ATTORNEY FOR APPELLANT: APPELLEE, PRO SE:
G. TERRENCE CORIDEN STEVEN M. LEWIS
Coriden Law Office Columbus, Indiana
IN THE COURT OF APPEALS OF INDIANA
DIANNA S. (LEWIS ) BRODT, ) ) Appellant-Petitioner, ) ) vs. ) No. 03A01-0407-CV-293 ) STEVEN M. LEWIS, ) ) Appellee-Respondent. )
(1) [t]he child is emancipated before becoming twenty-one (21) years of age.
In this case, the child support, except for the educational needs . .
. terminates at the time of emancipation, although an order for educational needs
may continue in effect until further order of the court.
(2) [t]he child is incapacitated. In this case the child support continues
during the incapacity or until further order of the court.
(3) [t]he 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.
Considering this statute, our supreme court held that [t]he statutory language is clear.
Where educational needs are expressly included in a support order enacted prior
to a childs emancipation or attaining age 21, the trial court is authorized
to continue to address such educational needs. Donegan v. Donegan, 586 N.E.2d
844, 845 (Ind. 1992) (quoting Martin v. Martin, 495 N.E.2d 523, 525 (Ind.
We recognize that the parties entered into a settlement agreement when Lindsey Jo was barely six months old, agreeing that Lewis would pay child support of $35.00 per week in addition to half of the costs for school supplies, book rental, and child care expenses. This agreement was subsequently modified in 1988 and 1999. During the latter modification, Lewis support obligation was increased to $189.00 per week, and Lindsey Jos clothing allowance was terminated. The order was silent as to any educational expenses. Then, in 2004, approximately three weeks after Lindsey Jo turned twenty-one, and one year after she had started college, Brodt filed another petition to modify, seeking an order for Lewis to contribute to Lindsey Jos post-secondary educational expenses.
Typically, educational needs receive an expansive interpretation in the case law and generally includes, among others, tuition, books, lab fees, supplies, and student activity fees. Sebastian v. Sebastian, 798 N.E.2d 224, 230 (Ind. Ct. App. 2003) (quoting Warner v. Warner, 725 N.E. 2d 975, 978 (Ind. Ct. App. 2000)). However, whereas the definition of educational needs clearly seems to be geared towards college life, our reading of the parties 1983 settlement agreement appears to focus solely upon the costs related to elementary and secondary education where the charges for school supplies and book rental are more common than in post-secondary education. As included in the Commentary to Ind. Child Support Guideline 6, Extraordinary Expenses, regular elementary and secondary school expenses are covered by the basic child support obligation. Moreover, an educational support order is premature when a child is too young to assess her aptitude and ability, such as Lindsey Jo was at the time the agreement was made. See I.C. § 31-16-6-2; Moss v. Frazier, 614 N.E.2d 969 (Ind. Ct. App. 1993). Of course, this does not preclude the parties from agreeing to payment of amounts in addition to the basic child support obligation. Nevertheless, here, based on the language in the original settlement agreement, we find the reference to school expenses to be of such a different type and magnitude than college expenses that college expenses could not have been contemplated by the parties as being part of the agreement. Therefore, we find that the 1983 agreement between the parties did not address Lindsey Jos educational needs in the sense required for subsequently ordering payment of college expenses. See I.C. § 31-16-6-2.
Even assuming, arguendo, that the 1983 agreement addresses educational needs as contemplated by the statute, the subsequent modifications of the original settlement, extinguishing the disputed language, govern the conduct of the parties. In this regard, the record shows that neither the 1988 order nor the 1999 modification referenced educational expenses. Furthermore, our supreme court has noted that I.C.§31-16-6-6(a)(1)
does not state that an order for educational needs may be first initiated. The statute only provides that such order may continue. The statute does not authorize adult children to use post-dissolution proceedings to finance the expenses of college commenced or resumed later in life. . . . The statutory language is clear. Where educational needs are expressly included in a support order enacted prior to a childs emancipation or attaining age 21, the trial court is authorized to continue to address such educational needs.
Martin v. Martin, 495 N.E.2d 523, 525 (Ind. 1986). Thus, [w]hile a
trial court may not first make an order for educational needs when the
petition seeking such relief is filed after the childs emancipation or attaining twenty-one,
it is authorized to complete consideration of petitions filed before emancipation or attaining
twenty-one. See Donegan, 586 N.E.2d at 846. (emphasis added).
From the limited evidence before us, it is apparent that Lindsey Jo did not immediately enroll at Three Rivers Community College upon graduating from secondary school. See footnote Therefore, since she commenced a college career later in life, and filed a petition to defray these expenses after turning twenty-one and because neither the 1988 order nor the 1999 modification referenced educational expenses, any order for payment of college expenses is a new order, not a continuation of an existing order. Accordingly, we hold that Brodts petition, filed after Lindsey Jo turned twenty-one was untimely and the trial court appropriately declined to address her petition to modify.
ROBB, Judge, concurs with opinion.
I write separately to emphasize that although parents are free to agree to
payment of amounts in addition to the basic child support obligation, I believe
any such agreement should be narrowly construed to avoid imposing on parents the
obligation to pay expenses of a different type and magnitude than those to
which they actually agreed. Any other construction would have a chilling effect
on parents willingness to agree to pay additional amounts for minimal elementary and
secondary education expenses if they think that by so agreeing they may end
up being on the hook for college expenses even if a petition to
modify is not otherwise timely filed.
Subject to the above observation, I concur.