Paul Edward McMinn v. Lisa Stephanie McMinn

• Court: Indiana Court of Appeals
• Decided: August 6, 2012
• Docket: 20A03-1106-DR-245
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D),

FILED this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Aug 06 2012, 9:00 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

ELIZABETH A. BELLIN PETER D. TODD WILLIAM J. COHEN Todd Law Offices Cohen Law Offices Elkhart, Indiana Elkhart, Indiana

IN THE COURT OF APPEALS OF INDIANA

PAUL EDWARD McMINN, ) ) Appellant, ) ) vs. ) No. 20A03-1106-DR-245 ) LISA STEPHANIE McMINN, ) ) Appellee. )

APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable Stephen R. Bowers, Judge Cause No. 20D02-0105-DR-305

August 6, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge Appellant Paul Edward McMinn (“Father”) appeals from the trial court’s order which

established that his and Appellee Lisa Stephanie McMinn’s (“Mother’) minor child, H.McM.

(“Son”), should continue his secondary education at a private, parochial high school.

Specifically, Father contends that the trial court erred in ordering that Son continue his

secondary education at Saint Joseph’s High School (“St. Joseph’s”), rather than at a local

public high school. Father further contends that, even if the trial court did not err in ordering

that Son continue his education at St. Joseph’s, the trial court erred in ordering that he should

bear the cost of Son’s tuition and textbook rental. We affirm in part and remand the instant

matter to the trial court for further findings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On February 26, 2003, the parties were divorced. After the parties’ divorce, Son

resided primarily with Mother and attended private parochial school. Father filed a motion to

modify the divorce decree with respect to child support and school expenses on April 16,

2010. On June 4, 2010, Mother filed a petition to modify custody. The contested issues set

forth by the parties related to the most appropriate academic placement for Son, who had

been diagnosed with Asperger’s Disorder. Mother indicated that she believed that a private

parochial school setting would be in Son’s best interests, while Father indicated that he

believed that a public school setting would be in Son’s best interests. In support, Father

stated that he felt that a public school could offer more resources to assist Son in his

academic studies.

2 The trial court conducted a hearing on the parties’ motions relating to custody and

Son’s future academic placement on February 3, 2011. During the evidentiary hearing, the

trial court heard testimony relating to Son’s academic progress and need for individualized

education plans. The trial court also heard testimony outlining the advantages and

disadvantages of the educational opportunities offered at St. Joseph’s as compared to those

offered by a public school setting.

On March 10, 2011, the trial court entered an order granting the parties joint legal

custody of Son. The March 10, 2011 order also resolved the contested issues relating to child

support, private parochial school education costs, transportation expenses, and payment of

textbook rental fees. The March 10, 2011 order (1) set Father’s child support obligation at

$54.00 per week pursuant to the agreed child support obligation worksheet tendered by the

parties; (2) directed that Son was to continue his secondary education at St. Joseph’s; (3)

required Father to pay Son’s tuition and textbook rental fees; and (4) required Mother to pay

fees and costs associated with Son’s transportation, clothing, school supplies, and school

lunches.

Father filed a motion to correct error on March 30, 2011. The trial court conducted a

hearing on Father’s motion on April 25, 2011. The trial court denied Father’s motion to

correct error on May 10, 2011. This appeal follows.

DISCUSSION AND DECISION

Father contends that the trial court erred in ordering that Son continue his education at

St. Joseph’s rather than a local public school. In support, Father argues that he believes that

3 it would be in Son’s best interests to attend a public school because he feels that a public

school could offer more resources to assist Son in his academic studies. Father further

contends that even if the trial court did not err in ordering that Son continue his education at

St. Joseph’s, the trial court erred in ordering him to pay Son’s tuition and textbook rental

fees.

I. Whether the Trial Court Erred in Ordering that Son Continue his Education at St. Joseph’s

Father claims that the trial court erred in ordering that Son continue his education at

St. Joseph’s rather than at a local public high school. Where, as here, the trial court enters

findings of facts and conclusions thereon, we apply a two-tiered standard to review the

court’s entry. Carmichael v. Siegel, 754 N.E.2d 619, 625 (Ind. Ct. App. 2001).

First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. Oil Supply Co., Inc. v. Hires Parts Service, Inc., 726 N.E.2d 246, 248 (Ind. 2000). In deference to the trial court’s proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. Id. We do not reweigh the evidence, but consider only the evidence favorable to the trial court’s judgment. Id. Challengers must establish that the trial court’s findings are clearly erroneous. Id. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. Carnahan v. Moriah Property Owners Ass’n, Inc., 716 N.E.2d 437, 443 (Ind. 1999). However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000). Additionally, a judgment is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal standard. Shell Oil Co. v. Meyer, 705 N.E.2d 962, 972 (Ind. 1998). We evaluate questions of law de novo and owe no deference to a trial court’s determination of such questions. Anthem Ins. Companies, Inc. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1237 (Ind. 2000).

Id.

4 In support of his claim, Father highlighted his testimony at the February 3, 2011

evidentiary hearing, during which he asserted that he believed that it would be in Son’s best

interest to attend a public high school rather than continue at St. Joseph’s. Specifically,

Father stated that he believed that a public school setting would present Son with better

educational opportunities because at least one local public high school provided additional

instructional assistance to students with disabilities than is offered by St. Joseph’s. Father

also stated that he believed that it would be easier for Son to adjust to a public school setting

than to continue in a private parochial setting.

Mother, on the other hand, testified that she believed it was in Son’s best interest that

he continue his education in a smaller private school setting. The trial court found that both

parties were acting in good faith with regard to their preferred education option. Mother,

Son’s school counselor, and the court-appointed custody evaluator all testified that it was in

Son’s best interest for Son to continue his education at St. Joseph. This testimony supports

the trial court’s order. As such, we will not disrupt the trial court’s order that Son continue

his education at St. Joseph.1 See id. In highlighting his testimony regarding why he believes

a public school setting is in Son’s best interest, Father essentially asks that we reweigh the

evidence, which, again, we will not do. See Carmichael, 754 N.E.2d at 625.

II. Whether the Trial Court Erred in Ordering Father to Pay Son’s Tuition and Textbook Rental Fees

1 Further, to the extent that Father also claims that the trial court’s order is clearly erroneous because nothing in the record supports the trial court’s finding that it was likely that Son would have continued in a parochial school setting had the parties remained married, the record shows that Son had been enrolled in a parochial school throughout his education and nothing suggests that the parties would not have continued if the parties had remained married.

5 Father also argues that even if the trial court properly ordered that Son continue his

education at St. Joseph’s, the trial court erred in ordering him to pay Son’s tuition and

textbook rental fees. Specifically, Father argues that “[t]he trial court should have ordered

the parties to divide the remaining cost for [Son] to attend [St. Joseph’s], including the

tuition, transportation and book fee expenses by the same proportion of their incomes as on

the Child Support Obligation Worksheet.” Appellant’s Br. p. 10. A child support order,

including the apportionment of educational expenses, will be disturbed only when it is clearly

erroneous. Carr v. Carr, 600 N.E.2d 943, 945 (Ind. 1992). However, when the decision to

order the payment of extraordinary educational expenses is challenged, the order should be

reviewed for abuse of discretion. Id.

Indiana Code section 31-16-6-2 (2009) allows for educational support orders. It

provides that, where appropriate, an educational support order may include amounts for the

child’s education in secondary schools, taking into account the child’s aptitude and ability,

the child’s reasonable ability to contribute to the educational expenses, and the ability of each

parent to meet these expenses. Ind. Code § 31-16-6-2(a)(1). Generally, educational expenses

should be divided among the parties in an amount roughly proportional to the percentage of

the parties’ gross total income attributable to each party. See generally Warner v. Warner,

725 N.E.2d 975, 978 (Ind. Ct. App. 2000) (providing that a “rough proportionality” has been

required in the apportionment of post-secondary education expenses between the portion of

expenses attributed to the parents). While a requirement of rough proportionality is not a

requirement of precise parity, deviations from a rough proportionality require a finding that

6 such an apportionment would be unjust. See id.

In the instant matter, the trial court determined that it was in Son’s best interest for

him to continue his education at St. Joseph’s. Nothing in the record suggests that Son has the

ability to contribute to the educational expenses, leaving the parties to pay said expenses.

Father does not assert that he is unable to contribute to Son’s educational costs and

acknowledges that if Son continues to attend St. Joseph’s, he should bear some responsibility

for Son’s educational costs. Father argues, however, that these costs should be roughly

proportioned between the parties.

Specifically, Father argues that “[t]he trial court should have ordered the parties to

divide the remaining cost for [Son] to attend [St. Joseph’s], including the tuition,

transportation and book fee expenses by the same proportion of their incomes as on the Child

Support Obligation Worksheet.” Appellant’s Br. p. 10. The Child Support Obligation

Worksheet divided the parties’ total wages with 54.75% attributed to Father and 45.24%

attributed to Mother. As such, Father claims that the trial court erred in allocating what he

claims is 81.7% of Son’s education-related expenses in addition to his $54.00 weekly child

support obligation. 2

On appeal, Father relies on this court’s opinion in Carmichael for the proposition that

Son’s tuition costs should have been apportioned between the parties based on their

respective incomes. In Carmichael, this court directed the trial court to revisit the issue of

2 We are unable to determine whether Father’s assertion regarding the percentage of educational expenses is accurate because the record does not contain any information relating to the costs associated with textbook rental, obtaining the necessary clothing or school uniforms, transportation, or school lunches.

7 apportioning the cost of the private school attended by the parties’ child after it reconsidered

issues relating to the parties’ incomes and child support obligations. 754 N.E.2d at 634. The

Carmichael court noted that the trial court appeared to have “believe[d] it was roughly

apportioning the cost” of tuition, but concluded that such apportionment should be

reconsidered following a reevaluation of the parties’ respective incomes. Id.

In the instant matter, the trial court noted that pursuant to the parties’ divorce decree,

Father agreed to pay Son’s educational expenses, including textbook fees, tuition, and other

related expenses through Son’s completion of secondary school in lieu of child support.

However, in its March 10, 2011 order, the trial court found that there had been a substantial

change in the statutory factors3 and modified the parties’ divorce decree to impose a child

support obligation of $54 per week on Father in addition to ordering Father to pay Son’s

tuition and textbook rental expenses. The trial court’s March 10, 2011 order does not include

an explanation of what substantial change had occurred in the parties’ respective financial

situations that would warrant a departure from their previously agreed upon financial

arrangement. In addition, the trial court did not make any findings regarding why a roughly

proportioned division of Son’s educational expenses would be unjust.

Again, while a rough proportionality is not a requirement of precise parity, deviations

from a rough proportionality require a finding that such an apportionment would be unjust.

See Warner, 725 N.E.2d at 978. As such, in light of the trial court’s failure to make findings

regarding why a roughly proportioned division of Son’s educational expenses would be

3 See Indiana Code § 31-17-2-8 (2009).

8 unjust, we remand the instant matter to the trial court for further findings regarding why such

a finding would be unjust. See generally id. Alternatively, if appropriate, the trial court

should make findings regarding the cost of the expenses allocated to Mother so to

demonstrate that its findings do result in a roughly proportional allocation of Son’s

educational expenses.

The judgment of the trial court is affirmed in part and remanded for further findings

consistent with this opinion.

VAIDIK, J., and CRONE, J., concur.