ATTORNEY FOR APPELLANT
Dan J. May
ATTORNEY FOR APPELLEES
Edward P. Dechert
SUPREME COURT OF INDIANA
CHAD DUNSON, )
Appellant (Petitioner Below), ) Indiana Supreme Court
) Cause No. 34S02-0108-CV-370
) Indiana Court of Appeals
TERRY and TERESA DUNSON, ) Cause No. 34A02-0006-CV-375
Appellees (Plaintiffs Below). )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable Stephen M. Jessup, Judge
Cause No. 34D02-9012-DR-325
ON PETITION TO TRANSFER
June 12, 2002
This case addresses the emancipation of a minor child who is not under
the care or control of either parent. We hold that for a
child to be emancipated pursuant to Indiana Code section 31-16-6-6(b)(3), the child must
not only be under the care or control of neither parent, but the
child must also (1) initiate the action putting the child outside the parents
control and (2) in fact be self-supporting.
Facts and Procedural Background
Terry and Teresa Dunson were married September 27, 1980, and had three children:
Chad, born December 25, 1980; Tony, born April 16, 1982; and Joshua, born
July 14, 1987. When the marriage was dissolved in 1991, Teresa was
given custody of the three children and Terry was ordered to pay child
support in the amount of $75 a week. After several modifications of
Terrys support obligation, on August 11, 1998 the couple filed and the court
approved an agreed entry granting physical custody of Joshua to Teresa and physical
custody of Tony to Terry. The agreed entry provided for joint custody
of Chad and stated, It is anticipated that Chad will spend an equal
amount of time with both parents. The agreed entry provided that because
both Terry and Teresa were employed at Chrysler Motors, neither would pay child
support. Finally, Terry agreed to pay $2,000 of delinquent support obligations.
On December 10, 1999, Chad filed a motion for provisional orders for child
support. Chad asserted that his parents abandoned him in 1997 and since
then have failed to provide him with any income or support. Chad
requested a provisional order for child support and an educational order retroactive to
the date of the abandonment by the parents. In response, Terry filed
a petition to emancipate Chad and terminate the support order.
After two hearings, at Chads request, the trial court entered findings of facts
and conclusions of law. The trial court found the following: Chad
has not lived with his mother since he was 15 years old.
In the fall of 1996, at the start of Chads freshman year in
high school, Chad and his brother moved to the home of an aunt.
In the fall of 1997, Chad moved to the home of Brenda
Hembree, another aunt, where he still resides today. Neither parent has had
physical custody, care, or control of Chad since the fall of 1996.
The parents have provided Chad with little support since August 11, 1998,
Chad has been dependent on his aunts for shelter, clothing, food, and parental
supervision. Since the fall of 1996, Terry and Teresa have acquiesced in
Chads living arrangements with his maternal aunts, and neither parent has taken steps
to exercise any parental rights under their agreed joint custody. Teresa paid
Hembree $70 a week for three months in late 1997, but has paid
nothing since then. Terry has never paid Hembree for Chads support.
At the time of the hearing, Chad was a senior at Northwestern High
School and was on schedule to graduate in June 2000. Chad has
worked part-time jobs since living with Hembree, including working at McDonalds and serving
in the National Guard, but his income has been less than $2,000 per
The trial court granted Chads motion for relief from judgment due to fraud
and rescinded the August 11, 1998 agreed order as it pertained to Chad.
The trial court then granted Terrys motion to emancipate Chad on the
ground that Chad had not been under the care or control of either
parent as required by section 31-16-6(b)(3)(A) or (B).
The Court of Appeals held that Chad waived any appeal challenging his emancipation
by failing to address the stated basis for the trial courts conclusion that
Chad was emancipated. The Court of Appeals also found that Chad offered
no discernible argument with respect to the trial courts denial of the support
and educational orders, and held that Chad waived review of his argument that
Hembree was a de facto custodian and therefore a necessary party to this
proceeding by failing to raise the issue in the trial court. Dunson
v. Dunson, 744 N.E.2d 960 (Ind. Ct. App. 2001). We granted transfer.
In this appeal, Chad argues: (1) the trial court erred in finding Chad
emancipated; (2) the trial court erred in finding that Hembree was not a
de facto custodian; and (3) that his parents should be responsible for his
appellate attorneys fees under Indiana Code sections 34-10-1-2, 31-15-10-1, and 31-16-11-1. Chad
requests that appropriate support be ordered against Chads parents in favor of Hembree
retroactive to August 11, 1998.
Standard of Review
The trial courts findings were entered pursuant to Indiana Trial Rule 52(A) which
prohibits a reviewing court on appeal from setting aside the trial courts judgment
unless clearly erroneous. The court on appeal is to give due regard
to the opportunity of the trial court to judge the credibility of the
witnesses. T.R. 52(A). When a trial court has made special findings
of fact, as it did in this case, its judgment is clearly erroneous
only if (i) its findings of fact do not support its conclusions of
law or (ii) its conclusions of law do not support its judgment.
Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996).
I. The Requirements for Emancipation
What constitutes emancipation is a question of law, while whether an emancipation has
occurred is a question of fact. Quillen v. Quillen, 659 N.E.2d 566,
576 (Ind. Ct. App. 1995) adopted in part by Quillen v. Quillen, 671
N.E.2d 98, 100 (Ind. 1996). Emancipation cannot be presumed, but must be
established by competent evidence by the party seeking emancipation. Id. Indiana
Code section 31-16-6-6(b) provides:
(b) For purposes of determining if a child is emancipated under subsection (a)(1),
if the court finds that the child:
(1) has joined the United States armed services;
(2) has married; or
(3) is not under the care or control of:
(A) either parent; or
(B) an individual or agency approved by the court;
the court shall find the child emancipated and terminate the child support.
(emphasis added). The trial court determined that emancipation was a factual question
dealing with parental control over a minor and found that Chad was emancipated
because (1) Chad had not resided with his parents since the fall of
1996, (2) it was Chads sole decision to move in with the Hembrees,
(3) neither of Chads parents had physical custody, care, or control of Chad
as required by section 6(b)(3)(A), and (4) the Hembrees alone provided for Chads
care, control, and support.
Although the Court of Appeals found Chad waived consideration of the emancipation issue
by focusing his arguments on subsection (a)(3) rather than challenging the trial courts
conclusion under subsection (b)(3), the Court of Appeals nevertheless found subsection (b)(3) controlling:
Recognizing that past decisions have addressed the emancipation question in terms of a
child placing himself beyond the parental custody and his ability to support himself
without parental assistance, we nevertheless conclude that section 31-16-6-6(b)(3)(A) unambiguously requires only that
a child not be under the care or control of either parent to
be found emancipated under Indiana law.
Dunson, 744 N.E.2d at 968-69. The Court of Appeals therefore affirmed the
trial courts conclusion that Chad became emancipated by putting himself outside the care
and control of his parents.
We disagree with the Court of Appeals holding that emancipation requires only that
a child not be under the care or control of either parent.
Rather, we reaffirm the longstanding view that emancipation requires that (1) the child
initiate the action putting itself outside the parents control and (2) the child
in fact be self-supporting.
Indiana Code section 31-16-1-2 states that [t]he purpose and policy of [31-16-6 is]
to provide for child support. We believe the legislatures intent in enacting
the emancipation statute is to require that parents provide protection and support for
the welfare of their children until the children reach the specified age or
no longer require such care and support. Reading subsection (b)(3) in isolation
to permit emancipation of children who are no longer under parents care or
control conflicts with this underlying purpose. If this automatic emancipation is permitted,
parents are permitted to divorce their children and avoid paying child support simply
by sending their children to live with a third party or, worse yet,
just throwing the child out of the house.
In 1984, the legislature enacted what is now subsection (b), which provides that
a child who joins the United States armed services, gets married, or is
not under the care and control of either parent is emancipated. I.C.
§ 31-16-6-6. This language evolves from prior case law.
Green, 447 N.E.2d 605 (Ind. Ct. App. 1983), trans. denied, involving the emancipation
of a married daughter, was decided a year before the enactment of subsection
(b). The court identified several situations in which a minor child may
place itself beyond the control and support of its parent, including entering the
military and voluntarily leaving the home of a parent and assuming responsibility for
its own care. Id. at 609. Green stated, The salient feature
of these situations is the child creates a new relationship between itself and
its parent, relieving the parent from the responsibilities of support. Id.
Green concluded that marriage of a minor child creates a similar relationship, and
also emancipates the child. Id. at 610. We think the legislature
intended to adhere to Green by enacting subsection (b), and did not intend
to permit emancipation without the childs active participation. Thus we think the
statutory phrase not under the care and control carries with it the implication
that the child must be the one who creates a new relationship or
voluntarily leaves home. Certainly, the other two circumstancesmarriage and service in the
armed forcesapply only if the child takes affirmative action.
The language of subsection (b)(3), viewed in isolation, leads to the conclusion that
neither self-support nor initiative of the child is required for emancipation. Here,
however, we think both stare decisis and legislative acquiescence support the view that
subsection (b)(3) requires that the child must in fact be supporting itself to
be emancipated. The idea that children must be supporting themselves to be
emancipated has been a part of Indiana case law since at least 1952.
Corbridge v. Corbridge, 230 Ind. 201, 208, 102 N.E.2d 764, 767 (1952)
(child deemed emancipated because he was in military and could support himself, but
if the child becomes unable to support itself, the fathers duty [to support
the child] revives). When the legislature enacts a statute in derogation of
the common law, this Court presumes that the legislature is aware of the
common law, and does not intend to make any change therein beyond what
it declares either in express terms or by unmistakable implication. Bartrom v.
Adjustment Bureau, Inc., 618 N.E.2d. 1, 10 (Ind. 1993).
As we observed in Durham ex rel. Estate of Wade v.
U-Haul Intl, 745 N.E.2d 755, 759 (Ind. 2001):
[T]here is no constitutional bar to revisiting judicial authority interpreting a statute.
But if a line of decisions of this Court has given a statute
the same construction and the legislature has not sought to change the relevant
parts of the legislation, the usual reasons supporting adherence to precedent are reinforced
by the strong probability that the courts have correctly interpreted the will of
The view that emancipation requires that the child place herself beyond the parents
control has been frequently assumed or restated since subsection (b)(3) was enacted.
Subsequent case law has also maintained the self-supporting component of emancipation in interpreting
the emancipation statute. See e.g., Young v. Young, 654 N.E.2d 880, 883
(Ind. Ct. App. 1995), trans. denied (Our inquiry under [subsection (b)(3)] is whether
the child is in fact supporting herself without the assistance of her parents.);
Taylor v. Chaffin, 558 N.E.2d 879, 883 (Ind. Ct. App. 1990) (Our inquiry
under [subsection (b)(3)] is not whether the child is capable of supporting herself
but whether the child is in fact supporting herself without the assistance of
her parents.). Indeed, in Quillen, 671 N.E.2d at 100, this Court adopted
and incorporated by reference a Court of Appeals opinion interpreting subsection (b) to
The court there stated, To determine whether a child has
placed herself beyond the control, custody and care of either parent, we consider
whether the child is in fact supporting herself without the assistance of her
parents. Quillen, 659 N.E.2d at 576. Elimination of self-support and the
childs initiative as components of emancipation would be a radical departure from precedent.
It would seem to permit parents to liberate themselves from support obligations
by unilateral action. In view of the frequently recited judicial assumption that
the statute retained these, we do not think the 1984 amendment effected such
a drastic change by omission.
Because we conclude that emancipation requires the childs initiative and the childs self-support,
we find Chad was not emancipated. Although the trial court found that
it was Chads sole decision to live with the aunt, he was not
in fact supporting himself. The trial court found that Chad has worked
part-time jobs since living with Hembree, but his income has been less than
$2,000 per year. The trial court also found that Chad has
been dependent on his extended family since the Fall of 1996 for shelter,
clothing, food, and parental supervision. We cannot say Chad was supporting himself.
Although this case does not present the issue, we add that we do
not mean to suggest that the child may create an obligation of the
parents to provide financial support outside the home by refusing support available within
the structure of the residence of the family or a single parent.
Put another way, we are not suggesting that a child who leaves the
familial residence to escape customary parental supervision is entitled to enlist the aid
of a court in obtaining an order for support. If anything, the
parents in such a case could insist that the child be ordered home
to take advantage of the available support, subject to ordinary supervision.
II. The Absence of a De Facto Custodian
The legislature amended the statutes governing child custody proceedings in 1999 to provide
for de facto custodians.
Chad argues that Hembree was required to be
joined as a de facto custodian by the trial court pursuant to section
That section provides, If a court determines that a child is
in the custody of a de facto custodian, the court shall make the
de facto custodian a party to the proceeding. Ind. Code § 31-17-2-8.5
(Supp. 1999). Chad requests that child support be assessed against each parent
retroactive to August 11, 1998 and made payable to Hembree, as custodian.
The Court of Appeals held that Chad waived this argument by failing to
raise it in the trial court. Dunson, 744 N.E.2d at 970.
Chad did submit a Final Argument Memorandum of Law in support of his
proposed Findings of Fact and Conclusions of Law to the trial court.
In that memorandum, he mentioned the absence of the de facto custodian, but
at no point did he move to join Hembree as an indispensable party
or to dismiss the action for lack of an indispensable party. In
the first place, it is not clear that the de facto custodian statute
applies in this case. The de facto custodian provisions Chad cites are
included in the statutes governing paternity and child custody and visitation, not child
Regardless of the resolution of that issue, we think that
in order to preserve the issue for appeal, Chad was required to move,
pursuant to Trial Rule 19, to join Hembree or dismiss for lack of
an indispensable party. See e.g., K.S. v. R.S., 669 N.E.2d 399, 404
(Ind. 1996) ([F]ailure to add a necessary party [pursuant to Trial Rule 19]
can result in waiver of that right in some cases.); Coak v. Rebber,
425 N.E.2d 197, 199-200 (Ind. Ct. App. 1981) (If [the defendant] had felt
that the presence of [additional parties] was necessary to a just adjudication, he
could have made a motion before or during the hearing to have joined
them as parties.); Ligon Specialized Hauler, Inc. v. Hott, 179 Ind. App. 134,
140-41, 384 N.E.2d 1071, 1076 (1970) (Since [the defendant] could have made a
motion before or during trial to join [another party] as a party, the
question arises whether [the defendants] failure to do so constitutes a waiver under
T.R. 19(C) . . . . We will not allow a party
to sit idly by until appellate review before presenting appropriate motions for the
joinder of additional parties.).
III. Appellate Attorneys Fees
After the trial court entered its order and concluded that Chads parents were
responsible for his trial attorneys fees,
Chad filed several motions in the trial
court. These included a motion for the waiver of appellate costs and
fees, a motion to admit Chad as an indigent litigant, a motion for
the appointment of paupers counsel on appeal, a motion to proceed as a
pauper on appeal, and a motion for an order requiring the parents to
pre-pay appellate attorney fees of Chads counsel.
All were denied. The
Court of Appeals granted Chads subsequent petition for leave to prosecute as a
pauper in aid of appellate jurisdiction. Dunson, 744 N.E.2d at 962 n.1.
By granting this petition, the court ordered the preparation of the record
and evidentiary transcript for Chads appeal to be prepared at public expense and
waived appellate filing fees. Chad now requests that this Court reverse the
trial court on the issue of a paupers appeal, make the July 7,
2000 Court of Appeals order a part of the ruling on appeal, and
remand to the trial court with appropriate instructions to allow a paupers appeal,
appoint counsel and fix appellate fees against the parents for this appeal.
Chad argues that his parents should be responsible for his appellate attorneys fees
under three separate statutes, Indiana Code sections 34-10-1-2, 31-15-10-1, and 31-16-11-1.
Section 34-10-1-2 provides:
If the court is satisfied that a person who makes an application [for
leave to prosecute or defend as an indigent person], the court shall:
(1) admit the applicant to prosecute or defend as an indigent person; and
(2) assign an attorney to defend or prosecute the cause.
All officers required to prosecute or defend the action shall do their duty
in the case without taking any fee or reward from the indigent person.
Ind. Code § 34-10-1-2 (1998). After Chad was granted his petition to
proceed as pauper, this Court found the provision of section 34-10-1-2 requiring attorneys
to take a case without compensation to be unconstitutional. Sholes v. Sholes,
760 N.E.2d 156, 164 (Ind. 2001). We held that if certain findings
are made by the trial court, attorneys appointed for indigents pursuant to section
34-10-1-2 must be paid reasonable attorneys fees at public expense if no alternative
is available. Id. The short answer to Chads claim for attorneys
fees under section 34-10-1-2 is that his attorney was not appointed. Rather,
Mr. May appeared as Chads attorney in his initial petition to the trial
We also deny Chads request that his parents pay his appellate attorneys fees
pursuant to sections 31-15-10-1
The trial courts decision to grant
or to deny attorneys fees will not be disturbed absent an abuse of
discretion. Kovenock v. Mallus, 660 N.E.2d 638, 643 (Ind. Ct. App. 1996),
trans. denied. Chad argues the trial court abused its discretion in denying
appellate attorneys fees because Chads income was less than $2,000 a year, his
parents have over $40,000 income per year, work at DaimlerChrysler in Kokomo, Indiana,
and have not contributed but a few hundred dollars to him, or his
[aunt] since he was 15 years old. The trial court awarded trial
attorneys fees based on its finding that fraud formed the basis of Chads
action, not because Chad was unable to pay for his attorney. We
cannot say the trial court abused its discretion in making that award but
denying appellate attorneys fees.
Because the Court of Appeals granted Chads petition to prosecute as a pauper,
Chad is not responsible for the filing fee of this appeal pursuant to
Indiana Appellate Rule 56(B). However, Chads parents are not responsible for Chads
appellate attorneys fees under any of the cited provisions.
Pursuant to Indiana Appellate Rule 58(A)(2), we summarily affirm the Court of Appeals
finding that Terry Dunson waived review of his cross-appeal by failing to address
the elements of fraud. We reverse the trial courts conclusion that Chad
was emancipated pursuant to section 31-16-6-6, hold that Chad waived any issue based
on failure to join Hembree in this action as a de facto custodian,
and deny Chads request for appellate attorneys fees. We remand to the
trial court with instructions to determine whether support payments for Chad are appropriate
and, if so, to whom the payments should be made.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER JJ., concur.
The trial court found that [e]xcept for providing sums of money to
his son in the approximate amount of $100.00, the Father has contributed nothing
to the support of Chad since August 11, 1998, excluding Christmas gifts of
clothing. [E]xcept for providing health insurance available through her employment, the Mother
has provided nothing for the support of the child.
See e.g., Stitle v. Stitle, 245 Ind. 168, 182, 197 N.E.2d 174,
182 (1964) (Emancipation frees a child from the care, custody and control of
its parents . . . .); Brokaw v. Brokaw, 398 N.E.2d 1385, 1388
(Ind. Ct. App. 1980) (same).
At that time, this provision was found at Indiana Code section 31-1-11.5-12
A de facto custodian is defined, in relevant part, as a person
who has been the primary caregiver for, and financial support of, a child
who has resided with the person for at least . . . one
(1) year if the child is at least three (3) years of age.
Ind. Code § 31-9-2-35.5 (Supp. 1999).
Chad cites section 31-14-13-2.5 throughout his argument that Hembree is a de
facto custodian. That section defines de facto custodian in the context of
establishing paternity. We cite the identically worded statute, section 31-17-2-8.5, because article
17 deals with custody and visitation rights and seems a more likely candidate
in this case.
See In re Guardianship of L.L. & J.L., 745 N.E.2d 222, 230
(Ind. Ct. App. 2001), trans. denied (We believe the intent of the de
facto custodian amendments is to clarify that a third party may have standing
in certain custody proceedings, and that it may be in the childs best
interests to be placed in that partys custody.).
The trial court concluded, Because fraud formed the basis of his action
he is awarded attorneys fees in the amount of Two Thousand Four Hundred
Chads counsel estimated that 30 hours at $150.00 per hour ($4500.00) is
required to provide adequate legal services on appeal.
Section 31-15-10-1 provides, The court periodically may order a party to pay
a reasonable amount for the cost to the other party of maintaining or
defending any proceeding under this article and for attorneys fees [including] amounts for
legal services provided and costs incurred . . . after entry of judgment.
Section 31-16-11-1 provides, The court periodically may order a party to pay
a reasonable amount for: (1) the cost to the other party of
maintaining or defending any proceeding [involving child support orders]; (2) attorneys fees .
. . .