FOR PUBLICATION

ATTORNEYS FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

ANDREW C. MALLOR    WILLIAM H. ANDREWS
KENDRA GOWDY GJERDINGEN    ANGELA F. PARKER
Mallor Clendening Grodner & Bohrer    Andrews, Harrell, Mann,
Bloomington, Indiana     Chapman & Coyne, P.C.
            Bloomington, Indiana

IN THE MATTER OF THE PATERNITY OF:    )
A.J.R.                                 )
                                       )
D.B.M.,                                )
                                       )
    Appellant-Respondent,              )
                                       )
        vs.                            )    No. 53A01-9804-CV-163
                                       )
STATE OF INDIANA B/N/F A.R.,           )
                                       )
    Appellee-Petitioner.               )

KIRSCH, Judge

Father written correspondence until 1987. Mother lost touch with Father until 1993, when she again wrote to him. In May of 1995, Mother telephoned Father and asked to meet with him to discuss support for their daughter. Father refused. Mother then wrote to Father to confirm their telephone conversation.
    Mother instituted a paternity action pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA) in Ramsey County, Minnesota on December 26, 1995. The action was sent to England as the responding state but was later dismissed because Father was moving out of the English court's jurisdiction to the United States. Mother again filed a URESA action in Ramsey County, Minnesota on September 3, 1996. This action was sent to Indiana as the responding state and filed in the Monroe Circuit Court on November 14, 1996.
    The trial court granted Father's request for blood and genetic testing to determine Daughter's paternity. Mother was out of the country on an academic sabbatical to West Africa at the time. She and Daughter flew from West Africa to Nottingham, England to obtain the court-ordered testing. The cost of the testing was $73.95. Mother's travel expenses were in excess of $1,500.00.
    On February 3, 1998, the trial court conducted an evidentiary hearing and asked the parties to submit proposed orders. On March 12, 1998, the trial court adopted Mother's proposed order as the final order of the court. It provides in relevant part as follows:
        “1.    [Father], . . . employed as an associate professor at Indiana University, is the father of the minor child, [Daughter], born March 7, 1984, in Iowa City, Iowa to [Mother] . . . .

logic and effect of the facts and circumstances that were before the trial court. McGinley- Ellis v. Ellis, 638 N.E.2d 1249, 1252 (Ind. 1994).

to set support based on dependable income, while at the same time providing children with the support to which they are entitled.

        Where a portion of the income is dependable and a portion is contingent upon the production of the worker, earnings of a business or some other variable, the child support obligation may be based on that portion on which the party can depend. The additional or irregular income can then be dealt with by requiring the obligor to pay a fixed percentage of overtime, bonuses, etc., in child support on a periodic but predetermined basis (weekly, bi-weekly, monthly, quarterly). . . .

        Judges and practitioners should be innovative in finding ways to include income that would have benefited the family had it remained intact, but be receptive to deviations where articulate reasons justify them.”

Ind. Child Support Guideline 3(A) (Commentary 2(b)).
    This court has recently considered the nature of irregular income and observed that “[t]he thrust of the commentary and related cases is that the trial court's discretion in excluding overtime and bonus income is grounded in a determination that the income is not dependable or would place a hardship on a parent to maintain.” Thompson v. Thompson, 696 N.E.2d 80, 84 (Ind. Ct. App. 1998). While the court in Thompson made its observations in the context of overtime and bonus income, such observations were drawn from the guidelines and commentary concerning irregular income generally. Because the income at issue here is also irregular, it being derived from Father's voluntary extra work, the Thompson court's observations logically apply. Thus, whether to include Father's summer income in the calculation of his child support obligation rests upon a determination of the income's dependability.
    The evidence in the Record concerning the nature of Father's summer income includes a letter from the Chair of the Promotion and Budget Committee of the department

in which Father is a professor. The letter states that Father received a “Faculty Fellowship” for the summer of 1997, “for course development in connection with our 'Cultures of Science and Medicine' program.” Record at 68. At the time of the hearing, Father was a tenured associate professor and had been employed at the university for eighteen months, including only one summer. Father explained that the fellowship he received in that summer was to compensate him for additional administrative work he performed during the 1996-97 school year on a proposal which his department was promoting. He testified that it was a one-time payment and that he had not applied for similar funds for the summer of 1998 because he had not performed any additional work as in the prior year. Father further testified that the deadline had passed for submitting applications for summer teaching positions, which positions were limited and difficult to obtain. Father stated that he had applied for a research grant for the summer of 1998, but that his application was denied. He also explained that extra work in the summer took away from his research. There is nothing in the Record to contradict Father's assertions concerning the nature of his summer income.
    The trial court found that income similar to the $5,000 fellowship was “available” to Father in future summers “if pursued and applied for” by Father. Record at 45 (Finding No. 3). Use of the qualifying language “if pursued and applied for” means that the income is contingent upon Father's initiatives. A contingency resting upon the production of the worker illustrates the non-dependable nature of the income at least as far as the guidelines contemplate. See Child Supp. G. 3(A) (Commentary 2(b)). By including the income in the calculation of Father's gross income, Father is now required to pursue optional employment

duties just to meet the support obligation, a result not intended by the guidelines. See id. The trial court abused its discretion by including Father's summer income in its calculation of his child support obligation. For purposes of remand, we point out the portion of the guideline commentary urging judges to be innovative in finding ways to include income, and the practical suggestion that irregular income “be dealt with by requiring the obligor to pay a fixed percentage of [the income] in child support on a periodic but predetermined basis . . . .” Id.See footnote 1

actual income during the retroactive period was an abuse of discretion. Cf. Smith v. Mobley, 561 N.E.2d 504, 508 (Ind. Ct. App. 1990) (in support modification context, trial court abused its discretion by failing to reduce support retroactively when obligor mother presented uncontroverted evidence that she had been unemployed and was unable to pay original support amount).

        If the court orders support for a child's educational expenses at an institution of higher learning under section 3 of this chapter, the court shall reduce other child support for the child that:

        (1)    is duplicated by the educational support order; and
        (2)    would otherwise be paid to the custodial parent.”

IC 31-14-11-3, -4.
    The paternity statute furthers a “parens patriae interest in ensuring that the child is not financially or educationally deprived merely because her parents do not live together as a family[.]” Poulson v. Poulson, 612 N.E.2d 193, 195 (Ind. Ct. App. 1993). The educational support order in the present case goes beyond furthering this interest. The order requires Daughter's parents to pay for “a college and post graduate education[.]” Record at 46 (Finding No. 5). Aside from this general mandate, the order does not provide any limits upon Daughter's educational pursuits. There is no mention of in-state or out-of-state tuition. The order does not set forth whether Daughter's parents are obligated to send her to a school that is state-supported or private. The order does not address whether Daughter may pursue an education for the length of time it takes her to graduate or whether there is some limit upon the number of semesters she may attend school at her parents' expense. Daughter's ability to contribute to her education through obtaining student loans, a factor specifically enumerated in the statute, is explicitly excluded from the educational support order without

explanation. The fact that both of Daughter's parents are professors and may be entitled to a tuition fee courtesy at their respective universities is not mentioned in the order despite the statute's provision that financial aid reasonably available to the child's parents must be considered. Furthermore, no mention is made of the level of academic performance required of Daughter to remain eligible for her parents' assistance.
    In short, the trial court abused its discretion in entering an education support order that contains no limit upon the nature of college and post graduate studies Daughter is entitled to pursue at her parents' expense and no limit on the amounts of such expenses. For purposes of remand, we would point out IC 31-14-11-4 which requires a trial court to reduce other child support when the court enters an education support order. No such reduction was provided for in the court's present order. We would also point out the commentary to Guideline 3(E) which contains some useful suggestions on fashioning education support orders.See footnote 2

IC 31-14-17-1. There is no time limitation imposed on the recovery of these expenses provided the paternity petition is otherwise timely filed. The statute, however, sets forth a minimum amount of at least fifty percent of the expenses. Here, the trial court, without explanation, ordered Father to pay the entirety of the $923.52 Mother incurred in out-of- pocket expenses for Daughter's birth. Absent any findings stating why it was appropriate for Father to pay more than fifty percent of the expenses, we cannot determine whether the trial court abused its discretion on this issue. Accordingly, on remand, the trial court must enter findings as to why its order for payment of the entire amount of the birth expenses was appropriate or enter judgment against Father for the presumptive fifty percent of the expenses.

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