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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: J. DAVID ROELLGEN Emison Doolittle Kolb & Roellgen Vincennes, Indiana ATTORNEY FOR APPELLEE: THOMAS A. MASSEY Bowers Harrison Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF BERT MARCUS JONES, Appellant-Petitioner, vs. GINA LYNN JONES, Appellee-Respondent. ) ) ) ) ) ) ) ) ) ) )

No. 14A01-0601-CV-35

APPEAL FROM THE DAVIESS CIRCUIT COURT The Honorable Robert L. Arthur, Judge Cause No. 14C01-9904-DR-108

October 25, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Judge

Bert Jones ("Father") appeals the trial court's grant of a petition to modify support filed by Gina Jones ("Mother"). Father raises three issues, which we restate as: I. Whether the trial court's calculation of weekly gross income for child support purposes was clearly erroneous; Whether the trial court erred by ordering him to pay for college education expenses because S.J. and J.J. had repudiated the parentchild relationship; and Whether the trial court erred by modifying the marital settlement agreement to require Father to pay for private school tuition.

II.

III.

On cross appeal, Mother raises the issue of whether the trial court abused its discretion by failing to order Father to pay Mother's attorney fees. We affirm in part, reverse in part, and remand. The relevant facts follow. Father and Mother were married in 1983, and three children ("Children") were born to the marriage, J.J., born July 2, 1984, S.J., born March 20, 1987, and M.J., born December 29, 1988. Father is self employed at Jones & Sons. Father left the house in 1996 or 1997. Father called Mother and told her that he was moving out and that he was in Florida. Neither Mother nor the Children knew where Father lived for periods of time. Before the divorce, Father did not come to the house to see the Children. Father filed a petition for dissolution of marriage in April 1999. In 2002, the parties entered into a marital settlement agreement, and the trial court issued a dissolution decree, which approved of and incorporated by reference the parties' settlement agreement.

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J.J. is in his third year of college in Bloomington and lives in an apartment. S.J. lives in a dorm at Butler University because S.J. wanted a smaller school than the state schools. Mother did not think S.J. consulted Father for education plans. Mother did not have a conversation with Father about where the Children would attend college. Father called S.J. very rarely and wrote "[v]ery seldom." Transcript at 80. J.J.'s tuition at IU is "almost Four Thousand a semester" and S.J.'s tuition at Butler is "about Eight Thousand a semester." Id. at 53-54. M.J. is in high school and lives with Mother. Father has recently corresponded with S.J. and J.J. On July 26, 2005, Father filed a motion to modify support and secondary expenses. 1 On August 24, 2005, Mother filed a petition to modify support and postsecondary educational expense. 2 After a hearing, the trial court entered the following order: FINDINGS OF FACT 1. The parties' oldest son, [J.J.] (age 21), completed two (2) years of college at Vincennes University and now attends Indiana University, where he is a junior academically. Pursuant to paragraph 1.8 of the February 28, 2002 Marital Settlement Agreement ("Settlement Agreement"), [Mother] properly applied [J.J.]'s stock certificates to [J.J.]'s post-secondary educational expense. The stock certificates are nearly depleted.

2.

1

The Father's motion to modify is not included in the Appellant's Appendix. The Mother's petition to modify is not included in the Appellant's Appendix.

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In paragraph 1.8 of the Settlement Agreement, the parties agreed that the children's post-secondary education would be split on a semester basis, thirty percent (30%) to Mother and seventy percent (70%) to Father, after all grants, loans and other monies are sought by the children. The obligation of the parents was limited to specified expenses for a state supported college in Indiana not to exceed a bachelor's degree or four and one-half (4 1/2 ) years, whichever occurs first. At the time the parties entered their Settlement Agreement in 2002, their child support worksheet attached to the Settlement Agreement showed the Father's weekly income of Four Thousand Two Hundred Sixty-Nine Dollars and Twenty-Three Cents ($4,269.23) per week ($220,000.00/yr.) and the Mother's weekly income of One Thousand One Hundred Twenty-Nine Dollars ($1,129.00) per week ($58,708.00/yr.) based on her taxable alimony. Mother's Exhibit 2 (copy attached) showed for years 2003 and 2004 that the Father had average weekly income of Six Thousand Eight Hundred Ninety-Seven Dollars ($6,897.00), after deduction for alimony paid to the Mother. The Mother's current weekly income is One Thousand Three Hundred Sixty-Nine Dollars ($1,369.00) per week and wages of Two Hundred Forty Dollars ($240.00) per week. At the October 3, 2005 hearing, the Father claimed his 2005 income will only be Two Thousand Three Hundred Sixty Dollars ($2,360.00) per week, or approximately One Hundred Twenty-Three Thousand Dollars ($123,000.00) per year (Father's Exhibits F, G and H). The Court finds this is dramatically less than the Father earned in either 2002 ($222,000/yr.), 2003 ($486,045.00/yr.) or 2004 ($231,236.00/yr.). Moreover, Mother's Exhibits 7-10 showed the Father actually deposited One Hundred Twenty-Seven Thousand Five Hundred Sixty-Two Dollars ($127,562.00) into his bank accounts during a three (3) month period in 2005. The Father requested that his agreed obligation to pay for the children's post-secondary educational expense, set forth in paragraph 1.8 of the Settlement Agreement, be terminated as a result of an alleged repudiation by both [J.J.] and [S.J.] of the Father.

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The Father recently visited [J.J.] at Indiana University. Both [J.J.] and the Father testified they desire to have a meaningful relationship. [J.J.] is sincere in his desire to build a relationship with his Father. [S.J.] is now a freshman attending Butler University. [S.J.] will reside with the Mother for approximately four (4) months while on breaks from school. While the Father's relationship with [S.J.] has been strained, both [S.J.] and the Father testified they desire to have a meaningful relationship. [S.J.] is sincere in her desire to build a relationship with her Father. Court finds that the parties have an extremely strained relationship, especially between [J.J.] and [S.J.] and [Father]. Despite the strained relationship, the Court finds that the children have not, in fact, repudiated [Father] and that all parties, including both parents, are somewhat to blame for this state of affairs. The actions and/or inactions of [Father] have contributed to the strained relationship with the children. The parties' youngest child, [M.J.] (age 16), continues to reside at the Mother's residence in Vincennes and is expected to attend college after graduation from high school. The Mother requested that paragraph 1.8 be modified to reflect the parties' contribution to [S.J.]'s educational expense at Butler University, which is expected to be more than Eight Thousand Dollars ($8,000.00) per year higher than a state supported university. [S.J.] had a 3.9/4.0 average in high school and is a business major at Butler. [S.J.] chose Butler because she was far more comfortable in a smaller university setting, than at I.U. or Purdue. [S.J.] is very happy at Butler and it is in her best interest that she continues her studies at Butler. The parties have the economic ability to pay for [S.J.]'s postsecondary educational expense at Butler without causing financial hardship. CONCLUSIONS OF LAW

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The Father's post-secondary educational expense obligations continue past age twenty-one (21) pursuant to Ind. Code

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