By Richard A. Mann, Richard A. Mann PC
The Indiana Court of Appeals in the opinion of Neal v. Austin, ____ N.E. 3rd ____ (2014) 2014 WL 5493439, out of Marion Superior Court 5, in a case of first impression, determined that even though there was a support order prior to July 1, 2012, the controlling order for purposes of determining by what age a petition for post-secondary educational expenses must be filed pursuant to the legislative amendments to Indiana Code 31-16-6-6 was the most recent support order.
In the above case, the custodial parent had entered into an agreed entry after July 1, 2012, where there was an agreement to emancipate one of two children of the marriage. In that agreed entry, the parties did not address the issue of post-secondary educational expenses. The custodial parent subsequently filed a petition to modify to order post-secondary education expenses for the parties' other child, but after that child had turned 19 years of age.
The court determined in its decision that "In sum, we hold that Indiana Code section 31–16–6–6—and specifically subsections (c) and (d)—necessitates that where the most recent order establishing a child support obligation was issued after June 30, 2012, the child must file a petition for educational needs before the child becomes 19 years of age. Mother and A.N. are not the sort of unsuspecting parties that we believe the General Assembly’s 2013 amendments were focused on. Here, subsequent to the 2012 amendment, Mother participated in the court system and obtained a support order (i.e. the Agreed Order) that specifically referenced the updated statute’s effect of establishing nineteen as the age of legal emancipation. Thus, Mother was aware of the statute’s requirement that a petition for educational support must be filed before A.N. turned nineteen. The trial court issued a support order concerning A.N. after June 30, 2012, and A.N. did not file his petition for post-secondary educational expenses until after turning nineteen years old. Therefore, A.N.’s petition was not filed within the limitations of Indiana Code section 31–16–6–6 and the trial court lacked the authority to issue an order for educational expenses."
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