Carter v. Dayhuff

829 N.E.2d 560, 2005 Ind. App. LEXIS 991, 2005 WL 1364674
CourtIndiana Court of Appeals
DecidedJune 7, 2005
Docket32A05-0410-CV-573
StatusPublished
Cited by24 cases

This text of 829 N.E.2d 560 (Carter v. Dayhuff) 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
Carter v. Dayhuff, 829 N.E.2d 560, 2005 Ind. App. LEXIS 991, 2005 WL 1364674 (Ind. Ct. App. 2005).

Opinions

OPINION

CRONE, J.

Case Summary

Laura A. (Dayhuff) Carter ("Mother") appeals an order modifying child support. We affirm in part and remand in part.

Issues

Mother raises three issues, which we restate as follows:

I. Whether the trial court erred in granting a modification of child support in favor of Steven E. Dayhuff ("Father") when Father's petition focused on college expenses;
II. Whether the trial court erred in granting a retroactive modification of child support back to August 2003, when the older child began college; and
III. Whether the trial court erred in failing to include a guideline worksheet and assessing child support without considering the costs Mother . paid for health insurance or the visitation credit.

Facts and Procedural History

Mother and Father's marriage was dissolved on January 4, 1991. During their marriage, they had two sons: Mark Day-huff, born January 11, 1985, and Michael Dayhuff, born June 9, 1986. The sons have resided with Father since 1997. In March 1997, the court ordered Mother to pay weekly support of $150, which she has continued to pay. On April 9, 2008, Father filed a "Petition for Modification of Decree of Dissolution of Marriage." Appellant's App. at 14. In his petition, he requested that a modification hearing be held, that the court order Mother to "pay a portion of the college expenses," and that the court order Mother to pay Father's attorney fees and "all other relief proper." Id. at 74-75. When Father filed the modification petition, Mark, then a senior in high school, was planning to attend Indiana University-Purdue University Indianapolis ("IUPUI") and live at home with Father. Michael was a junior in high school.

Thereafter, the parties each sought continuances, and the court on occasion reset the case due to congestion. The parties attempted negotiations, but to no avail. Finally, on July 8, 2004, the court held a hearing, with evidence presented by counsel in a summary fashion. The evidence revealed that by the time of the hearing, Mark had graduated from high school and had attended IUPUI while living with Father. Michael had also finished high school and was planning to attend college. On the hearing date, it was clarified that Mark would be transferring to Indiana University and living in Bloomington, [563]*563Indiana, and that Michael would be starting at IUPUI and living off-campus rather than with Father. Father expressed surprise at their decisions and questioned whether he should have to help pay for off-campus housing if his sons could live at home. In addition, Father's counsel clarified that he was requesting a modification of child support and an order setting college expenses. See id. at 28.

Mother requested the court to find the children responsible for some portion of their education (noting the availability of student loans and employment), agreed to pay 61% of the remaining costs (with Father paying 39%), and asked the court to establish a reasonable expense for the sons' housing. Mother took issue with Father's request to modify child support retroactively, stressed that Father had requested only a college expense contribution and attorney fees in his petition, and pointed out that she had continued to pay $150 per week in support as previously ordered. See id. at 24, 48. The parties presented evidence regarding their salaries, insurance paid by Mother, Stafford Loan amounts, Mark's arid Michael's employment, tuition, fees, and costs, ete. The court took the matter under advisement.

On July 12, 2004, the court issued its "Order on Petition to Modify," which states as follows:

The court denies [Father's] request for a modification of child support retroactive to April 9, 2008. The court finds that both sons continued to live with [Father] after Mark began his freshman year at IUPUI in August of 2008. The court finds that [Mother] should pay child support for both sons from the first Friday in August of 2003 until the first Friday in August of 2004 in the amount of $264.00 per week. For this period, the parties should divide Mark's college expenses with Mark paying one-third of his tuition, books, fees and gasoline expenses to and from school (from school loans, grants or personal funds). The remaining balance should be paid with 61% to [Mother] and 39% to [Father]. [Mother] testified that she paid $1,760.00 on Mark's tuition for the first year, and she should be credited for this amount.
Both boys will be enrolled in college beginning in August of 2004. Mark will be transferring to Indiana University at Bloomington to live on campus. Michael will attend IUPUI. He intends to live in an apartment instead of at home with [Father]. The parties agreed that both boys have the academic ability to sue-ceed in college. Both are capable of and have been working part-time.
Beginning with the second Friday in August of 2004, [Mother's] obligation to pay child support to [Father] terminates. The boys' college expenses for tuition, books, fees, room and board shall be divided as follows: each son shall pay one-third (from school loans, grants or personal funds); [Mother] shall pay 61% of the balance; and [Father] shall pay 39% of the balance. The parties shall determine and divide the amount Michael spends for apartment rental and food the same as the amount spent by Mark for room and board at IU, but not more that [sic] Michael is actually spending. .
This order is conditioned on the two boys maintaining a "C" grade point average. The court orders Mark and Michael to provide each parent with a copy of his grades within 10 days of receipt. Any prior order not mentioned herein remains unchanged. Each party shall pay his or her own attorney fees.

Id. at 20-22. Mother filed a motion to correct error, which the trial court denied.

[564]*564Discussion and Decision

I. - Modification of Child Support in Conjunction with Order of College Expenses

Mother urges that the trial court abused its discretion "in the retroactive award of child support in that the petition filed by [Father] did not request a modification of child support. The only relief requested by [Father] was assistance by [Mother] toward the expenses of college." Appellant's Br. at 9. Mother contends that she was denied advance notice that the issue of child support was going to be determined.

"A party is entitled to advance notice that an issue is going to be tried and determined by a court." Sebastian v. Sebastian, 798 N.E.2d 224, 228 (Ind.Ct.App.2008) (citing Glover v. Torrence, 7283 N.E.2d 924, 935 (Ind.Ct.App.2000)). That said, we have concluded:

both the [child support] Commentary and the Worksheet indicate that the allocation of college support expenses for a child who resides on a college campus necessarily entails a recalculation of the amount of child support due to the custodial parent. Neither party disputes that B. lives on campus at Wabash College. Consequently, the allocation of college expenses that Father requested automatically required a determination of the amount of child support that Father owed Mother. Contrary to Mother's allegation, Father's pleading raised this issue and the trial court did not err when it addressed it.

Drwecki v.

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Bluebook (online)
829 N.E.2d 560, 2005 Ind. App. LEXIS 991, 2005 WL 1364674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-dayhuff-indctapp-2005.