2009, C began attending Ivy Tech on a full tuition scholarship.  Approximately two weeks into the semester, she withdrew from all of her class, but did not un-enroll from the university.  She signed up and attended spring classes in 2010.

In September of 2009, Father filed a petition to emancipate C.  C was living with her Mother and working a new, low-paying job.  The court held a hearing in October, at which Father testified that C told him college was not for her, though he wanted her to return and would support her if she did.  The hearing was not complete and was continued to February of 2010.  In December, C moved out of Mother’s house and began renting an apartment with her boyfriend.  At the February hearing, Mother conceded that C was emancipated as of the December date in which she moved out, but continued to seek contribution from Father for college expenses.  Father indicated he did not want to contribute anything towards C’s college.

In March of 2010, the trial court entered an order decreeing C emancipated as of the September date of the emancipation petition’s filing, and ruling that Father was not obligated to contribute to C’s college expenses.  Based upon the emancipation dates of E and C and the fact that Father continued paying child support after those dates, the court ordered Mother to repay Father $4,465.75 in overpayment of support.  The court also found that Father owed Mother nothing for medical expenses for E and C in 2009 and ordered Mother to reimburse Father for $227 in travel expenses associated with Father’s current wife having to travel from Florida for the hearing, as well as $5,000 in attorney fees.  Mother appealed.

The Court first examined the emancipation date of C.  Examining Indiana’s emancipation statute (IC 31-16-6-6), the Court found that Father bore the burden of proving the capacity of self-support under (a)(3), or there must be evidence both that the child initiated the action putting herself out of her parent’s control and the child is in fact self-supporting under (b)(3).  The Court also stated that emancipation is effective on the date it occurred rather than on the date of the filing of an emancipation petition.

The Court found error with the determination of the filing date as the date of emancipation because there was no indication that emancipation actually occurred on that date.  To be emancipated under (a)(3), C must not have attended a secondary school for the prior four months and not be currently enrolled.  The Court found that C’s failure to complete classes in the fall of 2009 did not meet the (a)(3) criteria because completion is not a requirement, only enrollment.  The Court also found error with the determination that C was capable of self-support because her extrapolated income would only result in $8,000 in earning for a year.

The Court then discussed the reasons for the “automatic” emancipation date of 21, rather than 18, opining that teens are still maturing, may need substantial, continuing parental guidance and support before navigating the adult world and that employment options are often limited.  “The public policy of this state clearly is to require continued payment of child support until the child no longer is in actual need of support.”  The Court remanded to the trial court for a recalculation of overpayment of child support using the December date C moved in with her boyfriend as the emancipation date.

The Court next addressed the trial court’s determination that Father did not have an obligation to contribute to C’s college expenses.  Examining C’s temporary gap in attending college, the Court turned towards Thiele v. Thiele for factors that aid the court in determining if it is reasonable or equitable to require parents to contribute expenses of a once discontinued but now resumed higher education.  Though finding C’s 100% tuition scholarship and her ability to work limited hours during school relevant in determining the amount of support Father should provide, the Court determined that there still remained some responsibility for Father to assist C.  The Court ordered this issue remanded for the trial court to determine the apportionment of costs between Mother, Father and C.

The Court next found that the trial court erred in determining the amount of overpayment of support.  Using the correct emancipation date, the previously determined health insurance premiums and figures taken from child support worksheets for support and uninsured medical expenses totals, the Court recalculated the amount of overpaid support and remanded to the trial court to enter an order to that effect. (Mother did not contest the over $20,000 in uninsured medical expenses for E that were incurred after her emancipation date.)

The Court also determined that Mother’s claims are not frivolous, given the rulings in Mother’s favor on several issues and reversed the award granting attorney fees in Father’s favor.  As for the expenses awarded to Father to reimburse his current wife for travel expenses, the Court found that there was no evidence that Mother did not tender the statutory witness fees to wife, and even if those fees had not been tendered, it was improper to award those expenses to Father.  The Court reversed that award.

Reversed and remanded.

Judge Baker dissented on the issue of the date of emancipation and the Father’s obligation to contribute to C’s college expenses, but concurred with the remaining issues.  Judge Baker “assume[d] that the General Assembly intended there to be an implicit requirement that parents and child(ren) act in good faith”, and believed that the evidence was sufficient to conclude that C did not attend college in the fall of 2009 in good faith.  Further, he notes that while “enroll” is not defined in the statute, but the Court has previously defined it as “mean[ing] more than being involved in the application process; rather, it means that one has been accepted to the institution and is official registered at the institution as a student.”  Butrum v. Roman.  Judge Baker takes issue with the definition as it is applied here, that accepting such a broad definition means a student could conceivably be enrolled in perpetuity without ever actually taking any classes.  Judge Baker disagrees with the majority’s conclusion on the issue of C’s ability to support herself because evidence was presented that she was able to work and the result reached by the majority necessarily requires reweighing the evidence.

Judge Baker also noted that C had a 100% tuition scholarship, worked during and after graduation in high school and Father’s income significantly decreased in 2009.  For these reasons, Judge Baker again concludes that the majority reweighed the evidence.

To view the text of this opinion in its entirety, click here: Annette (Oliver) Hirsch v. Roger Lee Oliver

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