Sebastian v. Sebastian

798 N.E.2d 224, 2003 Ind. App. LEXIS 2020, 2003 WL 22456979
CourtIndiana Court of Appeals
DecidedOctober 30, 2003
Docket18A02-0301-CV-31
StatusPublished
Cited by15 cases

This text of 798 N.E.2d 224 (Sebastian v. Sebastian) 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
Sebastian v. Sebastian, 798 N.E.2d 224, 2003 Ind. App. LEXIS 2020, 2003 WL 22456979 (Ind. Ct. App. 2003).

Opinions

OPINION

ROBB, Judge.

Brian Sebastian ("Father") filed a Petition to Emaneipate Child and Modify Support regarding his son Zachary. The trial court held a hearing, but heard no evidence, directing rather that the parties file affidavits with supporting documents. After both parties filed memoranda, the trial court issued an Order requiring Father to reimburse Beth Sebastian ("Mother") for college and living expenses and ordering Father to pay Mother's attorney fees. Father now appeals. We remand.

Issues

Father raises two issues for our review which we restate as:

1. Whether there was sufficient evidence for the trial court's Order; and
2. Whether the trial court's Order was outside the seope of the pleadings.

Facts and Procedural History

Father and Mother are the parents of two children, Zachary (date of birth 6/29/1978) and Kalee. Father and Mother's marriage was dissolved pursuant to a Decree of Dissolution of Marriage entered on June 9, 1994. Mother was awarded custody of the children.

Zachary graduated from high school in 1997 and attended Ivy Tech for two semesters to raise his grades to enter Ball State University. In an Order entered September 24, 1997, the trial court ordered that Mother and Father divide equally Zachary's tuition and book expenses at Ivy Tech provided that Zachary maintain a "C" average, remain a full-time student, and furnish his father with his grades upon their receipt.

[226]*226Zachary attended Ball State University in the 1998-99 school year and earned a 1.459 grade point average. Because of his poor grades, Zachary was unable to register for classes for the Fall 1999 semester. Instead, Zachary was required to write an essay regarding how he would improve his grades if he were allowed to return to school. He returned to Ball State University for the Spring 2000 semester.

Over the course of the next three years, Father filed a number of petitions to emancipate Zachary in light of Zachary's poor academic achievement, lack of effort, and use of alcohol. The trial court held hearings on September 29, 1999, May 23, 2000, and January 17, 2001, regarding Father's petitions, but never answered the question of the impact Zachary's academic performance had on Father's contribution to Zachary's educational expenses.1

On September 7, 2001, Mother filed a Motion to Set Hearing stating that there were unresolved issues which needed to be addressed by the trial court.2 On April 1, 2002, Father filed a Petition to Emancipate Child and Modify Support. The trial court set a hearing for April 25, 2002. However, the trial court heard no evidence, directing rather that the parties file affidavits with supporting documents. Following filings by both parties, the trial court issued an Order on November 15, 2002, stating that Zachary was emanecipat-ed as of November 13, 2001, based upon evidence regarding his life style, suspension of driver's license due to chemical test failure and his failure to provide Father with his expense bills and academic grades. Appellant's Appendix at 456. Additionally, the Order required Father to reimburse Mother for $27,322.98 for Zachary's college and living expenses and to pay Mother's attorney fees of $550.00. Id. at 456-58.

Zachary graduated from Ball State University at the end of the Spring 2002 semester. Id. at 447. He had a final cumulative grade point average of 2.464. Id. at 448.

This appeal ensued.3 Additional facts will be provided as necessary.

[227]*227Discussion and Decision

I. Standard of Review

Decisions regarding child support are generally left to the discretion of the trial court. Gilbert v. Gilbert, 777 N.E.2d 785, 790 (Ind.Ct.App.2002). Absent an abuse of discretion or a determination that is contrary to law, a court on appeal will not disturb a trial court's order modifying child support. Id. In reviewing orders modifying child support, we consider only the evidence and reasonable inferences favorable to the judgment. Id. When reviewing a challenge to an order apportioning college expenses, we apply a "clearly erroncous" standard. Id. We will affirm the trial court unless the decision is clearly against the logic and the effect of the facts and cireumstances which were before it. Id.

II. Sufficiency of the Evidence

Father contends that the trial court abused its discretion by relying upon Mother's unverified memorandum in draft, ing its Order. In its April 25, 2002, Order, the trial court stated that the parties did not wish to submit testimony at the hearing scheduled for that date and ordered the parties to file affidavits with supporting documents instead. Appellant's Appendix at 396. Father filed an unverified memorandum on May 6, 2002. Mother filed her unverified response on September 6, 2002. Father now challenges the procedure used by the trial court to determine the child support, arguing that the trial court should have required the parties to submit verified affidavits rather than unverified memoranda.

We find this argument baffling. Father filed his unverified memorandum first, so he had the opportunity to follow the procedure set out by the trial court by filing the proper verified affidavit. Rather, he chose to file an unverified memorandum. Following Father's lead, Mother also filed an unverified memorandum. The trial court allowed both parties to file unverified memoranda and issued its Order on November 15, 2002.

Mother cites Trout v. Trout, 638 N.E.2d 1306 (Ind.Ct.App.1994), trans. denied, for the proposition that a party cannot concede the format of a proceeding, await the result and then object on appeal. In Trout, the trial court had explained to the parties that the final hearing in the marriage dissolution was a summary proceeding and that counsel could summarize their client's testimony and their clients should then verify that the statements made in the summaries were correct. Neither party objected to this procedure used to expedite the proceeding. 'Only upon receiving the trial court's ruling did the husband file a motion to correct error challenging the proceeding. This court stated:

[Alny challenges to the procedure utilized by the trial court were waived by Husband's failure to object to the format of the proceedings. A timely objection is a prerequisite to appellate review. "An appellant cannot sit idly by without objecting, await the outcome of trial, and thereafter raise an issue for the first time on appeal." Had Husband raised an objection to the format of the hearing, and the trial court nevertheless insisted on proceeding in this abbreviated manner, Husband might be entitled to relief. However that is not the case. [228]*228Husband, through his silence, is held to have assented to proceeding in this irregular manner. Thus, he is entitled to no relief. > ‘

Id. at 1807-08 (citations omitted). Likewise, in the present case, Father waited for the trial court to issue its decision before voicing any argument that the procedure was incorrect.

The Trout court continued:

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Sebastian v. Sebastian
798 N.E.2d 224 (Indiana Court of Appeals, 2003)

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Bluebook (online)
798 N.E.2d 224, 2003 Ind. App. LEXIS 2020, 2003 WL 22456979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sebastian-v-sebastian-indctapp-2003.