In re the Marriage of Tearman

617 N.E.2d 974, 1993 Ind. App. LEXIS 887, 1993 WL 277681
CourtIndiana Court of Appeals
DecidedJuly 28, 1993
DocketNo. 32A04-9301-CV-30
StatusPublished
Cited by20 cases

This text of 617 N.E.2d 974 (In re the Marriage of Tearman) 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
In re the Marriage of Tearman, 617 N.E.2d 974, 1993 Ind. App. LEXIS 887, 1993 WL 277681 (Ind. Ct. App. 1993).

Opinions

STATON, Judge.

Steven Tearman appeals the denial of his petition for an order of emancipation, modification of child support, and termination of income withholding, and the trial court's award of attorney fees. He presents four issues for our review which we reorder and restate as follows:

I. Whether the trial court erred in failing to find the parties' son to be emancipated.
II. Whether the trial court erred in denying Steven's request to abate his child support obligation while the parties' daughter is away at college.
III. Whether the trial. court erred in denying Steven's request to terminate an income withholding order.
IV. Whether the trial court erred in awarding attorney fees.

We remand for a determination as to partial or full abatement of the basic child support order during Dana's on-campus college attendance, and affirm the trial court's order in all other respects.

The marriage of Steven and Kathleen Tearman was dissolved on February 10, 1981. Kathleen was awarded custody of the parties' two children and Steven was ordered to pay child support. On June 11, 1992, Steven petitioned for a support modification order declaring that the parties' son, Brian, was emancipated and that his support payments be abated while their daughter, Dana, was away at college.

The trial court made the following pertinent findings of fact and conclusions of law sua sponte:

* * # * * %
8. Brian is now 20 years of age, has graduated from high school, lives with his mother and sister, works part-time for S & K Enterprises earning $5.25 per hour for approximately 20 hours per week, and does not attend college or trade school.
4. Dana is a junior at Avon High School and lives with her mother and brother.
[976]*9765. Father is employed at Allison Transmission and earns $17.58 per hour. He states that his overtime has been cut and he now earns $701.00 per week gross income. His 1991 W-2 form indicates he earned $89,525.28, or $760.00 gross income per week.
6. Mother is employed by AHM Graves earning $500.00 per week gross income. She also earns some extra money by baking and decorating cakes. This amounts to less than $3.00 per week.
* * * * sk *
8. The Court finds that, with the exception of food, the household expenses incurred by the mother while Dana is attending post secondary school will remain fixed.
* * * % * *
CONCLUSIONS OF LAW
4. In the present case, the Court concludes that Brian is at least 18 years of age and has not attended a secondary or post secondary school for the prior 4 months and is not enrolled in such a school. However, the Court concludes that Brian is not capable of supporting himself through employment and that his support should not be terminated until his [sic] reaches 21 years of age.
5. ... No reduction for child support should occur when Dana is attending post secondary schooling....
6. Father should pay mother's attorney fees for defending the motion for emancipation and modification.
7. The Court concludes that the income withholding order should remain in effect and be modified to be consistent with this order.
* * * * * *

Record, p. 28-29.

When a party has requested specific findings of fact and conclusions of law under Ind.Trial Rule 52(A), the reviewing court cannot affirm the judgment on any legal basis; rather, this Court must determine whether the trial court's findings are sufficient to support the judgment. Van-derburgh County Board of Commissioners v. Rittenhouse (1991), Ind.App., 575 N.E.2d 663, 665, trans. denied. In reviewing the judgment, we must first determine whether the evidence supports the findings and second, whether the findings support the judgment. Id. The judgment will be reversed only when clearly erroneous, i.e., when the judgment is unsupported by the findings of fact and conclusions of law entered on the findings. DeHaan v. DeHaan (1991), Ind.App., 572 N.E.2d 1315, 1320, trans. denied. Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them. Id. To determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh the evidence or assess witness credibility. Id.

This same standard of review applies when the trial court gratuitously enters specific findings of fact and conclusions of law, with one notable exception. When the trial court enters such findings sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found. In re Marriage of Snemis (1991), Ind.App., 575 N.E.2d 650, 652. We may affirm a general judgment on any theory supported by the evidence adduced at trial. Id.

L.

Emancipation

First, Steven argues the trial court erred when it found that Steven's obligation to pay child support for Brian had not ceased. IND.CODE 31-1-11.5-12(d)(3) (Supp.1992) provides that

The duty to support a child under this chapter ceases when the child reaches twenty-one (21) years of age unless ... the child:
(A) is at least eighteen (18) years of age;
(B) has not attended a secondary or post-secondary school for the prior four (4) [977]*977months and is not enrolled in such a school; and
(C) is or is capable of supporting himself though employment....

The parent seeking termination of child support based on a theory of emancipation bears the burden of proving that the child can sustain himself completely through employment. Brancheau v. Weddle (1990), Ind.App., 555 N.E.2d 1315, 1318.

Steven challenges the trial court's conclusion that Brian is not capable of supporting himself. The record reveals that Brian was earning a weekly salary of $105.00 at the time of trial Brian had attempted to obtain full-time employment but had been unable to find a position in which he could earn as much as he could collect in unemployment benefits. Too, Kathleen testified that, although Brian wants to move out of her home, he could not afford to do so.

Steven maintains that Kathleen's testimony that she thought Brian was capable of supporting himself, precludes the result reached by the trial court. Kathleen's supposed "concession" that Brian was capable of supporting himself occurred during the following cross examination:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Borth v. Borth
806 N.E.2d 866 (Indiana Court of Appeals, 2004)
Ratliff v. Ratliff
804 N.E.2d 237 (Indiana Court of Appeals, 2004)
Gilbert v. Gilbert
777 N.E.2d 785 (Indiana Court of Appeals, 2002)
Ogle v. Ogle
769 N.E.2d 644 (Indiana Court of Appeals, 2002)
Marriage of Scoleri v. Scoleri
766 N.E.2d 1211 (Indiana Court of Appeals, 2002)
Bower v. Bower
697 N.E.2d 110 (Indiana Court of Appeals, 1998)
Marriage of Collier v. Collier
696 N.E.2d 47 (Indiana Court of Appeals, 1998)
Lea v. Lea
691 N.E.2d 1214 (Indiana Supreme Court, 1998)
Lea v. Lea
681 N.E.2d 1154 (Indiana Court of Appeals, 1997)
Cannon v. Cannon
677 N.E.2d 566 (Indiana Court of Appeals, 1997)
DeBoer v. DeBoer
669 N.E.2d 415 (Indiana Court of Appeals, 1996)
Nill v. Martin
666 N.E.2d 936 (Indiana Court of Appeals, 1996)
Malone v. Malone
659 N.E.2d 636 (Indiana Court of Appeals, 1995)
Matter of Adoption of LC
650 N.E.2d 726 (Indiana Court of Appeals, 1995)
Stover v. Stover
645 N.E.2d 1109 (Indiana Court of Appeals, 1995)
Sterrett v. Hartzell
640 N.E.2d 74 (Indiana Court of Appeals, 1994)
Marriage of Fiste v. Fiste
627 N.E.2d 1368 (Indiana Court of Appeals, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
617 N.E.2d 974, 1993 Ind. App. LEXIS 887, 1993 WL 277681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-tearman-indctapp-1993.