Billings v. Odle

891 N.E.2d 106, 2008 Ind. App. LEXIS 1666, 2008 WL 2908749
CourtIndiana Court of Appeals
DecidedJuly 30, 2008
Docket18A04-0711-JV-651
StatusPublished
Cited by3 cases

This text of 891 N.E.2d 106 (Billings v. Odle) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Billings v. Odle, 891 N.E.2d 106, 2008 Ind. App. LEXIS 1666, 2008 WL 2908749 (Ind. Ct. App. 2008).

Opinion

OPINION

BRADFORD, Judge.

Appellant-Respondent Tony Billings appeals following the trial court’s order finding him in arrears of his child support obligation. On appeal, Billings claims that he was entitled to credit for child support paid while exercising physical custody over Daughter and that the termination of his obligation to pay a portion of Daughter’s post-secondary education expenses should be applied retroactively to the last date which Daughter was enrolled at a post-secondary institution. Concluding that Billings was entitled to credit for child support paid while exercising physical control over Daughter and that Billings should only be obligated to pay Daughter’s educational expenses for the period of time in which she was actually enrolled at a post-secondary institution, we reverse and remand to the trial court for further proceedings not inconsistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Billings and Kendra Odie are the parents of Daughter, who was born on October 8, 1986. Daughter resided with Odie for most of her childhood, but in August of 2004, she moved into Billings’s home in Griffith, Indiana. This move was anticipated to be permanent and was made with Odle’s consent. Daughter resided with Billings from August of 2004 to July of 2005, during which time Billings assumed custody and provided Daughter with food, clothing, shelter, and medical care. Additionally, Daughter obtained her GED while residing with Billings. Throughout the eleven-month period of time in which Daughter resided with Billings, he continued to pay child support to Odie in the amount of $85 per week. In July of 2005, Daughter moved out of Billings’s home. After Daughter moved out, she resided first with her boyfriend and then with a friend. Eventually, Daughter returned to Odle’s home.

On November 17, 2005, Odie petitioned the trial court for a modification of support and requested that Billings pay a portion of Daughter’s post-secondary education expenses. On January 5, 2006, Billings petitioned that Daughter be emancipated and for a termination of his support obligation. The trial court conducted a hearing on February 17, 2006, at which time the trial court denied Billings’s petition to emancipate and granted Odle’s petition for modification of support. The trial court’s stated reasoning was to provide Daughter with the opportunity to attend school. The trial court made it clear, however, that support would be terminated if Daughter failed to stay in school with at least a “C” average. Tr. p. 34. The trial court instructed Daughter to provide Billings with copies of her grades and evidence that she was enrolled in classes each term. Additionally, *108 the trial court instructed Odie to prepare a proposed order outlining Billings’s modified obligation. Meanwhile, Billings continued to pay child support at the rate of $85 per week.

On January 23, 2007, almost one year after the modification hearing, Odie filed the proposed order with the trial court. The trial court adopted and entered the proposed order on January 26, 2007. The new order set Billings’s child support obligation at $162 per week and his obligation for post-secondary education at $138 per week, retroactive to the February 17, 2006 hearing.

As it happened, Daughter had attended Indiana Business College (“IBC”) only from April 3, 2006 until August 18, 2006. Daughter, however, had failed to notify Billings that she was no longer enrolled at IBC.

On April 3, 2007, upon learning that Daughter was no longer enrolled at IBC, Billings again filed a petition for emancipation and termination of support. On June 21, 2007, the trial court granted Billings’s petition. On August 27, 2007, the trial court found that Daughter was emancipated as of April 3, 2007, and found that Billings was in arrears of his child support obligation in the amount of $11,750. The trial court ordered Billings to pay the full amount on or before October 31, 2007.

On September 26, 2007, Billings filed a motion to correct error, alleging that the finding that he was in arrears of his child support obligation in the amount of $11,750 was “contrary to law and the evidence before the Court.” Appellant’s App. p. 89. The trial court denied Billings’s motion on October 12, 2007. This appeal follows.

DISCUSSION AND DECISION

We initially note that Odie has filed no appellee’s brief in this case. Where the appellee fails to file a brief on appeal, we may, in our discretion, reverse the trial court’s decision if the appellant makes a prima facie showing of reversible error. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind.Ct.App.2004). In this context, prima facie error is defined as “at first sight, on first appearance, or on the face of it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct.App.2006). This rule was established for our protection so that we can be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. McGill, 801 N.E.2d at 1251. Additionally, the statement of facts contained in appellant’s brief is deemed by us to be accurate and sufficient for the disposition of this appeal. Johnson County Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991 (Ind.Ct.App.1985).

Decisions regarding child support generally rest within the sound discretion of the trial court. Smith v. Smith, 793 N.E.2d 282, 284 (Ind.Ct.App.2003). We reverse such a determination only if there has been an abuse of discretion or the trial court’s determination is contrary to law. Id. By the same token, the purpose of child support is the welfare of the child and not the punishment of the noncustodial parent. Id.

I. Credit for Support Paid While Exercising Physical Custody

Billings contends that the trial court erred in failing to grant him credit for child support paid to Odie during the extended period of time that Daughter resided with him. Generally, a noncustodial parent is not entitled to credit for payments not conforming to the support order. Sterrett v. Hartzell, 640 N.E.2d 74, 78 (Ind.Ct.App.1994). However, in some circumstances, a credit may be granted to the noncustodial parent in the event of *109 nonconforming support payments. Smith, 793 N.E.2d at 284-85. More specifically, the trial court may afford relief from an unmodified support order if the noncustodial parent has, by agreement with the custodial parent, assumed custody and has provided food, clothing, shelter, medical attention, and school expenses and has exercised parental control for an extended period of time. Id. at 285.

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Bluebook (online)
891 N.E.2d 106, 2008 Ind. App. LEXIS 1666, 2008 WL 2908749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/billings-v-odle-indctapp-2008.