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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.

FILED
Nov 29 2011, 9:37 am

ATTORNEY FOR APPELLANT: SCOTT J. LENNOX Reed & Earhart Attorneys at Law, P.C. Warsaw, Indiana
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
IN RE: THE MARRIAGE OF STEVE METZGER, Appellant-Petitioner, and PEGGY METZGER, Appellee-Respondent. ) ) ) ) ) ) ) ) ) ) )

No. 43A03-1101-DR-18

APPEAL FROM THE KOSCIUSKO SUPERIOR COURT The Honorable A. Christopher Lee, Special Judge Cause No. 43D01-0506-DR-513

November 29, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Steve Metzger (Father) appeals from the trial court`s order requiring him to pay child support and a portion of expenses incurred for the post-secondary education of two of his children, N.M. and S.M. We affirm. Issues Father raises several issues for our review, which we restate as: I. Whether the trial court improperly refused to modify the amount of income it had imputed to Father in the dissolution decree for purposes of determining his obligations to pay child support and educational expenses; Whether the trial court erred when it did not determine that N.M. and S.M. had unilaterally repudiated their relationship with Father; and Whether there was sufficient evidence in the record to support the trial court`s determination of the total cost of education for N.M. and S.M. Facts and Procedural History1 Father and Peggy Metzger (Mother) (collectively, Parents) were married and had three children, J.M., S.M., and N.M. On June 29, 2005, Father filed his petition for dissolution of the marriage. On October 7, 2006, Parents` marriage was dissolved. At that time, J.M. was emancipated, S.M. remained at home with Mother while she attended college at Ivy Tech State College (Ivy Tech), and N.M. was a minor. In 2009, N.M. graduated from high school and began to attend college at Ball State University (Ball State). At some
The record and Appellant`s Appendix upon appeal does not provide a copy of the original child support order or indeed any record from the original dissolution proceedings except for the CCS. We therefore rely on the trial court`s order from which Father now appeals and the associated record for much of the relevant procedural and factual background.
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II. III.

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time between the dissolution of Parents` marriage and N.M.`s graduation from high school, S.M. began to attend Indiana University-Purdue University Fort Wayne (IPFW). As part of the dissolution proceedings, Father was ordered to pay child support for S.M. and N.M. Father presented evidence regarding his income and assets during the dissolution proceedings, but the dissolution court found this evidence to be without credibility and therefore attributed income to him for purposes of entering a child support order. On November 6, 2009, Father filed a motion to modify the child support order, along with a motion seeking a change of judge. A special judge was appointed and assumed jurisdiction over the case on December 1, 2009. On April 13, 2010, Mother filed a verified motion for contempt and for an educational support order as to S.M. and N.M. On December 10, 2010, a hearing was held on Father`s and Mother`s respective motions. Each party submitted proposed orders, and on December 13, 2010, the trial court entered its findings and conclusions, adopting Mother`s proposed order. The trial court found Father`s testimony and documentary evidence at the hearing regarding his financial situation to be without credibility; imputed to Father income of $1,249 per week; ordered Father to pay child support in the amount of $197.00 per week; required Father to pay $1,856.00 for S.M.`s education for each of the 2009-2010 and 2010-2011 school years and $8,294.00 for N.M.`s education for each of the 2009-2010 and 2010-2011 school years. The trial court also found Father to be in contempt of court for failure to comply with previous child support orders and therefore ordered Father to pay Mother`s attorney fees in the amount

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of $1,500.00. This appeal followed. Additional facts will be supplied as needed. Discussion and Decision Standard of Review Father appeals from the trial court`s order denying his request to modify his support obligations, finding that S.M. and N.M. have not repudiated their relationship with Father, and requiring him to pay a portion of S.M.`s and N.M.`s post-secondary education expenses. A calculation of child support is presumptively valid, and we review such decisions for clear error. Saalfrank v. Saalfrank, 899 N.E.2d 671, 675 (Ind. Ct. App. 2008). Where post-secondary educational expenses are at issue, we review the decision to order parents to pay such expenses for an abuse of discretion, and the apportionment thereof for clear error. In re Marriage of Blanford, 937 N.E.2d 356, 363 (Ind. Ct. App. 2010). Here, the trial court entered special findings and conclusions sua sponte. Our standard of review in such situations is well settled: When a trial court enters special findings and conclusions sua sponte, the specific findings and conclusions control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found. Nelson v. Marchand, 691 N.E.2d 1264, 1267 (Ind. Ct. App. 1998). On appeal, we review the trial court`s specific findings and conclusions under a two-tiered standard of review. Staresnick v. Staresnick, 830 N.E.2d 127, 131 (Ind. Ct. App. 2005). We first consider whether the evidence supports the findings, and next whether the findings support the judgment. Id. The trial court`s findings and conclusions will be set aside only if they are clearly erroneous, that is, if the record contains no facts or inferences supporting them. Id. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. Id. We 4

neither reweigh the evidence nor assess the credibility of witnesses, but consider only the evidence most favorable to the judgment. Id. We review conclusions of law de novo. Id. However, we may affirm a general judgment on any theory supported by the evidence adduced at trial. Nelson, 691 N.E.2d at 1267. Tew v. Tew, 924 N.E.2d 1262, 1264-65 (Ind. Ct. App. 2010), trans. denied. We note that Mother has not submitted an appellee`s brief. In such cases, we need not develop arguments for the appellee, but rather review the trial court`s order for prima facie error. Painter v. Painter, 773 N.E.2d 281, 282 (Ind. Ct. App. 2002). Prima facie error is error at first sight, on first appearance, or on the face of it. Id. (quoting Hamiter v. Torrence, 717 N.E.2d 1249, 1252 (Ind. Ct. App. 1999)). Imputed Income Father contends that the trial court`s decision not to modify the income of $1,249 per week it had imputed to him for the purposes of determining child and educational support obligations was an abuse of discretion. Father moved to modify an existing order setting forth his child support obligations. Indiana Code section 31-16-8-1 permits modification of an existing child support order and sets forth the requirements for such a modification: Except as provided in section 2 of this chapter [relating to matters of health insurance coverage], modification may be made only: (1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or (2) upon a showing that:

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(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and (B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed. (c) Modification under this section is subject to IC 31-25-4-17(a)(6). Ind. Code

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