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FOR PUBLICATION

ATTORNEY FOR APPELLANT: LEANNA WEISSMANN Lawrenceburg, Indiana

ATTORNEY FOR APPELLEE: JOHN B. NORRIS Hass, Vandivier & Norris Franklin, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN RE: THE MARRIAGE OF RONALD HENSLEY, Appellant-Respondent, vs. MELISSA HENSLEY, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) )

No. 15A01-0610-CV-476

APPEAL FROM THE DEARBORN CIRCUIT COURT The Honorable James Morris, Special Judge Cause No. 15C01-8901-DR-23

June 29, 2007 OPINION - FOR PUBLICATION

MAY, Judge

Ronald Hensley appeals the modification of his support obligation for two daughters born during his marriage to Melissa Bales. 1 He alleges the court placed an excessive obligation on him. 2 We reverse and remand. FACTS AND PROCEDURAL HISTORY Hensley and Bales have two daughters: M.H. was born on June 7, 1985, and S.H. was born August 7, 1986. They were divorced in 1989, when the girls were three and four years old, and Bales was given custody. In 1992, an agreed entry set Hensley's child support for both girls at $150 per week. Neither the agreed entry nor any previous order mentioned college expenses. On May 5, 2003, Bales filed a motion to modify support because M.H. was to attend Ohio State University in the fall. The hearing was scheduled for February 25, 2004, but was not held because Hensley failed to appear. 3 Bales then filed a second motion to modify support on August 2, 2004, when S.H. was to begin attending St. Louis University. The court held a hearing on both petitions on August 16, 2005. On September 18, 2006, the trial court modified support in an order that included the following Findings and Conclusions:

After Melissa divorced Ronald, she remarried and her surname became "Bales." To avoid confusion, we refer to Ronald as "Hensley" and to Melissa as "Bales." 2 Hensley also raises a number of challenges to the sufficiency of the evidence, including whether Bales presented sufficient evidence to demonstrate the actual cost of M.H.'s expenses while living off campus, to demonstrate S.H.'s expenses, and to demonstrate Bales mortgaged her home to cover college costs. However, the trial court was required to find facts based on the evidence in the record. As Hensley submitted no evidence regarding those costs or the absence of "new" mortgages on Bales' home, he cannot be heard to complain the court erred by relying on the only evidence available. 3 The record does not make clear why Hensley failed to attend the hearing, although there is some suggestion he did not receive notice. In any event, no hearing occurred on the first petition until after the second petition was filed.

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[Bales] testified that she is voluntarily unemployed and has been for a number of years. Therefore minimum wage has been inputed [sic] to [Bales] on the Indiana Child Support Guidelines. [Bales] has one (1) subsequent child. The Court finds that [Bales] could work and has no disabilities and probably is under employed at the level of a minimum wage job. [Hensley] has two subsequent children and income of one thousand two hundred eighty six dollars and eighty seven cents ($1286.87) per week that includes some overtime, but this weekly figure is less than the total income/year to date divided by the number of weeks for 2005. [Hensley]'s check shows a garnishment of $150.00 per week for these children and $294.00 per week for subsequent born children by a second marriage. [Hensley] admits he has reconciled with the second wife and that money garnished for the subsequent born children is being returned to the family. College expenses are discretionary with the Court. The Court is basing its decision on the parties['] abilities to pay. [Hensley] should be required to pay some of his children's college expenses. It appears that [Hensley] had no input into where the children went to school. It also appears from the record that there was no hearing on the motions to modify until August 2005. Considering the lack of communication by both parties and both children, [Hensley] is ordered to pay past college expenses beginning in the college years 2004 and 2005 when he would have had notice and the opportunity to make objections and to enter into discussions. [Bales] submitted exhibits showing book fees and expenses to attend Ohio State for one year was $19,227.00. The Court roughly apportions to the student one-third of the costs for attending a state school which cost would be $6,409.00 based upon the evidence presented considering loans, scholarship awards and ability to work. The total left would be the responsibility of the parents pursuant to the guidelines or $12,818.00 for each child. The Court may limit expenses to state supported colleges and universities. [Hensley]'s responsibility would be 86% of the final expenses for each child after apportionment to the children of one third for years 2004 and 2005and [sic] continuing until each child completes four years. [Hensley] would owe [Bales] reimbursement for those expenses totaling $22,046.00 for the 2004-2005 year minus any overpayment for child support. [Hensley] would owe at least an equal amount for the 2005-2006 and 2006-2007. In the years 2007 and 2008 [S.H.] would be the only student and [Hensley] would owe a minimum of 3

$11,023.00 for each child. Excess amount over child support that is due should be credited toward college expenses. 17. Considering two subsequent children, [Hensley's] obligation for child support would be $191.50 and would be made retroactive to the date the first petition to modify was filed which was May 5, 2003. 18. Considering two subsequent children, [Hensley's] child support obligation would be $76.60 per week with that amount being retroactive to the date of second petition or August 2, 2004. 19. [Hensley's] arrearage as of August 2, 2004 would be $2,697.50 and [Hensley's] overpayment as of August 16, 2005 was $3,963.60. This leaves an over-payment as of August 16, 2005 of $1,266.10. Any overpayment that is paid above shall be applied to college expenses previously due. 20. [Hensley] has been paying $150.00 per week since August 2nd, 2004 and continuing. Each payment would be an over-payment of $73.40 per week or $3,816.60 for the year to be credited against [Hensley's] required college expenses. 21. Respondent may pay weekly toward college expenses and any amount over $76.60 would be credited to college expenses owed. 22. The Court considers the following amount as [Hensley's] expenses for college based upon the evidence given until substantial changes occur or until further order of this Court. 2004-2005 [M.H.] and [S.H.] = $11,023.00 + $11,023.00 23. [Hensley] has not paid any expenses for the first two years and [Bales] has contributed all expenses by mortgaging her house. 24. [Hensley] would owe [Bales] $22,046.00 minus $1,266.10 overpayment on child support for college expenses through August 16, 2005 for a total of $20,779.90 for the years 2004 and 2005. That amount would be paid to [Bales]. 25. College expenses would continue to accrue each year at least in amounts already stated and [Hensley] would be responsible for 86% based upon income guidelines until further order of this Court. 26. [Hensley] would be responsible for reimbursing [Bales] in the amount of $20,779.90 within three years from the date [S.H.] completes her undergraduate degree. IT IS THEREFORE ORDERED AND ADJUDGED THAT: 1. [Bales'] first and second Motion for Modification are hereby granted. 2. That [Hensley's] weekly child support as of May 5, 2003 until August 2, 2004 should be $191.50. 3. That [Hensley's] weekly child support obligation as of August 2, 2004 is $76.60 and continues until further order of this Court..[sic] 4

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[Hensley] has overpaid support by the amount of $1,266.10 as of August 16, 2005. This amount should be ordered against college expenses owed to [Bales]. [Hensley] owes $20,779.90 to [Bales] for college expenses in years 2004 and 2005 and shall reimburse [Bales] within 3 years from the date [S.H.] graduates, as long as she graduates within four years. College expenses would continue to accrue to [Hensley] each year in the amount of $11,023.00 per child per year in school until each child finishes four years of college or until further order of this Court. [Hensley] is responsible for 86% of college expenses after a reduction of one third attributed to the children until they complete 4 years or until further order of this Court.

(Appellant's App. at 10-14.) DISCUSSION AND DECISION We review a trial court's apportionment of college expenses for clear error. Carr v. Carr, 600 N.E.2d 943, 945 (Ind. 1992). Accordingly, we will affirm the judgment unless it "is clearly against the logic and effect of the facts and circumstances which were before" the court. Id. Regarding support orders for college expenses, our legislature has provided: (a) The child support order or an educational support order may also include, where appropriate: (1) amounts for the child's education in elementary and secondary schools and at institutions of higher learning, taking into account: (A) the child's aptitude and ability; (B) the child's reasonable ability to contribute to educational expenses through: (i) work; (ii) obtaining loans; and (iii) obtaining other sources of financial aid reasonably available to the child and each parent; and (C) the ability of each parent to meet these expenses . . . . Ind. Code

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