David K. Miller, Appellant-Respondent,
Joy A. (Miller) Brown, Appellee-Petitioner
from the Bartholomew Superior Court 2 The Honorable Jon W.
Webster, Special Judge Trial Court Cause No.
ATTORNEY FOR APPELLANT Sean G. Thomasson Thomasson,
Thomasson, Long & Guthrie, P.C. Columbus, IN
ATTORNEYS FOR APPELLEE R. Patrick Magrath Alcorn Sage
Schwartz & Magrath, LLP Madison, IN
VAIDIK, CHIEF JUDGE.
While David Miller ("Father") and Joy Brown
("Mother") were married, Father opened two college
savings accounts in his name, designating the couple's
two sons as the beneficiaries. After the couple divorced,
Father continued making contributions to those two accounts,
and Mother opened two additional accounts in her own name
with the boys as the beneficiaries. The older son enrolled in
college but eventually withdrew. At issue in this case is the
trial court's order requiring Father and Mother to, among
other things, combine all the savings accounts into a single,
jointly owned account for the benefit of the younger son.
Father appeals. He says he has no objection to paying his
share of his son's college expenses but argues that the
funds in the accounts he opened are his property and that the
trial court lacked authority to make Mother a co-owner. We
agree with Father, reverse the order in its entirety, and
remand for further proceedings.
and Procedural History
Father and Mother married in 1986 and had two sons: Z.M.,
born in May 1995, and N.M., born in December 1997. During the
marriage, Father opened two "529 accounts"-the
tax-advantaged college savings accounts authorized by 26
U.S.C. § 529. Father designated Z.M. as the beneficiary
of one of the accounts and N.M. as the beneficiary of the
Father and Mother divorced in 2010. They entered a settlement
agreement regarding property division, as well as custody and
child support, but the agreement did not specifically address
the 529 accounts, which at the time had balances of
"roughly $5, 000" each. Tr. p. 22. After the
divorce, Father continued contributing to the accounts, and
Mother opened two new 529 accounts in her own name, also with
Z.M. and N.M. as the designated beneficiaries.
In June 2014, Mother filed a petition in which she indicated
that Z.M. had started college and asked the trial court to
order Father to pay a share of the expenses. Father objected,
noting that Z.M. was nineteen years old "and thus
emancipated" when Mother filed her petition and arguing
that the petition was therefore "late, moot, and
untimely and should be dismissed." Appellant's App.
Vol. II p. 34. In January 2015, while Mother's petition
relating to Z.M. was still pending, she filed a similar
petition as to N.M., explaining that he had "plans to
attend college once he graduates high school."
Id. at 36.
The trial court held a hearing on both of Mother's
petitions in April 2015. Mother claimed that she had paid
between $20, 000 and $25, 000 for Z.M.'s "attempt at
college"-an attempt that had "failed."
Id. at 41; Tr. pp. 11-12. Nonetheless, the trial
court granted Father's motion to dismiss Mother's
petition relating to Z.M., relying on our decision in
Neal v. Austin, 20 N.E.3d 573 (Ind.Ct.App. 2014), to
hold that Mother had waited too long (i.e., until after Z.M.
had turned nineteen) to file the petition. As such, the
court denied Mother's request for reimbursement from
Father's 529 account for Z.M., which by that point had a
balance over $20, 000. Regarding N.M., the court deferred
consideration of Mother's petition, noting that N.M. was
still in high school and had not even applied to any
N.M. attended Ivy Tech in the fall of 2016, and Mother
notified the trial court that her petition relating to N.M.
was ripe. The trial court held another hearing, at which
Mother testified that N.M.'s tuition for the fall was
$1600 and that Father had not paid any of it. She also
testified that N.M. had withdrawn from Ivy Tech and enrolled
at Indiana State, at a cost of approximately $20, 000 per
year. By the time of the hearing, Mother had consolidated her
two 529 accounts for Z.M. and N.M. into a single account for
N.M., with a balance of approximately $11, 400. Father was
still maintaining the two original 529 accounts, with
balances of approximately $21, 000 for Z.M. and $25, 000 for
N.M. Based on the parties' testimony and the exhibits
they submitted, the trial court ordered that: (1) the parties
consolidate all the 529 funds into a single account, with
Mother and Father as "equal co-owners"; (2) 100% of
N.M.'s college expenses be paid from the consolidated
account (including reimbursing Mother for the Ivy Tech
expenses); and (3) in the event that the consolidated account
is exhausted, additional expenses will be paid 55% by Mother
and 45% by Father (except for textbooks and fees, which will
be paid by N.M.). Appellant's App. Vol. II p. 12.