Jason Daniel Carlton Webb v. Holly White (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 24 2017, 9:30 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Zachary J. Stock Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jason Daniel Carlton Webb, February 24, 2017 Appellant-Petitioner, Court of Appeals Case No. 28A04-1607-DR-1719 v. Appeal from the Greene Circuit Court Holly White, The Honorable Dena A. Martin, Appellee-Respondent. Special Judge Trial Court Cause No. 28C01-9910-DR-311

Najam, Judge.

Statement of the Case [1] Jason Daniel Carlton Webb (“Father”) appeals the trial court’s judgment for

Holly White (“Mother”) on Father’s petition to modify post-secondary

educational expenses. Father raises a single issue for our review, which we

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restate as whether the trial court abused its discretion when it denied Father’s

petition. We affirm.

Facts and Procedural History [2] On April 11, 2016, Father petitioned the trial court to modify his post-

secondary educational expenses on behalf of his daughter, A.W. (“Child”).

Father had originally agreed to pay $505.46 per month on behalf of Child’s

post-secondary expenses. Father’s agreement to that amount, and the court’s

acceptance of his agreement in its ensuing order, was premised on the then-

accurate understanding that Child would be attending Indiana State University

(“ISU”). Child’s attendance at ISU included a scholarship that fully paid her

tuition but left her with various other expenses, which Father and Mother

agreed to split between themselves. [3] Shortly after the trial court’s original order, Child transferred to Ivy Tech

Community College (“Ivy Tech”). Accounting for scholarships, grants, and

other aid, Child’s cost of attending Ivy Tech was about $3,500 per year.

However, in her FAFSA to attend Ivy Tech, Child listed her family

contribution as zero. In the subsequent educational year at Ivy Tech, Child’s

cost of attendance was about $9,200. Again, Child listed her family

contribution in her FAFSA as zero. And while she attended Ivy Tech, Child

obtained a certificate in phlebotomy. [4] In November of 2015, Father began missing his required payments to Child’s

post-secondary expenses due to various family health-care costs, including an

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injury to Father that prevented him from working for several months.

Thereafter, Father filed his petition to modify the post-secondary educational

expenses. [5] On June 23, the court held an evidentiary hearing on Father’s petition, among

other pending motions. Mother, Father, and Father’s wife testified at that

hearing. Following the hearing, the court denied Father’s petition, stating:

“Father has failed to show any substantial change in circumstances such that

his previously agreed upon responsibility to pay post-secondary educational

expenses should be reduced or vacated.” Appellant’s App. Vol. 2 at 25. This

appeal ensued.

Discussion and Decision [6] Father appeals the trial court’s denial of his request to modify his post-

secondary educational expenses for Child. We initially note that Mother has

not filed an Appellee’s Brief.

When an appellee fails to file a brief, we apply a less stringent standard of review. We are under no obligation to undertake the burden of developing an argument for the appellee. We may, therefore, reverse the trial court if the appellant establishes prima facie error. “Prima facie” is defined as “at first sight, on first appearance, or on the face of it.”

Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind. Ct. App. 2006) (citations

omitted).

Court of Appeals of Indiana | Memorandum Decision 28A04-1607-DR-1719 | February 24, 2017 Page 3 of 6 [7] Here, the trial court did not enter findings of fact and conclusions thereon

following the evidentiary hearing and, as such, “[i]n reviewing the trial court’s

decision regarding the modification of child support, we reverse only for an

abuse of discretion.” Holtzleiter v. Holtzleiter, 944 N.E.2d 502, 505 (Ind. Ct. App.

2011). An abuse of discretion occurs when the decision is clearly against the

logic and effect of the facts and circumstances before the court, including any

reasonable inferences therefrom. Id. But “[w]hether the standard of review is

phrased as ‘abuse of discretion’ or ‘clear error,’ the importance of first-person

observation and preventing disruption to the family setting justifies deference to

the trial court.” Id. (quoting MacLafferty v. MacLafferty, 829 N.E.2d 938, 940-41

(Ind. 2005)). [8] Modification of child support, including post-secondary educational expenses,

is governed by Indiana Code Section 31-16-8-1, which states, in relevant part,

that “an order with respect to child support . . . may be modified . . . only . . .

upon a showing of changed circumstances so substantial and continuing as to

make the terms unreasonable.” The party seeking to modify a child support

order bears the burden of establishing that the requirements of Section 31-16-8-1

have been met. Saalfrank v. Saalfrank, 899 N.E.2d 671, 675 (Ind. Ct. App.

2008). [9] Father asserts that the trial court was required to modify his post-secondary

educational expenses for three reasons. First, he asserts that he had

“experienced a dramatic change in his financial condition” as a result of his

family’s health-care issues and his temporary inability to work. Appellant’s Br.

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at 8-9. But before the trial court Father testified that, at the time of the

evidentiary hearing, he was working again, that he had “the ability to continue

to make the payments,” and that he intended to pay the arrearage he had

accumulated during the time in which he was unemployed. Tr. at 40-41. As

such, we cannot say that Father’s temporary financial setback required the trial

court to find a substantial change in circumstances and modify the post-

secondary expense payments. [10] Father also argues that Child, having obtained a certificate in phlebotomy, “was

now able to obtain full-time work” to support herself, which should require a

corresponding decrease in his own obligations. Appellant’s Br. at 9. But Father

cites no evidence that demonstrates that Child was in fact so employed.

Accordingly, we cannot say that this argument demonstrates prima facie error in

the trial court’s denial of his petition. [11] Third, Father contends that the trial court’s judgment deviates from the Child

Support Guidelines without explanation. In particular, comment b to Indiana

Child Support Guideline 8 states that “the court should not award post-

secondary educational expenses” when “the expected parental contribution is

zero under [FAFSA].” But that comment applies “[w]hen determining whether

or not to award post-secondary educational expenses.” Ind. Child Support

Guideline 8 cmt. b. Here, the original determination on whether to award post-

secondary educational expenses, which Father had agreed to do, had already

been made. The only issue before the trial court in the instant case was whether

to modify that existing award. Father cites no authority that requires our trial

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courts to apply that comment when the issue before the court is the

modification of an existing order. See Ind. Appellate Rule 46(A)(8)(a).

Accordingly, Father again has not demonstrated prima facie error. [12] In sum, we affirm the trial court’s denial of Father’s petition to modify the

original award of post-secondary educational expenses. [13] Affirmed.

Bailey, J., and May, J., concur.

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