Family Law Case Review: L. Svenstrup v. T. Svenstrup

Case: Lisa Svenstrup v. Thomas Svenstrup
by Mike KohlhaasBingham Greenebaum Doll

Trial court acted within its discretion by denying a petition for college expenses for the parties’ youngest child, even though college expenses had been ordered previously for the parties’ older children, where evidence established that the parents’ financial situation had declined and that the subject child was eligible for substantial scholarships, aid, and loans.

Where a petition for college expenses is filed prior to the child’s emancipation at 19, but then denied by the trial court, a parent may later seek to “modify” that denial – even after the child’s 19th birthday – where a change in circumstances then warrants a college expense order.

Mother and Father had four children during their marriage, and divorced in 2006. In their settlement agreement approved by the Court at the time of Decree, college expenses were ordered paid for the three oldest children, who were then in college. College expenses for the youngest child – then 16 years old – were not specifically addressed.

In October, 2011, Mother filed a petition for allocation of college expenses as to the youngest child, T.S., who was by then a freshman at IU. Evidence at the hearing established that T.S. had received loans, aid, and scholarships in excess of his costs for that semester. Evidence was also presented that both parents’ finances had deteriorated since the time of Decree. Based in large part upon this evidence, the trial court denied  Mother’s petition for allocation of T.S.’s college expenses. Mother appealed.

The Court of Appeals noted the “abuse of discretion” standard for review of college expense orders. The Court also reviewed Ind. Code 31-16-6-2 and the statutory guidance for issuing a college expense order, which factors include the child’s ability to acquire loans and other financial assistance, as well as the parents’ ability to pay. Thus, based upon the interplay of the evidence presented, and the college expense statute, the Court concluded that the trial court acted within its discretion in denying Mother’s petition.

Notably, the Court of Appeals also addressed the recent statutory change that provides for child support generally to terminate at age 19. Mother expressed concern that, if circumstances changed after T.S.’s 19th birthday (such as Father received settlement proceeds from a lawsuit that was pending at the time of the hearing), Mother would be without recourse to go back to the trial court again for a college expense order as to T.S.  In response, the Court of Appeals observed that, “where Mother petitioned for an educational support order PRIOR to T.S.’s emancipation at age nineteen but which petition was denied by the trial court’s order, we hold that the order is subject to modification.”

Thus, the trial court’s order denying Mother’s petition for allocation of college expenses was affirmed, subject to its holding that the order remains subject to future modification based upon an appropriate change in circumstances.

 To view the text of this opinion in its entirety, click here: Lisa Svenstrup v. Thomas Svenstrup

The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

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