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Friday, June 29, 2012

Ind. Decisions - A second opinion today from Supreme Court

In Annette (Oliver) Hirsch v. Roger Lee Oliver, a 15-page, 3-2 opinion, Justice David writes:

In this case, after two hearings, the trial court issued a number of post-dissolution orders. Relevant to this appeal are the trial court’s specific findings related to the emancipation of a child and the requirement of a parent to contribute toward a child’s post-secondary educational expenses. On appeal, a trial court’s orders should be afforded the appropriate level of deference, as reflected in the applicable standard of review.

This opinion clarifies various aspects of the emancipation statute and also affirms the majority of the trial court’s rulings on emancipation and post-secondary educational expenses. * * *

I. Emancipation.

What constitutes emancipation is a question of law; whether emancipation has occurred is a question of fact. Dunson v. Dunson, 769 N.E.2d 1120, 1123 (Ind. 2002). A party seeking emancipation must establish it by competent evidence. Id. Indiana Code section 31-16-6-6 (Supp. 2010) deals with the termination of child support and emancipation. * * *

Subsection (a)(3) states that the duty to support an eighteen-year-old child terminates if the child has not met certain educational requirements and the child is supporting himself or herself through employment or is capable of doing so. Notably, subsection (a)(3) does not mention that emancipation occurs in conjunction with the termination of child support. On the other hand, if the eighteen-year-old child has met the stated educational requirements and is not capable of supporting himself or herself, then the duty to support the child continues, despite the child having reached the age of majority. In that circumstance, the eighteen-year-old child would not be considered fully emancipated: the dependent relationship between the parent and child continues because the child is still in need of support from the parents. * * *

[W]e find that the evidence does not support the trial court’s finding that Courtney had not been engaged in educational pursuits for four months prior to September 23, 2009, the date the trial court declared her emancipation. * * *

September 23, 2009, is the date Father filed the emancipation petition, and we note that “the assertion of emancipation will be effective as of the date of emancipation rather than as of the date of filing.” * * *

Accordingly, we remand to the trial court to determine the proper date of Courtney’s emancipation. Using that date, the trial court must then recalculate the amount of child support Father overpaid in accordance with the portions of the Court of Appeals opinion that we summarily affirm.

II. Post-secondary Educational Expenses

The issue of whether Father should be required to contribute toward Courtney’s post-secondary educational expenses is distinct from the issue of the date of Courtney’s emancipation. * * *


We affirm the trial court’s ruling that Father is not obligated to contribute to Courtney’s post-secondary educational expenses. We remand to the trial court to determine the correct date of Courtney’s emancipation.

Dickson, C.J., and Massa, J., concur.
Sullivan, J., dissents with a separate opinion in which Rucker, J., concurs.

Believing that the Court has impermissibly rewritten and incorrectly interpreted Indiana Code section 31-16-6-6, I respectfully dissent. * * *

Indiana Code section 31-16-6-6 sets forth three situations in which a child support obligation does not terminate at age 21. Subsection (a)(1) specifies that one of those situations is emancipation, and subsection (b) defines “emancipation.” Ind. Code § 31-16-6-6(a)(1), (b) (2008). If the Legislature intended the circumstances of subsection (a)(3) to constitute emanci-pation, it would have either included those circumstances within subsection (a)(1) or defined “emancipation” in subsection (b) to include them.

That having been said, I acknowledge that with the Legislature’s recent action reducing the age of emancipation from 21 to 19 effective July 1, 2012, see Pub. L. No. 111-2012, §§ 1-2, 2012 Ind. Acts 1590, 1590-91 (amending I.C. §§ 31-14-11-18 and 31-16-6-6), the consequences of the Court’s decision are likely to be insignificant.

Rucker, J., concurs.

Posted by Marcia Oddi on June 29, 2012 03:19 PM
Posted to Ind. Sup.Ct. Decisions