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ATTORNEY FOR APPELLANT C. Richard Marshall Columbus, Indiana

ATTORNEY FOR APPELLEE Kathleen M. Sweeney Indianapolis, Indiana

In the

Indiana Supreme Court
_________________________________ No. 03S05-0608-CV-293 IN RE THE MARRIAGE OF, VIRGINIA (ENGLAND) SNOW, Appellant (Petitioner below), v. STEWARD ENGLAND, Appellee (Respondent below). _________________________________ Appeal from the Bartholomew Superior Court, No. 03D02-0011-DR-228 The Honorable Roderick D. McGillivray, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 03A05-0602-CV-56 _________________________________ March 13, 2007 Shepard, Chief Justice.

During their marriage, Steward England and Virginia (England) Snow became guardians of Snow's grandson from a prior marriage. The parties later divorced, submitting a property settlement agreement, which the trial court incorporated into their dissolution decree.

After the dissolution, England remarried, withdrew as guardian, and sought modification of the decree's section about payments for the benefit of the grandson. The trial court granted

modification, and the Court of Appeals affirmed. We conclude that termination of guardianship was not grounds for modifying the dissolution decree.

Facts and Procedural History

Virginia Snow married Steward England in 1978. On April 16, 1990, Snow's son from a prior marriage fathered J.H. out of wedlock in South Carolina. Snow and England brought J.H. to Indiana to raise him. On August 27, 1990, in the Bartholomew Circuit Court, Snow and England obtained joint guardianship over J.H.

Ten years later, Snow filed for dissolution. Snow and England executed a settlement agreement, by which the parties specified a distribution of the marital property, agreed to "joint custody" and stipulated that England would make payments to Snow for J.H.'s care. A section of the agreement entitled "Child Support" provided: There shall be no child support per se paid by either party to the other for and on behalf of [J.H.]. [England] shall pay the amount of $300.00 as a clothing allowance two (2) times per year, on or before August 1st of each year and on or before April 1st of each year unless otherwise agreed between the parties. [England] shall also pay for all school book and related fees connected with [J.H.'s] elementary, middle school and secondary education. [England] will additionally pay the amount of $50.00 per week to [Snow] for food and miscellaneous expenses associated with [J.H.]. [England] shall also maintain [J.H.] as a dependent on his health insurance and pay all deductible and uninsured expenses. (Appellant's App. at 103.) The court incorporated the agreement into its final decree of

dissolution on October 19, 2001.

Following the dissolution, J.H. lived primarily with England, and Snow and England proceeded in accordance with the decree. In 2005, England remarried and subsequently

petitioned to resign as guardian of J.H. The court recognized England's resignation on June 3, 2005.

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England simultaneously petitioned to modify the 2001 dissolution decree. He sought to "remove all references requiring him to make any payments to [Snow] for the benefit of [J.H.]." (Appellant's App. at 113.)

Snow moved to dismiss. The trial court denied this motion and granted England's petition to modify. The Court of Appeals affirmed. Snow v. England, No. 03A05-0602-CV-56, slip op. at 7 (Ind. Ct. App. Jun. 21, 2006). We granted transfer, vacating that opinion, and now reverse.

Standard of Review

When reviewing a Trial Rule 12(B)(6) motion to dismiss for failure to state a claim, we accept as true the facts alleged in the petition. As we said in Martin v. Shea, "a complaint is not subject to dismissal under Trial Rule 12(B)(6) unless it appears to a certainty that plaintiff would not be entitled to relief under any set of facts." 463 N.E.2d 1092, 1093 (Ind. 1984). Thus, we read England's petition to modify the dissolution decree in the light most favorable to him.

Snow advances two legal theories for finding that modification is inappropriate and that her motion to dismiss should be granted. First, she argues that England is in loco parentis to J.H. and that England is thus obligated to pay child support as if he were J.H.'s natural father. Second, she argues that England failed to demonstrate any "changed circumstances" that justify modification of the dissolution decree under Ind. Code

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Indiana Law