Paul Edward McMinn v. Lisa Stephanie McMinn ( 2012 )

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MEMORANDUM DECISION - NOT FOR PUBLICATION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.
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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
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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
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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.
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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
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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.
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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).
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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.
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