FOR PUBLICATION
ATTORNEY FOR APPELLANT:
JOHN A. KESLER II
Kesler & Kesler
Terre Haute, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JEFFREY O. BUTRUM, )
)
Appellant-Respondent, )
)
vs. ) No. 84A04-0308-JV-389
)
KATHY L. ROMAN, )
)
Appellee-Petitioner. )
APPEAL FROM THE VIGO CIRCUIT COURT
JUVENILE DIVISION
The Honorable David Bolk, Judge
The Honorable Paulette Stagg, Magistrate
Cause No. 84C01-8407-JP-250
February 24, 2004
OPINION - FOR PUBLICATION
VAIDIK, Judge
Case Summary
Jeffrey O. Butrum (Father) appeals the trial courts order denying his petition to
emancipate his daughter. Specifically, Father contends that because his daughter was eighteen
years old, living with her boyfriend, working full-time, and not yet enrolled in
college, she was emancipated pursuant to Indiana Code § 31-16-6-6. Because the
daughter was still being financially supported by her parents, working full-time to save
money for college, and living rent-free with her boyfriend, Father has failed to
prove that his daughter was self-supporting or capable of supporting herself. Accordingly,
we affirm the trial courts order that daughter was not emancipated.
Facts and Procedural History
Father and Kathy L. Roman (Mother) have a daughter, H.R. H.R. turned
eighteen years old on May 14, 2002. Around that same time, H.R.
graduated from high school and moved in with her boyfriend. From May
2002 to January 2003, H.R. and her boyfriend lived together rent-free in a
house owned by the boyfriends family. During this time period, H.R. worked
full-time at a bank, earning approximately $7000 in 2002. Since
high school, H.R. planned on going to college. Because she thought that
she would have financial trouble, H.R. took the 2002 fall semester off and
worked full-time to save money for college. While H.R. was living with
her boyfriend and working full-time, she still received financial support from her parents.
In September 2002, H.R. filled out an application to Purdue University for the
2003 spring semester. H.R. was accepted to Purdue, and in January 2003
she moved into an apartment in West Lafayette with three other girls and
began taking classes. H.R. was awarded various scholarships that covered her tuition,
fees, and books for the 2003 spring semester, and she took out a
Stafford Loan to help cover her living expenses.
While H.R. was living with her boyfriend and working full-time but after H.R.
had filled out an application to Purdue, Mother filed a Petition to Modify
Child Support and for Contribution Toward College Expenses. On November 4, 2002,
Father filed a petition to emancipate H.R. The trial court held a
hearing on both motions and issued an order concluding that H.R. was emancipated
for child support purposes. However, the trial court withheld an order on
college expenses pending further argument from the parties.
Mother timely filed a motion to correct error on grounds that the case
the trial court relied on in issuing its order emancipating H.R. had been
vacated. The trial court granted Mothers motion to correct error concluding that
H.R. was not emancipated, increased Fathers child support from $45.00 per week to
$92.00 per week,
See footnote and ordered Father to pay 51% and Mother to pay
49% of H.R.s future college expenses not met by available financial assistance.
Father filed a motion to correct error, which the trial court denied.
This appeal ensued.
Discussion and Decision
At the outset, we note that Mother has failed to file an appellees
brief. In such a case, we need not undertake the burden of
developing arguments for the appellee.
Painter v. Painter, 773 N.E.2d 281, 282
(Ind. Ct. App. 2002). Applying a less stringent standard of review, we
may reverse the trial court if the appellant establishes prima facie error.
Id. Prima facie is defined as at first sight, on first appearance,
or on the face of it. Id.
Father contends that the trial court erred in concluding that H.R. was not
emancipated.
See footnote In its orders, the trial court entered findings and conclusions sua
sponte. When a court enters such findings, the specific findings control only
as to the issues they cover, and a general judgment standard applies to
any issue upon which the court has not entered findings.
Borders v.
Noel, 800 N.E.2d 586, 588 (Ind. Ct. App. 2003). We may affirm
a general judgment on any theory supported by the evidence. Id.
The judgment will be reversed only if it is clearly erroneous. Id.
In determining whether the findings or judgment are clearly erroneous, we consider
only the evidence most favorable to the judgment. Id. In doing
so, we neither reweigh evidence nor judge witness credibility. Id.
What constitutes emancipation is a question of law, while whether an emancipation has
occurred is a question of fact. Dunson v. Dunson, 769 N.E.2d 1120,
1123 (Ind. 2002) (quotation omitted). Emancipation cannot be presumed; rather, the party
seeking emancipation must establish it by competent evidence. Id. Indiana Code
§ 31-16-6-6 governs the termination of child support and emancipation of a child.
The purpose of this statute is to require that parents provide protection
and support for the welfare of their children until the children reach the
specified age or no longer require such care and support. Id. at
1124. Specifically, Indiana Code § 31-16-6-6 provides:
(a) The duty to support a child under this chapter ceases when the
child becomes twenty-one (21) years of age unless any of the following conditions
occurs:
(1) The child is emancipated before becoming twenty-one (21) years of age.
In this case the child support, except for the educational needs outlined in
section 2(a)(1) of this chapter, terminates at the time of emancipation, although an
order for educational needs may continue in effect until further order of the
court.
(2) The child is incapacitated. In this case the child support continues
during the incapacity or until further order of the court.
(3) The child:
(A) is at least eighteen (18) years of age;
(B) has not attended a secondary or postsecondary school for the prior four
(4) months and is not enrolled in a secondary or postsecondary school;
and
(C) is or is capable of supporting himself or herself through employment.
In this case the child support terminates upon the courts 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 or is capable of only partially supporting
himself or herself, the court may order that support be modified instead of
terminated.
(b) For purposes of determining if a child is emancipated under subsection (a)(1),
if the court finds that the child:
(1) has joined the United States armed services;
(2) has married; or
(3) is not under the care or control of:
(A) either parent; or
(B) an individual or agency approved by the court;
the court shall find the child emancipated and terminate the child support.
According to this statute, there are four ways to establish emancipation, specifically subsections
(a)(3), (b)(1), (b)(2), and (b)(3). A child may not qualify for emancipation
under one of the subsections yet may meet the requirements for emancipation under
another. See Borders, 800 N.E.2d at 591. Therefore, a trial court
should consider all four subsections when making an emancipation determination.
On appeal, Father argues that H.R. is emancipated pursuant to both subsection (a)(3)
and (b)(3). We address each of these subsections in turn.
I. Subsection (a)(3): Enrolled in School and Capable of Supporting Self
Subsection (a)(3) provides that the duty to support a child ceases if three
requirements are met: (1) the child is at least eighteen years old;
(2) the child has not attended school for the prior four months
and is not enrolled in school; and (3) the child is or is
capable of supporting himself or herself. All three requirements must be met
before emancipation is permissible. In this case, the trial court concluded that
H.R. was not emancipated because although H.R. was at least eighteen years old,
she was enrolled in Purdue and was neither self-supporting nor capable of supporting
herself. Father claims that both of these findings are clearly erroneous because
when he filed his petition for emancipation in November 2002, H.R., who was
eighteen years old, had not yet been accepted to Purdue and was either
self-supporting or capable of supporting herself by virtue of the fact that she
was living with her boyfriend and working full-time. Since all parties agree
that H.R. was at least eighteen years old, we now sequentially turn to
whether H.R. was enrolled in school and whether she was self-supporting or capable
of supporting herself.
In order to be emancipated a child must have not attended a secondary
or postsecondary school for the prior four (4) months and is not enrolled
in a secondary or postsecondary school[.] Ind. Code § 31-16-6-6(a)(3)(B) (emphases added).
Father filed his petition for emancipation on November 4, 2002. Four
months prior to the date is July 4, 2002. From July 4,
2002, to November 4, 2002, H.R. had not attended a secondary or postsecondary
school. The question then becomes whether H.R. was enrolled in a postsecondary
school as of November 4, 2002. The trial court found that she
was. As explained below, we conclude that this finding is clearly erroneous.
At the hearing, H.R. testified on direct examination that she had been enrolled
since August [2002] for the January [2003] semester at Purdue. Tr. of
March Hearing p. 6. However, the record shows that H.R. signed the
application to Purdue on September 23, 2002, and her high school guidance counselor
signed the application on September 24, 2002. Respondents Exhibit 2. Furthermore,
on cross-examination, Fathers attorney asked H.R. if she was enrolled in Purdue as
of November 4, 2002, the date Father filed his petition for emancipation.
H.R. responded as follows:
As far as being enrolled and everything set out as . . .
Im not totally sure. Im not going to say yes or no.
But I already know that the application process had already been begun
and they had already told me that there was (sic) just a few
more steps that I had to do to be accepted.
Tr. of March Hearing p. 16. As clarified by H.R. on cross-examination,
as of November 4, 2002, H.R. still had to complete a few more
steps before Purdue accepted her. Nevertheless, the trial court found that it
is uncontroverted that [H.R.] was enrolled in a postsecondary school in September, 2002
prior to her fathers filing. Appellants App. p. 11 (emphasis in original).
In order to determine whether the trial courts finding is clearly erroneous,
we turn to the definition of enroll.
When the meaning of a statute is at issue, we follow several rules
of statutory construction. Ind. Office of Envtl. Adjudication v. Kunz, 714 N.E.2d
1190, 1193 (Ind. Ct. App. 1999). We do not interpret a statute
that is facially clear and unambiguous; rather, we give the statute its plain
and clear meaning. Id. Additionally, when construing a statute, the legislatures
definition of a word binds us. Id. When the legislature has
not defined a word, we give the word its common and ordinary meaning.
Id. In order to determine the plain and ordinary meaning of
words, courts may properly consult English language dictionaries. Id.
Enroll is not defined in Title 31 of the Indiana Code, which governs
family law and juvenile law. However, Title 20 of the Indiana Code,
which governs education, defines enrollas used in Indiana Code ch. 20-12-71as the process
enabling a student to become a bona fide member of the student body
of the postsecondary institution and entitling the student to officially audit or receive
academic credit for on-campus instruction in Indiana. Ind. Code § 20-12-71-6.
Although this definition of enroll is not dispositive because it does not apply
to Title 31, it nevertheless informs our decision. See Stewart v. State,
754 N.E.2d 492, 495 (Ind. 2001) (looking to other inapplicable provisions of the
Indiana Code to help define custodial parent). Additionally, the dictionary defines enroll
in pertinent part as to register . . . into an official record
on execution. Blacks Law Dictionary 551 (7th ed. 1999). After viewing
these definitions of enroll, we conclude that is enrolled as used in Indiana
Code § 31-16-6-6 means more than being involved in the application process; rather,
it means that one has been accepted to the institution and is officially
registered at the institution as a student.
Here, H.R. was still involved in the application process at the time Father
filed his petition for emancipation. Therefore, H.R. was not enrolled in Purdue.
The trial courts finding to the contrary is clearly erroneous. This
does not end our inquiry however, for all three requirements of subsection (a)(3)
must be fulfilled before emancipation is appropriate and thus we must address whether
the trial courts finding that H.R. was neither self-supporting nor capable of supporting
herself is clearly erroneous.
Before emancipation a child must be or be capable of supporting himself or
herself through employment. I.C. § 31-16-6-6(a)(3)(C). In the trial courts order
granting Mothers motion to correct error, the court found that
the issue of whether [H.R.] was or was capable of supporting herself is
not nearly as clear as either party portrays it. At best, the
evidence was equivocal as to that issue. It was fathers burden of
proof to establish that [H.R.] was or was capable of supporting herself.
The court feels he fell short of his burden of proof.
Appellants App. p. 11. In the trial courts order denying Fathers motion
to correct error, the court remain[ed] of the opinion that the child was
not self-supporting as she continued to rely upon the financial assistance of her
parents, was not required to pay rent or a mortgage thereby easing her
financial obligations, and was working in order to afford college. Appellants App.
p. 14. Father argues that this finding is clearly erroneous because H.R.
was eighteen years old, living with her boyfriend, and working full-time. Father
says that this is especially true considering that [n]owadays, in the twenty-first century,
it is extremely common for people to live together but never marry.
Appellants Br. p. 15. Although under normal circumstances an eighteen-year-old childs act
of moving out of a parental home and moving in with a boyfriend
or girlfriend while having a full-time job may satisfy subsection (a)(3)(C), under the
facts and circumstances presented here, that is not the case.
H.R. and her boyfriend moved into a rent-free house about fifteen miles south
of Lafayette. H.R., who finished near the top of her high school
class, took a semester off and worked full-time to save money to attend
Purdue. During this time, H.R. still received financial assistance from her parents
for groceries, clothing, and the like. Tr. of March Hearing p. 20.
Considering the evidence most favorable to the judgment and not reweighing the
evidence or assessing witness credibility, we cannot conclude that the trial courts finding
that H.R. was neither self-supporting nor capable of supporting herself is clearly erroneous.
Because Father has failed to prove that H.R. satisfied all three requirements
under subsection (a)(3), H.R. is not emancipated under this subsection. We now
address Fathers argument that H.R. is emancipated pursuant to subsection (b)(3).
II. Subsection (b)(3): Not Under the Care or Control of Either
Parent
Subsection (a)(1) provides that the duty to support a child ceases when the
child becomes twenty-one years old unless the child is emancipated before that point.
I.C. § 31-16-6-6(a)(1). For purposes of determining whether a child has
become emancipated under subsection (a)(1), subsection (b) provides that if the court finds
that the child (1) has joined the United States armed services; (2) has
married; or (3) is not under the care or control of either parent,
then the court shall find the child emancipated and terminate the child support.
I.C. § 31-16-6-6(b). Father argues that H.R. was not under the
care or control of either parent because she was eighteen years old, living
with her boyfriend, and working full-time.
In order to prove that a child is not under the care or
control of either parent, our supreme court has found that the child must
(1) initiate the action putting himself or herself outside the parents control and
(2) in fact be self-supporting. Dunson, 769 N.E.2d 1120. Undisputedly, H.R.
initiated the action putting herself outside her parents control when she moved in
with her boyfriend. But, in order for emancipation, H.R. also must be
self-supporting. We observe that this self-supporting requirement is similar to (a)(3)s requirement
that the child is or is capable of supporting himself or herself through
employment. I.C. § 31-16-6-6(a)(3)(C). However, there is one notable difference.
Subsection (b)(3) requires the child to be self-supporting, while subsection (a)(3) requires the
child to be self-supporting or capable of supporting himself or herself. Thus,
a party faces a higher burden under subsection (a)(3). In this case,
that difference does not matter because the trial court found that H.R. was
neither self-supporting nor capable of supporting herself under subsection (a)(3), and we concluded
that that finding is not clearly erroneous. For those same reasons, we
likewise conclude that H.R. was not in fact self-supporting under subsection (b)(3).
As a result, Father has failed to meet his burden of proving that
H.R. was emancipated under subsection (b)(3).
Judgment affirmed.
SHARPNACK, J., and MATHIAS, J., concur.
Footnote:
It appears from the CCS that the trial court later reduced
Fathers child support to $21.16 per week. Appellants App. p. 8.
Footnote:
Father also argues on appeal that H.R. repudiated the parent-child relationship
and therefore he is relieved from contributing to her college expenses under the
authority of
McKay v. McKay, 644 N.E.2d 164 (Ind. Ct. App. 1994).
However, Father did not raise this issue at the trial court level; therefore,
this argument is waived on appeal. See Mitchell v. Stevenson, 677 N.E.2d
551, 558 (Ind. Ct. App. 1997), trans. denied.