author: ROBB, Chief Judge.

text:
    Fili MOALA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1109-CR-870.
    Court of Appeals of Indiana.
    June 27, 2012.

      James H. Voyles, Jr., Tyler D. Helmond, Voyles Zahn & Paul, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Following a bench trial, Fili Moala was found guilty as charged of operating a vehicle with an alcohol concentration between .08 and .15, a Class C misdemeanor, and public intoxication, a Class B misdemeanor. He was also found guilty of operating a vehicle while intoxicated as a Class C misdemeanor rather than the Class A misdemeanor charged by the State. All charges stemmed from a single incident of Moala operating his vehicle on a public road. The trial court merged the two operating convictions, entered a judgment of conviction on operating while intoxicated as a Class C misdemeanor, and sentenced him to sixty days. The trial court also entered a judgment of conviction on the public intoxication conviction and sentenced him to 180 days, with the sentences to be concurrent.

Moala appeals, raising one issue for our review: whether the trial court violated double jeopardy in entering convictions for both operating a vehicle while intoxicated and public intoxication when the same evidentiary facts establish both offenses. Moala requests that the Class C misdemeanor operating a vehicle while intoxicated conviction be vacated. The State concedes that the two convictions violate double jeopardy; however, the State requests that the public intoxication conviction be vacated. Concluding the appropriate remedy for the double jeopardy violation is to vacate the operating while intoxicated conviction, we reverse and remand.

Facts and Procedural History

Moala was stopped on Illinois Street in Indianapolis, Indiana on September 3, 2010, for speeding. When the officer approached the vehicle, he smelled the odor of alcohol and noticed that Moala had bloodshot eyes. When the officer asked for identification, Moala first handed him a credit card. Moala admitted that he had consumed five or six drinks. When the officer asked Moala to exit the vehicle, Moala was barefoot and kept encroaching on the officer’s personal space despite the officer’s requests that Moala not approach him. Moala failed two of three field sobriety tests and a chemical test indicated he had a .10 blood alcohol content.

The State charged Moala with operating while intoxicated causing endangerment, a Class A misdemeanor; operating with a blood alcohol content between .08 and .15, a Class C misdemeanor; and public intoxication, a Class B misdemeanor. Moala was tried to the bench, and the trial court found:

... As to Count II, Operating a Vehicle With a Blood Alcohol Concentration, [sic] Court finds the Defendant guilty, a Class B Misdemeanor. And as to Count III, Public Intoxication, Court finds the defendant guilty of a Class B Misdemeanor. ... As to Count I, operating a Vehicle While Intoxicated, Court finds the defendant guilty of a Class C without the endangerment, Operating a Vehicle While Intoxicated as a C Misdemeanor.

Transcript of Sentencing Hearing at 7-8. The trial court originally announced that “Count I and II will merge. As far as sentencing. And Count III, Public Intoxication merges with Counts I and II.” Id. at II. Despite stating that all counts would merge into-one, the trial court announced a sentence for both public intoxication and operating while intoxicated. Moala filed a motion to correct error alleging the trial court erred in merging any of the counts and that double jeopardy requires the trial court enter a conviction only of public intoxication, the highest class crime of which Moala was found guilty. The State responded to the motion to correct error by moving to dismiss the public intoxication count. At a hearing on the motion to correct error, the trial court amended its previous statement by noting that “Count III should not merge with Count I and II and that the sentence should remain as set....” Id. at 25. Therefore, the trial court ultimately sentenced Moala as follows: Count II, operating a vehicle with a blood alcohol concentration between .08 and .15, was merged with Count I, operating a vehicle while intoxicated as a Class C misdemeanor lesser-included offense of the Class A misdemeanor charged, and Moala was sentenced to sixty days for the conviction on Count I. Moala was also sentenced to 180 days for the conviction on Count III, public intoxication. The sentences were ordered to be served concurrently, and all but two days of each was suspended. The State withdrew its motion to dismiss. Moala now appeals.

Discussion and Decision

I. Double Jeopardy Violation

Moala’s opening brief contends the trial court erred in entering a conviction for both operating a vehicle while intoxicated and public intoxication under the actual evidence test announced in Richardson v. State, 717 N.E.2d 32 (Ind.1999).

Article 1, section 14 of the Indiana Constitution states, “No person shall be put in jeopardy twice for the same offense.” In Richardson, our supreme court held that “two or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” 717 N.E.2d at 49 (emphasis in original). Two challenged offenses constitute the same offense under the actual evidence test when a defendant demonstrates based on the actual evidence presented at trial “a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Id. at 58.

The evidence presented at Moala’s trial establishes the following facts: on September 3, 2010, Moala was operating his vehicle on a public road in an impaired manner. Moala argues, and the State concedes, that this evidence established both the operating a vehicle while intoxicated and public intoxication convictions. See Brief of Appellee at 6 (“Defendant’s convictions for operating while intoxicated and public intoxication violate his double jeopardy protections under the Indiana Constitution.”). We agree that the convictions violate our state constitutional double jeopardy principles. See Smith v. State, 725 N.E.2d 160, 162 (Ind.Ct.App.2000) (holding double jeopardy violated when trial court necessarily used evidence that defendant operated his vehicle on a public road while intoxicated to establish convictions for both operating a vehicle while intoxicated and public intoxication). Therefore, one of Moala’s two convictions must be vacated.

II. Remedy for Violation

When two convictions are found to contravene double jeopardy principles, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation. If it will not, one of the convictions must be vacated. In the interest of efficient judicial administration, the trial court need not undertake a full sentencing reevaluation, but rather the reviewing court will make this determination itself, being mindful of the penal consequences that the trial court found appropriate.

Richardson, 717 N.E.2d at 54 (citation omitted). In the Richardson ease, the defendant was convicted of robbery as a Class C felony and battery as a Class A misdemeanor, which our supreme court found to be a violation of the Indiana Double Jeopardy Clause under the actual evidence test. “Because both convictions therefore cannot stand, we vacate the conviction with the less severe penal consequences and leave standing the robbery conviction.” Id. at 55.

Moala was convicted of public intoxication as a Class B misdemeanor and operating while intoxicated as a Class C misdemeanor. There is not a less serious form of either offense, and even if there were, given the facts of this case, reducing either offense would not remedy the double jeopardy violation. Moala asserts that the lower class offense, operating while intoxicated, should therefore be vacated. The State, referring to language from our case-law about vacating the conviction with the “least severe penal consequences,” acknowledges that “it would appear that vacating] the class C misdemeanor driving while intoxicated conviction and keeping the class B misdemeanor public intoxication conviction would be proper.” Br. of Appellee at 7. However, the State asserts that “this should not be the end of the analysis” and requests that the public intoxication conviction be vacated. Id. The State makes two arguments in support of its request. First, the State asserts that the operating while intoxicated conviction, though a lower class of crime, may have more severe penal consequences when the suspension of driving privileges attendant to such a conviction is considered. Second, the State notes that at the motion to correct error hearing, it “made it clear that if one count were vacated, the State would like that to be the public intoxication count ...,” id. at 7, and asserts that prose-cutorial discretion should exist “with respect to choosing which conviction to keep in a double jeopardy situation,” id. at 8.

Our courts have not considered in any detail the phrase “penal consequences.” In most cases in which a double jeopardy violation is found, the reviewing court simply orders the conviction that is the lower class of crime to be vacated. See, e.g., Jenkins v. State, 726 N.E.2d 268, 271 (Ind.2000) (finding felony murder and robbery convictions to violate double jeopardy and declining defendant’s request to vacate felony murder in favor of vacating robbery “because it has less severe penal consequences”); Newgent v. State, 897 N.E.2d 520, 529 (Ind.Ct.App.2008) (ordering Class B criminal confinement conviction to be vacated where convictions of both criminal confinement and murder, a felony, constituted double jeopardy, citing Richardson’s “less severe penal consequences” language); Williams v. State, 892 N.E.2d 666, 669 (Ind.Ct.App.2008) (ordering Class D felony attempted theft conviction to be vacated where convictions of both attempted theft and forgery, a Class C felony, constituted double jeopardy, citing Richardson), trans. denied; Owens v. State, 742 N.E.2d 588, 542 (Ind.Ct.App.2001) (finding convictions of Class B felony attempted robbery and Class D felony battery resulting in injury to a law enforcement officer violated double jeopardy and declining defendant’s request to vacate the attempted robbery conviction because the battery conviction has less severe penal consequences), trans. denied. In Noble v. State, 734 N.E.2d 1119 (Ind.Ct.App.2000), trans. denied, the two convictions found to be double jeopardy were both Class C felonies and therefore “of equal severity.” Id. at 1125. The sentences the trial court imposed for the two convictions were of equal length and ordered to run concurrently; therefore, “there are no more or less severe penal consequences for vacating one instead of the other.” Id. at 1126. The court therefore ordered that the second count be vacated. Id. Thus, the severity of the penal consequences has largely been determined by the class of crime or by the length of the sentence imposed.

As the State notes, however, an operating while intoxicated conviction has consequences in addition to the length of a possible sentence in the form of a license suspension. However, whether a sanction constitutes a criminal punishment depends on the purpose served by the sanction: punitive or remedial. Hunter v. State, 802 N.E.2d 480, 483 (Ind.Ct.App.2004), trans. denied; see Hudson v. U.S., 522 U.S. 93, 98-99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (“We have long recognized that the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, ‘in common parlance,’ be described as punishment. The Clause protects only against the imposition of multiple criminal punishments for the same offense[.]”) (citation omitted) (emphasis in original). In Schrefler v. State, 660 N.E.2d 585 (Ind.Ct.App.1996), we examined a defendant’s claim that both having his driver’s license suspended and being criminally charged with operating while intoxicated constituted double jeopardy. We determined the administrative suspension scheme was “designed to promote the State’s interest in keeping its highways safe from intoxicated drivers” and although “the suspension of driving privileges has some punitive impact on the offender ... [it] is merely incidental to the overriding remedial purpose of the statute.” Id. at 588. Thus, double jeopardy was not implicated. Id. at 589 (citing cases from numerous other jurisdictions also concluding that suspension of driving privileges served a legitimate, non-punitive governmental purpose and did not implicate double jeopardy). As made clear in Schrefler, a license suspension is not punitive and we do not consider any such suspension in determining the “penal consequences” of each of Moala’s convictions.

In a similar vein, we note that the State presumably wishes to preserve the operating while intoxicated conviction because it could serve as a predicate for a Class D felony charge if Moala is ever again charged with operating while intoxicated. As we do not believe non-punitive sanctions should be considered as part of the penal consequences of a conviction, we also do not believe potential future consequences should be considered in determining the penal consequences of a conviction. Considering future consequences would be speculative and raises the possibility of disparate treatment in sentencing.

The State also contends it should have the discretion to determine which conviction should be vacated upon a finding of double jeopardy. It is true that whether to prosecute at all and what charges to bring are generally decisions within the prosecutor’s discretion. Kibbey v. State, 733 N.E.2d 991, 996 (Ind.Ct.App.2000). And it is also true that when the prosecuting attorney files a motion to dismiss an information pursuant to Indiana Code section 35-34-1-13, the trial court has no discretion to deny such motion. Malone v. State, 702 N.E.2d 1102, 1103 (Ind.Ct.App.1998), trans. denied. Accompanying its response to Moala’s motion to correct error, the prosecuting attorney made a motion to dismiss the public intoxication charge. However, Indiana Code section 35-34-1-13 requires the prosecuting attorney to file its motion to dismiss “at any time before sentencing.” Ind.Code § 35-34-l-13(a). Moala had already been sentenced when the State made its motion to dismiss and the trial court was not therefore obligated to grant the motion. Moreover, although the prosecuting attorney has discretion in charging a defendant, and the trial court has discretion in sentencing, see Anderson v. State, 961 N.E.2d 19, 32 (Ind.Ct.App.2012), trans. denied, our supreme court has made it clear that it is the reviewing court that will determine what is the appropriate remedy for a double jeopardy violation. See Richardson, 717 N.E.2d at 54. We therefore do not agree with the State that prosecutorial discretion extends to the determination of which conviction should be vacated upon a finding of double jeopardy.

Moala was convicted in violation of Article 1, section 14 of public intoxication, a Class B misdemeanor, and operating a vehicle while intoxicated, a Class C misdemeanor. The Class C misdemeanor has the less severe penal consequences and we accordingly vacate the operating while intoxicated conviction and leave the public intoxication conviction standing.

Conclusion

Moala’s convictions of both public intoxication and operating a vehicle while intoxicated based upon a single incident of driving his vehicle on a public street violate the state constitutional prohibition against double jeopardy. Accordingly, we reverse and remand with instructions for the trial court to vacate the operating while intoxicated conviction.

Reversed and remanded.

BAILEY, J., and MATHIAS, J., concur.

      . It appears the Richardson court’s exhortation to be “mindful of the penal consequences that the trial court found appropriate,” 717 N.E.2d at 54, comes into play when a double jeopardy violation can be remedied by reducing one crime to a less serious form of the same offense. In Smith v. State, 881 N.E.2d 1040 (Ind.Ct.App.2008), for instance, the court found the defendant’s convictions for Class B felony robbery and Class B felony aggravated battery violated double jeopardy because the same evidence was used to establish the essential injury elements for the elevated robbery charge and the aggravated battery charge. The remedy was to reverse the Class B felony robbery conviction and remand to the trial court with instructions to enter a conviction for Class C felony robbery. Noting the trial court originally sentenced the defendant to a maximum sentence for the Class B felony robbery, we also ordered that the maximum sentence be imposed upon the Class C felony robbery conviction. Id. at 1048; see also D.B. v. State, 842 N.E.2d 399, 404 (Ind.Ct.App.2006) (holding true findings for rape and child molesting arising from single incident violated double jeopardy; in considering which true finding to vacate, the court considered that the juvenile court found it appropriate to commit the juvenile to the Department of Correction, and vacating the child molesting true finding allowed the court’s commitment to stand, pursuant to Indiana Code section 31-37-19-9, which allows commitment to the DOC under conditions satisfied by the true finding of rape).

      . We do note that in H.M. v. State, 892 N.E.2d 679 (Ind.Ct.App.2008), trans. denied, the court rejected the State's argument that regardless of the number of true findings in a juvenile delinquency proceeding, there is but one finding of delinquency and one disposition and therefore a juvenile cannot face double jeopardy by noting that although there is only one delinquency disposition, "there may be penal consequences for an offender later in life relating to these multiple true findings” because a history of juvenile adjudications may properly be used by a trial court to enhance an adult defendant's sentence. Id. at 682. These consequences, however, were considered in the context of determining whether double jeopardy applied at all; not in determining which true finding should be vacated.


source: Caselaw Access Project

author: CRONE, Judge.

license: Public Domain

text:
    Gunther KRANZ and Carol Kranz, Appellants-Petitioners, v. MEYERS SUBDIVISION PROPERTY OWNERS ASSOCIATION, INC., Christopher Bartoszek, and Indiana Department of Natural Resources, Appellees-Respondents.
    No. 75A03-1112-PL-577.
    Court of Appeals of Indiana.
    June 27, 2012.

      Jere L. Humphrey, Wyland, Humphrey, Wagner & Clevenger, LLP, Plymouth, IN, Attorney for Appellants.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Gunther and Carol Kranz own property on Bass Lake that is subject to an easement by other landowners in the Meyers Subdivision (“the Subdivision”). In prior, separate proceedings, the Natural Resources Commission (“the NRC”) determined that the easement holders had the right to place a pier at the end of the easement, but they would have to apply for a permit for a group pier (“the Group Pier”) from the Department of Natural Resources (“the DNR”). The DNR initially denied the permit because it believed that the Group Pier’s proximity to neighboring piers created a safety hazard. The easement holders requested a hearing before an administrative law judge (“the ALJ”), who determined that the easement holders should be allowed to have a group pier and that the Kranzes should move their pier to accommodate the Group Pier. The Kranzes appealed to the NRC, which adopted the ALJ’s decision.

The Kranzes then sought judicial review in the Starke Circuit Court. The Kranzes advanced four reasons for reversing the NRC’s decision: (1) that the NRC lacked jurisdiction to determine property rights; (2) that the decision was arbitrary and capricious because the NRC did not follow its own rule; (3) that the decision was not supported by substantial evidence; and (4) that the decision effected an unconstitutional taking. The trial court affirmed, and the Kranzes appealed to this court. We conclude that the NRC has jurisdiction to render a decision concerning property rights to the extent necessary to implement the permit process. We also conclude that the NRC properly interpreted and applied its own rule. Further, the evidence favorable to the decision is that the safety concerns were alleviated by moving the neighboring piers away from the Group Pier. Finally, we conclude that there was not an unconstitutional taking of the Kranzes’ property. Because Bass Lake is a public freshwater lake, the only effect of the NRC’s decision on the Kranzes’ property rights was to relocate their pier, and there was no indication that the pier was any less usable in the location chosen by the NRC. The decision does not deprive the Kranzes’ property of all or substantially all of its economic or productive usé and therefore is not an unconstitutional taking. Therefore, we affirm.

Facts and Procedural History

The Kranzes own Lot 49 of the Subdivision. The Kranzes’ property is bordered on the north side by Bass Lake, which is a public freshwater lake. The western fifteen feet of the Kranzes’ property is subject to an easement held by the property owners in the Subdivision who do not have lakefront property. Lot 48, which borders the Kranzes’ property on the west, is owned by Christopher Bartoszek. For a period of several decades, the easement holders placed a pier (“the Group Pier”) at the end of the easement in order to access the lake.

In the spring of 2007, a dispute arose between the easement holders and the Kranzes and Bartoszek regarding the Group Pier. Sometime during 2007, DNR Conservation Officer Brian Culbreth examined the deed creating the easement and determined that it created only a right to a path to the lake, not to placement of a pier in the lake.

On October 15, 2007, the easement holders initiated administrative proceedings before an ALJ to review Officer Culbreth’s determination. The Kranzes and Bartosz-ek were respondents in those proceedings. The DNR was also added as a third-party respondent because of its regulatory authority over the lake.

Each party was ordered to provide the ALJ with a written statement of contentions. The easement holders contended that their easement included the right to place a pier in the lake and, alternatively, that they had obtained such a right through adverse possession. The Kranzes and Bartoszek denied these contentions. The DNR’s statement identified four issues: (1) whether the easement contained a grant of riparian rights; (2) if so, whether the right to place a pier in the lake was among those rights; (3) what the dimensions of any riparian zone created by the deed were; and (4) whether the easement holders were required to obtain a permit from the DNR before placing a pier in the lake.

On July 16, 2008, after an evidentiary hearing, the ALJ issued his order. The ALJ found that the deed was ambiguous as to the intent of the easement, and therefore considered extrinsic evidence, including the testimony of easement holders Nancy Adochio, Richard Leadbetter, and Lori Bridegroom. The ALJ found that Richard Leadberter’s testimony was particularly persuasive because he had owned property in the Subdivision since 1956 and was able to testify with clarity and specificity as to the historical use of the easement and pier. Leadbetter testified that in 1962, Joseph Meyers, the creator of the Subdivision, gathered the property owners and informed them that the easement was going to be moved from Lot 48 to its present location on Lot 49. Meyers told the easement holders to move their pier to the new location. At various times, railroad ties, wooden beams, or rocks have been placed along the shoreline to control erosion. Currently, there is a stone seawall extending across Lot 49. Leadbetter and Bridegroom testified that a pier was a “practical necessity” for getting over the wall and into the water. Adochio v. Kranz, 11 CADDNAR 400, 413 (2008), available at www.in.gov/nrc/decision/07-204w.vll.htm. The ALJ found that the Kranzes’ and Bartoszek’s testimony was partially based on hearsay and was less credible than the easement holders’ testimony.

The ALJ found that the easement holders had established, by a preponderance of the evidence, that the easement included the right “to place a pier to facilitate reasonable access to Bass Lake. At a minimum, the pier must afford the ability to safely and conveniently traverse shoreline structures, such as seawalls.” Id. The ALJ determined that the Group Pier was a structure that required a permit from the DNR. Thus, the easement holders were entitled to place a pier in the lake upon successful completion of the permit process. Neither the Kranzes nor Bartoszek sought judicial review of the decision.

On November 6, 2009, Adochio, as secretary of the Meyers Subdivision Property Owners Association (“the Association”), submitted an application for a group pier on behalf of the Association. The application requested permission for a pier 171 feet in length extending from the easement. It would be three feet wide with a sitting bench and a ladder into the water. On January 18, 2010, Adochio supplemented the application with additional information requested by the DNR. Adochio confirmed that the easement holders did not intend to moor boats at the Group Pier.

The DNR denied the permit for four reasons:

1. the proposed project will both infringe on the access of an adjacent landowner to the public freshwater lake and will unduly restrict navigation
2. public safety is a primary concern due to the very narrow corridor that is created on both sides of the proposed pier; as a result of these narrow corridors, boaters and swimmers are at a real or potential risk when put together in the water at the same time
3. due to the very narrow corridors navigation is unduly restricted; boats cannot safely navigate in these corridors without risking damage to their boats or damage to piers when attempting to navigate in these corridors
4.compatibility with the activities of other riparian owners is infringed upon due to the narrow corridors created

Appellants’ App. at 49.

The Association requested review by an ALJ, and an evidentiary hearing was held on July 8, 2010. Easement holders Gail Gorman, Harry Adamek, Bridegroom, and Adochio testified in support of the application. Their testimony indicates that approximately twenty-two properties are part of the Association, and four property owners have opted out of the Association and therefore would not be using the Group Pier, although they could still use the pathway. Easement holders also bring guests with them on occasion. Association members like to sit on the pier or use it to access the water for swimming. A lengthy pier is needed because Bass Lake is generally very shallow, sometimes only waist-deep at the center. Seniors with limited mobility particularly need a pier to get over the seawall. People sometimes bring their boats up to the Group Pier to pick up passengers, but boats would not be moored there. Easement holders kept their boats at a marina or made arrangements with neighbors who had lakefront property.

Use of the Group Pier varies somewhat, with weekends being a little busier and holidays being the busiest time. Adochio testified that about sixteen Association members use the marina instead of the Group Pier, about nine members are senior citizens who use the Group Pier primarily for sitting, and about eleven members use the Group Pier for general recreational purposes. Adochio testified that there were typically four to five people at a time in the area of the Group Pier and the easement, and even at busier times, usually twelve or fewer.

The easement holders testified that the Bartoszeks and the Kranzes had moved their piers toward the easement to “squeeze [them] out.” Tr. at 15. They asserted that there had not been accidents in the past, and there would not be safety or navigational issues if the Bartoszeks and the Kranzes moved their piers toward the center of their shorelines. The Kranzes’ pier is 250 feet long, giving them seventy-nine feet that they could use to moor their boat without concern of interference from the Group Pier.

Bartoszek testified that he had moved his pier eastward toward the easement in order to accommodate his neighbor to the west, who needs a relatively wide pier with a ramp due to a disability. Bartoszek testified that sometimes there are twelve to fifteen people swimming near the Group Pier, and he sometimes does not go out in his boat because he does not feel that he can navigate around all the swimmers. His mother, Maria, previously owned the property. She testified that the pier had always been somewhat toward the east end of their property and claimed that it had been moved over further because she and her husband felt that their riparian zone was too crowded.

Gunther Kranz was not able to testify to any actual accidents in the area near the Group Pier, but did testify in detail to practices that he felt were unsafe, such as swimming at night. Gunther asserted that he had avoided safety issues “by avoiding confrontation” or simply not going out on the lake with his boat. Id. at 119. He stated that two of the support pipes for his pier had been bumped, but he did not know how it had happened. He testified that generally ten to twelve people at a time used the Group Pier on weekends. He is not always able to pull out directly from his pier, but sometimes must pass through the riparian zone of his neighbor to the east to reach the deeper parts of the lake. The Kranzes’ son, Stephen, testified that they had moved their pier because the neighbors to the east had asked them to. He claimed that there were ten to twenty people in the area of the Group Pier on a normal weekend. He stated that there was one occasion when he was bringing his boat into his parents’ pier and nearly hit a small child who darted in front of him.

Lieutenant Jerry Shepherd, a conservation officer, testified that he recommended denial of the permit because the configuration of piers created narrow corridors. He was not aware of any accidents in the area of the Group Pier, but felt that the narrow corridors created real potential for safety or navigational issues. Lieutenant Shepherd testified that an average boat is more than ten feet long and would not be able to turn around in the space between the Group Pier and the neighboring piers. Some boaters might not have the skill to back in or out, and the presence of swimmers would also make safe navigation more difficult. Lieutenant Shepherd felt that a Group Pier would be unproblematic if there was fifteen to twenty feet of clearance on each side. Jim Hebenstreit, the assistant director of the DNR’s Division of Water, stated that denial of the permit was based on Lieutenant Shepherd’s recommendation, and he echoed Shepherd’s concerns about navigability and safety.

The ALJ took notice of Adochio, which the parties stipulated was entitled to res judicata effect. The parties also stipulated that “appropriate delineation of riparian zones was described by the straight-line extension of property lines.” Appellants’ App. at 19. The ALJ found that “the site can become crowded with both human and boating traffic. Crowding is likely to be more serious during the weekends, and particularly the weekends associated with Memorial Day, Independence Day, and the Bass Lake Festival.” Id. at 26. However, the ALJ found that if the Group Pier “were limited to 3 ½ feet in width and placed at the center of the 15-foot wide easement, and if [Bartoszek’s] pier and the Kranzes’ pier were each moved ten feet farther away, Lt. Shepherd’s concerns for navigational safety would be resolved.” Id.

The ALJ ordered Bartoszek to move his pier so that it was seven feet from the line between his property and the Kranzes’. The Group Pier was to be placed nine feet from the western boundary of the easement and two feet from the eastern boundary of the easement. The Kranzes were ordered to move their pier fourteen feet to the east of the eastern edge of the easement. The Association was authorized to construct a pier no longer than 125 feet long. The ladder was permitted, but the sitting bench was not; nor may the Association members moor boats at the Group Pier. Bartoszek and the Kranzes were allowed to have piers up to 300 feet in length and were ordered not to moor boats within the buffer zone that the ALJ created between their piers and the Group Piers.

After the ALJ’s order was issued, the Kranzes raised two ' additional issues, which the ALJ addressed in a supplemental order on December 22, 2010. The Kranzes contended that the NRC lacked jurisdiction “to resolve a dispute concerning riparian ownership.” Id. at 32. The ALJ rejected that argument, concluding that determination of riparian rights was reasonable and necessary to implement the DNR’s statutory powers and duties. The Kranzes also argued that the ALJ’s order resulted in an unconstitutional taking. The ALJ found that issue to be waived because it was not timely raised. On January 14, 2011, the NRC affirmed the ALJ’s decision and adopted his order as its final order.

On February 8, 2011, the Kranzes filed a petition for judicial review of the NRC’s decision in the Starke Circuit Court. The court heard oral argument on November 3, 2011. On November 30, 2011, the court affirmed the NRC’s decision. The court held that the NRC “had jurisdiction to determine all issues involved including determination of easements.” Id. at 39. The court held that the NRC’s decision was not arbitrary or capricious, not an abuse of discretion, and not contrary to law. Finally, the court held that restricting the location of the Kranzes’ pier was not a “taking.” Id. The Kranzes now appeal.

Discussion and Decision

The Kranzes seek review of a decision by an administrative agency. Pursuant to the Administrative Orders and Procedures Act, a reviewing court may neither try the case de novo nor substitute its judgment for that of the agency. Ind.Code § 4-21.5-5-11. We give deference to the agency’s expertise. Ind. Dep’t of Envtl. Mgmt. v. Schnippel Const., Inc., 778 N.E.2d 407, 412 (Ind.Ct.App.2002), trans. denied. We do not reverse the agency’s decision unless the action is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence. Ind.Code § 4-21.5-5-14(d).

The burden of demonstrating the invalidity of an agency action is on the party asserting its invalidity. Ind.Code § 4-21.5-5-14(a). “A decision is arbitrary and capricious when it is made without any consideration of the facts and lacks any basis that may lead a reasonable person to make the same decision made by the administrative agency.” Schnippel, 778 N.E.2d at 412. We do not weigh evidence or judge the credibility of witnesses. Ind. Alcoholic Beverage Comm’n v. River Road Lounge, Inc., 590 N.E.2d 656, 658 (Ind.Ct.App.1992), trans. denied. Although we accord the agency’s interpretation of its governing statutes great weight, we are not bound by the agency’s interpretation. Id.

The Kranzes challenge the NRC’s decision on four grounds: (1) that the NRC lacks jurisdiction to determine property rights; (2) that the decision was arbitrary and capricious because the NRC failed to follow its own rule; (8) that the decision is not supported by substantial evidence; and (4) that the decision results in an unconstitutional taking.

I. Jurisdiction

The Kranzes challenge both Ado-chio and the NRC’s decision in this case to the extent that the decisions were based on the NRC’s determination of the respective parties’ property rights. The powers of administrative agencies are limited to those granted by their enabling statutes. Howell v. Indiana-American Water Co., 668 N.E.2d 1272, 1275 (Ind.Ct.App.1996), trans. denied. “Thus, a party cannot confer jurisdiction upon an administrative agency by consent or agreement. Any act of an agency in excess of its power is ultra vires and void.” Id. at 1276-77 (citation omitted). “Judgments rendered without personal or subject matter jurisdiction are void and may be directly or collaterally attacked at any time.” Person v. Person, 563 N.E.2d 161, 168 (Ind.Ct.App.1990), trans. denied. “Subject matter jurisdiction cannot be waived, and courts at all levels are required to consider the issue sua sponte.” Jernigan v. State, 894 N.E.2d 1044, 1046 (Ind.Ct.App.2008).

The Lake Preservation Act, Indiana Code Chapter 14-26-2, gives the State “full power and control of all of the public freshwater lakes in Indiana.” Ind.Code § 14 — 26—2—5(d)(1). The State “holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.” Ind.Code § 14-26-2-5(d)(2). The owner of property bordering a public freshwater lake, such as Bass Lake, “does not have the exclusive right to the use of the waters of the lake or any part of the lake.” Ind.Code § 14-26-2-5(e).

To protect citizens’ interest in public freshwater lakes, the legislature tasked the DNR and NRC with implementing a permit process for placing structures in the lake or along the shoreline:

(a) Unless a person obtains a permit from the [DNR] under this section and conducts the activities according to the terms of the permit, a person may not conduct the following activities:
(1) Over, along, or lakeward of the shoreline or water line of a public freshwater lake:
(C) place, modify, or repair a temporary or permanent structure.
(b) An application for a permit for an activity described in subsection (a) must be accompanied by the following:
(1) A nonrefundable fee of one hundred dollars ($100).
(2) A project plan that provides the department with sufficient information concerning the proposed excavation, fill, temporary structure, or permanent structure.
(3) A written acknowledgment from the landowner that any additional water area created under the project plan is part of the public freshwater lake and is dedicated to the general public use with the public rights described in section 5 of this chapter.
(c) The [DNR] may issue a permit after investigating the merits of the application. In determining the merits of the application, the [DNR] may consider any factor, including cumulative effects of the proposed activity upon the following:
(1) The shoreline, water line, or bed of the public freshwater lake.
(2) The fish, wildlife, or botanical resources.
(3) The public rights described in section 5 of this chapter.
(4) The management of watercraft operations under IC 14-15.
(5) The interests of a landowner having property rights abutting the public freshwater lake or rights to access the public freshwater lake.
(e) The [NRC] shall adopt rules under IC 4-22-2 to do the following:
(1) Assist in the administration of this chapter.
(2) Provide objective standards for issuing permits under this section, including standards for the configuration of piers, boat stations, platforms, and similar structures. The standards:
(A) may provide for a common use if the standard is needed to accommodate the interests of landowners having property rights abutting the public freshwater lake or rights to access the public freshwater lake; and
(B) shall exempt any class of activities from licensing, including temporary structures, if the [NRC] finds that the class is unlikely to pose more than a minimal potential for harm to the public rights described in section 5 of this chapter.
(3)Establish a process under IC 4-21.5 for the mediation of disputes among persons with competing interests or between a person and the [DNR], A rule adopted under this subsection must provide that:
(A) if good faith mediation under the process fails to achieve a settlement, the [DNR] shall make a determination of the dispute; and
(B) a person affected by the determination of the [DNR] may seek administrative review by the [NRC].
(f) After:
(1) a final agency action in a mediation under subsection (e)(3) that makes a determination of a dispute among persons with competing riparian interests; and
(2) the completion of judicial review or the expiration of the opportunity for judicial review;
a party to the dispute may seek enforcement of the determination in a civil proceeding. The remedy provided under this subsection is supplemental to any other legal remedy of the party.

Ind.Code § 14-26-2-23.

The DNR contends that Indiana Code Section 14-26-2-23 authorizes it to determine property and riparian rights to the extent necessary to implement the permit process. If we were to hold otherwise, the DNR argues, a person would always have to go to court for a determination of his or her property rights before applying for a permit, an unwieldy procedure that the legislature could not have intended.

The Kranzes argue that the NRC “has no right to determine property rights in the first instance, but can only regulate applicants who already have riparian rights.” Appellants’ Br. at 6. The Kranzes cite three cases originating in the trial courts to illustrate that jurisdiction lies in the courts rather than an administrative agency: Brown v. Heidersbach, 172 Ind.App. 434, 360 N.E.2d 614 (1977); Klotz v. Horn, 558 N.E.2d 1096 (Ind.1990); and Gunderson v. Rondinelli, 677 N.E.2d 601 (Ind.Ct.App.1997).

Brown concerned a subdivision on Lake George, which had been platted by the Brown family. The Smith family and the Heidersbach family owned lots that were not adjacent to the lake, but they held an easement over the Browns’ property for access to the lake. The Browns later platted an addition to the subdivision and removed a pier that the easement owners had placed at the end of their easement. The Smiths and the Heidersbachs filed a complaint against the Browns seeking an injunction to prevent the Browns from expanding the number of persons authorized to use the easement and to prevent the removal of any future piers. The trial court granted the injunctions. We reversed, concluding that the language of the deeds did not convey any riparian rights but created only a pathway to the lake that was not held exclusively by the Smiths and Heidersbachs. Brown, 172 Ind.App. at 441-42, 360 N.E.2d at 620.

Klotz concerned a parcel of land abutting Eagle Lake that was owned by the Horn family. The Horns sold the rear portion of the plot to Nedra Sainer, along with a six-foot-wide easement for access to Eagle Lake. Sainer later sold the property to the Klotzes, who placed a pier at the end of the easement. The Horns demanded that the Klotzes remove the pier, but the Klotzes refused, so the Horns sought an injunction. The trial court enjoined the Klotzes from placing a pier or boat at the end of the easement, and we affirmed. Our supreme court reversed, concluding that the language of the deed was ambiguous, and the trial court should have allowed the parties to present parol evidence concerning the original intent of the easement. Klotz, 558 N.E.2d at 1098.

Gunderson concerned a subdivision on Lake Myers. Mark Gunderson owned an easement across the Rondinelli family’s property for access to the lake. Gunder-son placed a boathouse on the easement, installed underground electrical cables, operated motor vehicles on the easement, and cut and piled shrubbery on the easement. The Rondinellis filed a lawsuit seeking to enjoin Gunderson from continuing these activities as well as constructing a pier or mooring boats. The trial court concluded that the easement was intended to create a walking path to the lake, and therefore granted the injunction. Gunder-son, appealed, and we affirmed, finding that Gunderson relied on evidence that was not favorable to the judgment and was not probative of the original owner’s intent. Gunderson, 677 N.E.2d at 604.

The Kranzes argue that these decisions demonstrate that jurisdiction over cases concerning the scope of lake access easements and riparian rights is in the courts rather than the NRC. The Kranzes contend that if the NRC had jurisdiction in cases like Brown, Klotz, and Gunderson, then the plaintiffs’ actions would have been dismissed for failure to exhaust administrative remedies.

The parties appear to assume that jurisdiction must lie exclusively with the courts or exclusively with the NRC. That is not necessarily the case. See, e.g., Midwest Psychological Center, Inc. v. Ind. Dep’t of Admin., 959 N.E.2d 896, 908-09 (Ind.Ct.App.2011) (discussing the doctrine of primary jurisdiction), trans. denied. We need not define the exact parameters of the NRC’s jurisdiction. Unlike Brown, Klotz, and Gunderson, the case before us solely concerns placement of a pier on a public freshwater lake. Brown and Gun-derson addressed multiple issues, only one of which was the placement of a pier in a lake. It is not clear from the opinions whether the lakes at issue in Brown and Klotz were public freshwater lakes. Finally, none of these cases addressed the grant or denial of a permit.

The DNR and NRC are responsible for implementing the statutory process of issuing permits for piers on public freshwater lakes. In adopting rules and issuing permits, the DNR is charged with considering a variety of factors, including the public rights listed in Indiana Code Section 14-26-2-5 and the interests of landowners who own property abutting the lake. Ind.Code § 14-26-2-23(c) and (e)(2). The DNR is also charged with creating a process “for the mediation of disputes among persons with competing interests,” and the DNR has the authority to resolve the issues if the parties do not reach a settlement. Ind.Code § 14-26-2-23(e)(3). Finally, Indiana Code Section 14-11-1-6 charges the DNR generally with enforcing the “laws for the conservation and development of the natural resources of Indiana.” We conclude that the NRC has jurisdiction to determine the scope of a lake access easement or riparian rights to the extent necessary to carry out the process of issuing permits for the placement of piers on public freshwater lakes.

The Kranzes express concern that the NRC lacks the legal expertise to make legal determinations about the scope of lake access easements or riparian rights. We believe that those concerns are unfounded. The NRC has authority to: (1) administer oaths and certify to official acts; (2) require information from any person for purposes of Title 14; (3) issue subpoenas; (4) require the attendance of witnesses; and (5) examine witnesses under oath. Ind.Code § 14-11-1-3. The proceedings before the ALJ were substantially similar to proceedings before a court. To the extent that construing a deed might approach the outer limits of an ALJ’s expertise, the risk of error is reduced by the fact that an affected party can seek review by the NRC, by a trial court, by this court, and potentially by the supreme court. In sum, we do not find the Kranzes’ arguments concerning jurisdiction to be availing; therefore, we proceed to the merits of the NRC’s decision.

II. Application of NRC Rules

The Kranzes argue that the NRC’s decision was arbitrary and capricious because it failed to follow one of its own rules, 312 Indiana Administrative Code 11-4 — 8(c)(1). That rule states:

(c) The [DNR] shall condition a license for a group pier so the placement, configuration, and maintenance of the pier ...:
(1) Provide a reasonable buffer zone between the pier and the:
(A) portion of the lake two hundred (200) feet from the shoreline or water line; and
(B) riparian zone of adjacent property owners to provide for reasonable navigation by the adjacent property owner and by the public. Except as otherwise provided in this clause, the department shall require at least five (5) feet of clearance on both sides of a riparian line (for a total of ten (10) feet). The department may require as much as ten (10) feet of clearance on both sides of a riparian line (for a total of twenty (20) feet) if, based upon the opinion of a qualified professional, additional clearance is required for reasonable navigation. The department may approve an exception to this clause where adjacent riparian owners use a common pier along their mutual property line, and the purposes of this clause are satisfied by waters elsewhere within their riparian zones.

The Kranzes argue that the NRC “took fourteen (14) feet from the Kranzes’ property!,] seven (7) feet from Bartoszek’s lot[,] and none from Meyers subdivision because ‘they don’t have anything to give up’.” Appellants’ Br. at 12. We disagree with the Kranzes’ interpretation of this rule. Their argument appears to assume that the easement holders have their own riparian zone. “Generally, a property owner whose property abuts a lake, river, or stream possesses certain riparian rights associated with ownership of such a property.” Center Townhouse Corp. v. City of Mishawaka, 882 N.E.2d 762, 767 (Ind.Ct.App.2008), trans. denied. Riparian rights “are special rights pertaining to the use of water in a waterway adjoining the owner’s property,” and may include access, swimming, fishing, bathing, boating, and installation of a pier. Daisy Farm Ltd. v. Morrolf 886 N.E.2d 604, 607 (Ind.Ct.App.2008), trans. denied. Holders of a lake access easement do not acquire riparian rights, but may acquire the right to “use the riparian rights of the servient tenant.” Klotz, 558 N.E.2d at 1097.

In Adochio, the NRC determined that the easement included the use of the Kranzes’ riparian rights in the area corresponding to the boundaries of the easement. This fifteen-foot area is not a separate riparian zone, but falls entirely within the Kranzes’ riparian zone. Thus, the references in 312 Indiana Administrative Code 11^4 — 8(c)(1) to riparian lines and zones do not refer to the boundaries of the easement, but to the boundaries of the Kranzes’ riparian zone. Both the Group Pier and the Kranzes’ pier are entirely within the Kranzes’ riparian zone, and both piers are at least five feet from the boundaries of the Kranzes’ riparian zone.

The Kranzes’ argument also appears to assume that the ten-foot buffer on each side of the Group Pier must fit entirely within the easement. However, the rule plainly states that there must be “five (5) feet of clearance on both sides of a riparian line.” 312 Ind. Admin. Code 11-4-8(c)(1)(B). In other words, there must be five feet of clearance between Bartoszek’s pier and the Bartoszek-Kranz riparian line, and five feet of clearance between the riparian line and the Group Pier. On its face, the rule does not appear to address the amount of clearance that should exist between the Group Pier and the Kranzes’ pier, which are both located in the same riparian zone. Nevertheless, the NRC created a buffer of approximately sixteen feet, which is consistent with the spirit of the rule. Thus, we conclude that the NRC correctly applied 312 Indiana Administrative Code 11 — 4—8(c) (1).

III. Sufficiency of Evidence

The Kranzes next argue that the NRC’s decision is not supported by substantial evidence because none of the reasons for the original denial of the permit have been alleviated. Lieutenant Shepherd testified that his primary concern was that the existing configuration of the piers created narrow corridors, which would make navigation more difficult and pose a threat to the safety of both swimmers and boaters. He also stated that he would recommend approval if there were fifteen to twenty feet of clearance on each side of the Group Pier. The NRC’s decision required Bartoszek, the easement holders, and the Kranzes to move their piers so that there would be approximately sixteen feet of clearance on each side of the Group Pier. The evidence favorable to the NRC’s decision supports its conclusion that the new configuration of the piers remedies the original reasons for denying the permit for the Group Pier.

IV. Constitutionality

The Kranzes argue that the NRC’s decision expanded the easement and appropriated fourteen feet of their riparian zone. The Kranzes argue that their property was taken for a private use, which is prohibited by both the Fourteenth Amendment of the United States Constitution and Article 1, Section 21 of the Indiana Constitution. However, the issue of whether a taking is for a public or private purpose is beside the point if there is no taking in the first place. The NRC did not create a riparian zone for the easement holders, nor did it appropriate any portion of the Kranzes’ riparian zone. The easement holders, along with any member of the general public, have always had a right to use any portion of Bass Lake. Likewise, the Kranzes are not required to stay out of the fifteen-foot easement or the buffer between their pier and the Group Pier. Nor are the Kranzes prohibited from venturing into other neighbors’ riparian zones to access their pier.

The only effect of the NRC’s order on the Kranzes is to restrict the area in which they may place a pier. A com-pensable taking may occur even if there is not a “direct seizure” of property. Biddle v. BAA Indianapolis, LLC, 860 N.E.2d 570, 577 (Ind.2007).

The modern test states that regulation effects a taking if it deprives an owner of all or substantially all economic or productive use of his or her property. See Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538-40, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). See also Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 & n. 8, 1030, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 127, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). This test focuses on several factors: the economic impact of the regulation on the claimant, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. Dep’t of Natural Res. v. Ind. Coal Council, Inc., 542 N.E.2d 1000, 1003 (Ind.1989); Penn Cent., 438 U.S. at 124, 98 S.Ct. 2646.

Id. at 577-78 (footnote omitted).

The record reflects that there has been a pier extending from the easement since 1962, when the easement over Lot 49 was created. The NRC found that the Kranzes were aware of this usage: “The Kranzes and Bartoszek purchased their lots with knowledge of the existence and use of the subject easement. The Kranzes were formerly beneficiaries of the subject easement!] At the time of their purchases, various lot owners placed piers and moored boats within the subject easement.” Appellants’ App. at 29. When the NRC confirmed the easement holders’ right to place a pier at the end of the easement, the Kranzes chose not to appeal that decision. The public has always had a right to use any portion of the lake, and the Kranzes have never had the right to exclude anyone from their riparian zone.

It is apparent that the lake is more crowded than the Kranzes would prefer. It is also apparent that some people who use the lake are not as safety-conscious and polite as the Kranzes would like. These problems do not stem' from the NRC’s decision. Given the nature of the public’s right to use the lake, the NRC’s decision has at best a de minimis impact on the value of the Kranzes’ property and their reasonable expectations.

The NRC’s decision does not restrict the Kranzes’ use of the lake, but merely requires them to move their pier several feet to the east. The record reflects that the Kranzes had previously placed their pier toward the center or the eastern edge of their riparian zone. There is no indication that the pier is any less usable at the location chosen by the NRC. The Kranzes’ only proffered reason for moving their pier toward the easement was that they wished to give their neighbor to the east more space. The NRC’s decision was designed to enable all the property owners in the Subdivision to enjoy the lake safely, something that the property owners themselves had not been able to accomplish without government intervention. The character of the government action is to resolve a dispute among property owners and to protect the public interest in the lake. The NRC’s decision does not deprive the Kranzes of all or substantially all of their property’s economic or productive use; therefore, the Kranzes have not demonstrated that the NRC’s decision was a “taking” requiring compensation.

Conclusion

The Kranzes have failed to show that the NRC lacked jurisdiction in this case or the factually related Adochio case. Nor have they shown that the NRC’s decision was arbitrary and capricious or unsupported by substantial evidence. The NRC’s decision is neither a physical nor a regulatory taking in violation of the state or federal constitutions. Therefore, the trial court was correct to affirm the NRC’s decision, and we likewise affirm.

Affirmed.

YAIDIK, J., and BRADFORD, J., concur.

      . The NRC "is an autonomous board that addresses issues pertaining to the [DNR]. This twelve-member board includes seven citizens chosen on a bipartisan basis, three ex officio members from state agencies, and one representative of the Indiana Academy of Science.” Meet the NRC, www.in.gov/nrc/2352.htm (last visited June 7, 2010). See also Ind.Code § 14-10-1-1 (establishing the NRC).

      . Riparian rights have been traditionally associated with owners of land abutting a river or stream, while those with shoreline on a lake or pond acquired littoral rights. Zapffe v. Srbeny, 587 N.E.2d 177, 178 n. 1 (Ind.Ct.App.1992). trans. denied. However, the term “riparian” is now widely used to refer to both classes of ownership. Id.

      . The NRC’s decision is reported in CADD-NAR as Meyers Subdivision POA v. DNR, 12 CADDNAR 282 (2011), available at www.in. gov/nrc/decision/10-093w.v 12.htm.

      . Bartoszek was named a defendant in the Kranzes’ petition for judicial review, but the record does not reflect that he challenged the NRC’s decision, and he is not involved in this appeal.

      . The parties agree that Bass Lake is a public freshwater lake.

        . Indiana Code Section 14-26-2-24 requires the NRC to maintain a list of public freshwater lakes, which can be accessed online at www.in.gov/legislative/iac/20110601-IR-312I10313NRA.xml.pdf (last visited June 7, 2012). Gunderson referred to "Myers Lake in Marshall County," 677 N.E.2d at 602, which is on the list. Klotz originated in Elkhart County, but there is no Eagle Lake in Elkhart County. Two Eagle Lakes are on the list, one in Noble County and one in Starke. Brown originated in DeKalb County, but there is no Lake George in DeKalb County. Two lakes named George are on the list, one in Lake County and one in Steuben County. The opinions in Klotz and Brown do not provide any information from which we can determine whether the lakes at issue in those cases are among the four possibilities on the NRC’s list.

      . The Kranzes do not supply a citation for the phrase in quotation marks.

      . The Kranzes previously owned a lot in the Subdivision that was not a lakefront property.


author: VAIDIK, Judge.

text:
    Jeffrey A. WEISHEIT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 10A01-1202-CR-58.
    Court of Appeals of Indiana.
    June 29, 2012.
    Rehearing Denied August 27, 2012.
    Michael J. McDaniel, New Albany, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Jeffrey A. Weisheit was charged with the death penalty, two counts of murder, and one count of Class A felony arson for killing his girlfriend’s young children in an early morning house fire in Evansville, Indiana, in April 2010 and then fleeing the state. Weisheit requested to be released on bail, but the trial court denied his request. Weisheit now appeals that denial. Because Weisheit has failed to prove that the proof is not evident and the presumption of his guilt is not strong, we affirm the trial court’s denial of bail in this capital case.

Facts and Procedural History

Weisheit dated Lisa Lynch. Weisheit and Lisa lived together along with Lisa’s two children, eight-year-old Alyssa and five-year-old Caleb, in a house on Fischer Road in Evansville. Lisa, who was pregnant with Weisheit’s child, worked nights. Weisheit was in charge of Alyssa and Caleb when Lisa worked.

In the early morning hours of April 10, 2010, the German Township Volunteer Fire Department was dispatched to a fire at Weisheit and Lisa’s rural home. Lisa was at work at the time, and Weisheit was in charge of the children. When the deputy fire chief arrived at 3:53 a.m., the house was fully engulfed in flames and had been burning for awhile. Weisheit’s vehicle was missing, and the whereabouts of the children were unknown.

Additional fire departments were summoned because of the size of the fire. When the fire was finally under control around 8:00 a.m., the remains of five-year-old Caleb were found lying face down on a burned mattress; he had been hogtied with duct tape and had a washcloth, which had blood on it, duct-taped in his mouth. In addition, at least two road flares were found on the mattress near Caleb’s body. Later, during the autopsy, a burned road flare was found in Caleb’s underwear. After calling in a cadaver dog, around 3:00 p.m., eight-year-old Alyssa’s remains were discovered in the fetal position in a bedroom closet The cause of death for both children was respiratory arrest due to asphyxia from the inhalation of soot. Def. Ex. 1, 2 (Ex. Vol. II).

Deputy State Fire Marshal Clayton Kinder arrived on the scene around noon. He observed flares “in the area of [Caleb],” “[u]nderneath or adjacent to where [Caleb] was located.” Tr. p. 351, 353. Although the origin and source of the fire were never determined and accelerants were not found, based on the flares Kinder concluded that the fire was “incendiary,” which means “a fire that’s set intentionally under circumstances that the person knows the fire should not be set.” Id. at 364.

Before the children’s bodies were found, the police tried to contact Weisheit several times through OnStar; Weisheit responded but refused to speak with Lisa. OnStar, however, was able to track Weisheit’s location. Around 5:00 a.m., police officers in Boone County, Kentucky, were alerted by dispatch to locate a yellow Camaro driven by Weisheit. The officers located Weisheit on Interstate 71 and tried to stop him. Weisheit accelerated onto nearby Interstate 75, and a high-speed pursuit began. The pursuit went through a number of small towns, and their units became involved in the pursuit, too. Around 7:30 a.m., the pursuit ended in Covington, Kentucky, when stop sticks disabled Weisheit’s car. Weisheit then jumped out of his car while it was still moving, charged at the officers, asked them to kill him, and threw a hunting knife at an officer’s head. At this point, Weisheit was tased and fell to the ground. During the fall, Weisheit hit his head on the pavement. Weisheit was transported to St. Elizabeth Hospital in Florence, Kentucky, and was later transferred to University of Cincinnati Hospital. Weisheit, who suffered a bruise to the front part of his brain with some bleeding, spent one night at University of Cincinnati Hospital and was released. According to the State’s expert, Weisheit had a grade I concussion, which is the mildest grade. Id. at 38.

Inside Weisheit’s car, the police found duct tape that matched the duct tape used on Caleb. In fact, lab testing showed that the tear lines from the duct-tape roll and the duct tape on Caleb matched. In addition, Weisheit had $4000 in $100 bills and several packed suitcases.

While Weisheit was in the hospital in Kentucky waiting transfer to University of Cincinnati Hospital, detectives from the Vanderburgh County Sheriffs Department arrived, read Weisheit his Miranda rights, and interviewed him. When the detectives spoke to Weisheit about the police pursuit, he would engage; however, Weisheit became disengaged when they asked him about what happened in Evansville. During the interview, Weisheit was aware that he was in the hospital because he “got tased and ... fell backwards and hit [his] head.” State’s Ex. 1A, p. 3 (Ex. Vol. I). He explained that he was provoking the officers in the hopes that they would kill him because “[he] just didn’t care” and “just wanted to end [his] life.” Id. at 3, 20. Although Weisheit said that he did not remember what happened at his house the previous night, he did remember several things: Alyssa and Caleb went to bed around 8:00 p.m., no one else was at the house, he packed his belongings in his car, and he left the house around 3:00 a.m. without the children. Weisheit was planning on “leaving for good” because he was “[t]ired” of it all: “[t]ired of the kids, tired of the job, tired of the wife, tired of all the bullshit.” Id. at 10, 15. He said he did not take Alyssa and Caleb with him because “[he] didn’t want um.” Id. at 10. When asked how he set the house on fire, Weisheit answered “I don’t know.” Id. at 8-9. Weisheit requested an attorney about twenty minutes into the interview, at which point the interview ceased.

The police later learned that in the weeks leading up to the fire, Weisheit stopped paying his bills, even though he always paid his bills on time, and quit his steady job. In addition, Weisheit had an engagement ring for Lisa in layaway. Weisheit, however, asked the store if he could get his $700 back because he was going to Brazil and needed the money. The police also learned that Weisheit had denied to people that he was the father of Lisa’s unborn child; subsequent DNA tests, however, proved that Weisheit was in fact the father.

On April 12, 2010, the State charged Weisheit with two counts of murder and one count of Class A felony arson. No bail was set. The State later filed an additional count charging Weisheit with the death penalty. Appellant’s App. p. 3-4. Weish-eit sought a change of venue, which the trial court granted, and the case was transferred from Vanderburgh County to Clark County.

Weisheit has filed numerous motions in his capital case. Specifically, Weisheit filed a motion to suppress the flares, which the trial court denied. We recently denied Weisheit’s petition to accept interlocutory appeal of that order. Weisheit v. State, No. 10A01-1203-CR-112 (Ind.Ct.App. Apr. 9, 2012). Weisheit also filed a motion to suppress the statements he made to the detectives at St. Elizabeth Hospital in Kentucky, which the trial court also denied. Appellant’s App. p. 126-34. Weish-eit, however, did not seek interlocutory appeal of that order.

In September 2011, almost one and a half years after he was charged, Weisheit requested to be released on bail because “the State’s evidence of the crimes charged is not strong and the proof of allegations is not evident.” Id. at 141. The State opposed bail. The trial court held a hearing in December 2011, at which numerous witnesses testified and exhibits were admitted. In January 2012, the trial court entered findings of fact and conclusions of law denying bail. The trial court carefully delineated the facts and found that Weisheit “offered no evidence that would indicate a lack of culpability for any of the crimes charged in this case” and Weish-eit’s “flight from the scene of the crime is some evidence of his culpability and creates a presumption of his guilt under the law.” Id. at 171. Accordingly, the court concluded that “the proof is evident and the presumption of guilt is strong such that bail for [Weisheit] should be denied.” Id. at 172.

Weisheit now appeals the denial of bail. See Bradley v. State, 649 N.E.2d 100, 106 (Ind.1995) (“The denial of bail is deemed a final judgment appealable immediately, without waiting for the final judgment following trial.”), reh’g denied. According to the Odyssey Case Management System, Weisheit’s death-penalty trial is currently scheduled to begin August 6, 2012.

Discussion and Decision

Weisheit contends that the trial court erred in denying him bail. When reviewing a trial court’s denial of bail in a murder case, we reverse only for an abuse of discretion. Shuai v. State, 966 N.E.2d 619, 624 (Ind.Ct.App.2012), trans. denied. A decision is an abuse of discretion when it “is clearly against the logic and effect of the facts and circumstances.” Id.

Article 1, Section 17 of the Indiana Constitution recognizes the right to bail: “Offenses, other than murder and treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the presumption is strong.” Indiana Code section 35-33-8-2(a) echoes this constitutional provision: “Murder is not bailable when the proof is evident or the presumption strong. In all other cases, offenses are bailable.” Thus, in a murder case, the presumption is against the right to be admitted to bail. Shuai, 966 N.E.2d at 623; Bozovichar v. State, 230 Ind. 358, 366, 103 N.E.2d 680, 683 (1952). Accordingly, “[a] person charged with murder has the burden of proof that he should be admitted to bail.” Ind.Code § 35 — 33—8—2(b); see also Phillips v. State, 550 N.E.2d 1290, 1294 (Ind.1990) (“In a murder case, the presumption is against the right to be admitted to bail, and the burden is on the accused to show that the proof is not evident nor the presumption of his guilt strong.”), reh’g denied; Bozoviehar, 103 N.E.2d at 683 (“The burden is on the [accused] to show that the proof is not evident or the presumption of guilt [is not] strong.”).

Our Supreme Court has explained the rationale behind this rule. The purpose of bail is to ensure the presence of the accused at trial, and the factors to be considered in setting the amount of bail are the nature of the offense, the possible penalty that could attach, the likelihood of the accused appearing at trial, and the financial position of the accused. Phillips, 550 N.E.2d at 1294. Murder is the most serious charge that can be lodged by the State against an individual and carries with it the possibility of a death sentence. Id. at 1294-95; see also Ind.Code § 35-50-2-3. Because of the seriousness of the charge and the possible penal consequences, there is a presumption that no amount of money will be sufficient to secure the accused’s presence at trial. Phillips, 550 N.E.2d at 1295.

Here, we have a capital case involving the murder of two children and a defendant who has already fled the jurisdiction once, with plans of making it as far away as Brazil before OnStar gave away his location. This case perfectly demonstrates the valid interests behind this well-established rule. The record shows that Weish-eit and the children were alone in the house until he left at 3:00 a.m. When the deputy fire chief arrived at 3:53 a.m., the house was fully engulfed in flames. When the fire scene was investigated, Caleb’s body was found lying face down on a burned mattress hogtied with duct tape and had a washcloth duct-taped in his mouth. Alyssa’s body was later found in a bedroom closet. Although the cause of the fire was never determined, road flares were found on the mattress near Caleb’s body and in his underwear. Based on the flares, Deputy State Fire Marshal Kinder concluded that the fire was incendiary, or intentionally set.

Before the children’s bodies were found, the police tried to contact Weisheit through OnStar in an effort to locate the children. OnStar made contact, but Weisheit refused to speak with Lisa. Through the help of OnStar, Weisheit was located in Kentucky, and a high-speed chase ensued. When the chase finally ended, Weisheit jumped out of his moving car, yelled at the officers to kill him, and threw a hunting knife at an officer’s head. The police found in Weisheit’s car a roll of duct tape that matched the duct tape used on Caleb as well as several packed suitcases. Weisheit also had $4000 in cash. During the interview with Vanderburgh County detectives, although Weisheit claimed not to remember much about the night before, he did say some things that were incriminating. When asked how he set the house on fire, Weisheit answered, “I don’t know.” State’s Ex. 1A, p. 8-9 (Ex. Vol. I). Weisheit told the detectives that he was planning on “leaving for good” because he was “[t]ired” of it all: “[t]ired of the kids, tired of the job, tired of the wife, tired of all the bullshit.” Id. at 10,15. He said he did not take the children with him because “[he] didn’t want um.” Id. at 10.

The police later learned that Weisheit had inquired about selling back Lisa’s engagement ring because he was going to Brazil and needed the money. In addition, Weisheit had recently quit his job and stopped paying bills, which was uncharacteristic of him. The police also learned that Weisheit had denied to people that he was the father of Lisa’s unborn child; subsequent DNA tests, however, proved that Weisheit was in fact the father.

At the bail hearing, Detective Kerri Blessinger, the lead investigator in this case, aptly summarized the evidence establishing that Weisheit murdered the children:

More the totality of circumstances during the day of the investigation, you know. Obviously Caleb being bound, gagged and left, the house was fully engulfed upon the fire department’s arrival. There was another child found in the home. And we were unable to locate Jeff Weisheit at the time, who was caring for the children.... [W]hen [flares are] found underneath the child and the house is on fire and the flares are under the baby, then there is that.... [Weisheit] was the last person known with the children. He couldn’t be located the night of the fire. You know, it was his responsibility to care for those children. You know, he ran from police, he was located in another state. There was a series of circumstances that would lead you to believe that he is the one that committed this crime.
⅜ ⅜ ⅜ ⅝ ⅜ ⅜
[A]fter [Weisheit] was located out of state after fleeing from police in a very high speed chase, the roll of duct tape that was found in his car was later confirmed to match that that was taken off the mouth of the baby.

Tr. p. 372-78, 374.

After a bail hearing in which five witnesses testified and nearly 100 exhibits were admitted, the trial court concluded that the proof was evident and the presumption was strong that Weisheit killed Alyssa and Caleb in the fire. Even though many questions remain, we agree with the trial court that Weisheit has failed to meet his burden of proof. Accordingly, the trial court did not abuse its discretion in denying Weisheit bail.

Affirmed.

CRONE, J., and BRADFORD, J., concur.

      . According to OnStar's website:
      Built into more than 30 GM models, OnStar keeps you safely connected while in your vehicle. With OnStar, you’ll enjoy services like Automatic Crash Response, Navigation, Roadside Assistance and Hands-Free Calling.
      OnStar, liveOn, https://www.onstar.com/web/ portal/landing (last visited June 21, 2012).

      .Weisheit appears to argue on appeal that the trial court’s findings and conclusions are faulty because they are similar to the State's proposed findings and conclusions. Even if the trial court's findings and conclusion were verbatim to the State’s proposed findings and conclusions, which they are not, see Appellant's App. p. 164-67, our Supreme Court has stated that although it does not encourage the wholesale adoption of findings and conclusions of either party, it declines to find bias solely on that basis. Pruitt v. State, 903 N.E.2d 899, 940 (Ind.2009), reh'g denied, 907 N.E.2d 973 (Ind.2009).
      Weisheit also makes a challenge to Finding No. 7, which states:
      The Accused produced evidence that would demonstrate that the fire had been going for a significant time before fire agencies arrived at the scene and that the Accused had engaged in flight to leave the scene of the fire.
      Appellant’s App. p. 170. We, however, find that the evidence supports this finding. Weisheit also argues that the fact that he had a large amount of cash has no relevance to the crimes charged. We disagree. A large amount of cash is evidence of flight.

      . Weisheit also argues that he is entitled to a jury instruction on circumstantial evidence. We do not address this issue because it is not properly before us.

      . Weisheit asks us to apply a de novo standard of review. Appellant’s Br. p. 15. But because the case law is clear, we apply an abuse-of-discretion standard.

      . There is some question as to what the burden of proof is, with each side advocating a different test. See Appellee's Br. p. 8 (probable-cause standard); Appellant’s Reply Br. p. 3 (clear and convincing evidence). Given the strength of the evidence in this case, we do not need to resolve this question.


author: BAKER, Judge.

text:
    Julie WINSLOW, Appellant-Respondent, v. Larry D. FIFER, Appellee-Petitioner.
    No. 84A04-1109-DR-518.
    Court of Appeals of Indiana.
    July 3, 2012.

      James R. Recker, Indianapolis, IN, Attorney for Appellant.
    Mary Lou Reynolds, Edward A. McGlone, Terre Haute, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

Julie Winslow (Mother) and Larry Fifer (Father) are the parents of two academically gifted daughters, twenty-one year-old J.F., who attends Indiana State University and nineteen-year-old A.F., who attends Purdue University. Both girls have received scholarships which have left the balance of their tuition and other fees to less than $2,000 per year. Nevertheless, Mother, who took A.F. to Harry Potter’s World at Universal Studios in Florida for a week to celebrate her SAT scores, refused to comply with a court order requiring her to reimburse Father $1500 for her oldest daughter’s college tuition for the 2010-2011 academic year. Mother refused to do so because she did not know where her oldest daughter was living and apparently did not pick up the phone to contact Father or their daughter to ask. Had she done so, Mother would have learned that Father required J.F. to live at home because of a prior court order. After sending Mother J.F.’s class list, grades, and an itemized list of expenses, and after asking her to reimburse him $1,500 for the academic year with no response, Father eventually filed a contempt action against Mother seeking $750 in attorney fees and asked the trial court to order her to pay a proportionate share of A.F.’s college expenses.

The trial court found Mother in contempt for failing to reimburse Father $1,455.48 for J.F.’s college expenses for the 2010-11 academic year and ordered her to pay said sum within twenty days of the date of the trial court’s order. The trial court further advised Mother that there were several sanctions available to it and that it was electing to require Mother to pay Father’s attorney fees. Lastly, the trial court ordered Mother to pay the same percentage of A.F.’s educational expenses as she had been ordered to pay for J.F.’s education expenses. The trial court noted that A.F. was potentially saving her parents $90,000 over the following four years.

Mother now appeals the trial court’s judgment. Specifically, Mother contends that the trial court erred in 1) computing her proportionate share of educational expenses, 2) holding her in contempt, and 3) ordering her to pay Father’s attorney $750 as a contempt remedy. Finding no error, we affirm the judgment of the trial court.

FACTS

Mother and Father’s marriage was dissolved in February 2002. They have two daughters, J.F., born on March 2, 1991, and A.F., born on May 5, 1993. In February 2009, the trial court held a hearing on Mother’s Petition to Modify Child Support and Declare [J.F.] an Adult and Father’s Petition for Post-High School Educational Assistance for Minor Children and to Modify Child Support. In March 2009, the trial court denied Mother’s request to emancipate J.F. Rather, the trial court concluded that J.F. had the aptitude and ability to attend Indiana State University (ISU) and that an order for post secondary educational expenses was proper. Specifically, the trial court ordered J.F. to pay one-third of her college expenses. The trial court further ordered both parents to divide the remaining two-thirds of J.F.’s educational expenses, with Father to pay 62.81% and Mother to pay 37.19%. Father apparently agreed to pay the parents’ two-thirds share to the university, and Mother was ordered to then reimburse Father for her 37.19% contribution.

In July 2010, the parties mediated a modification of child support. In August 2010, the trial court entered an order approving a mediated modification of child support. Specifically, the mediated modification agreement provided that J.F. was emancipated for the purposes of weekly child support, but that the parties would still be obligated to pay J.F.’s college expenses pursuant to the trial court’s March 2009 order. Mother was also still obligated to pay $45.00 per week in child support for her younger daughter, A.F.

In the fall of 2010, J.F. registered for classes at ISU, where she received an Honors Scholarship. The total cost for her first semester, including the scholarship, was $2,227. Father paid for parents’ share of the expenses and requested that Mother reimburse him $801.72 pursuant to the trial court’s March 2009 order. Father provided Mother with supporting documentation, including a list of J.F.’s courses and receipts for all payments. Mother did not respond to Father’s request.

In December 2010, Father sent another written request for reimbursement to Mother. Father also sent Mother a copy of J.F.’s fall semester grades and advised Mother that J.F. had maintained a 3.64 grade point average. In addition, Father sent Mother a copy of J.F.’s spring 2011 courses. Father asked Mother if there was a reason that she was not paying him, but Mother did not reply.

In February 2011, Father asked Mother when he could expect to receive payment for J.F.’s fall 2010 college expenses. He also included an itemized list of J.F.’s spring 2011 college expenses, and asked Mother to reimburse him $653.76 for the spring semester. Father sought a total reimbursement of $1455.48 for J.F.’s first year at ISU. Again, Mother did not reply.

When Mother failed to respond to Father’s requests for payment, Father filed in May 2011 an “Affidavit for Rule to Show Cause” wherein he asked the trial court to enter an order requiring Mother to appear and show cause why she should not be punished for contempt of court for failing to comply with the trial court’s March 2009 order. Father also asked the court to order Mother to pay the $750.00 in legal fees he incurred for the prosecution of the Affidavit for Rule to Show Cause. In addition, Father filed a “Petition for Post Secondary Educational Expenses” for A.F., who was graduating from high school with honors. Father asked the trial court to order Mother to pay the same percentage of A.F.’s educational expenses as she had been ordered to pay for J.F.’s educational expenses.

A hearing on the petition and affidavit revealed that Father works at a steel factory in Terre Haute where he earns $120,000 per year, and Mother works for an engineering firm at the University of Cincinnati where she earns $71,000 per year. The evidence further revealed that J.F. signed a lease to rent an apartment with her boyfriend in April 2010. J.F. explained that she signed the lease because the apartment was only $410 per month, which was a “ridiculously great price,” and she and her boyfriend did not want to lose it. Tr. p. 45. When J.F. told Father what she had done, Father told her that she was not allowed to move into the apartment until he discussed it with his lawyer because he was under a court order that included child support. J.F.’s boyfriend moved into the apartment, and J.F. lived at Father’s house until the trial court issued its order emancipating J.F. for the purpose of weekly child support.

Testimony at the hearing further revealed that A.F. graduated from West Vigo High School as class valedictorian in 2011, missed only one math question and two English questions on the SAT, and planned to study engineering at Purdue University. She received substantial and prestigious scholarships, including a $10,000 Trustee Scholarship, a $10,000 Stamps Scholarship, and a $2500 National Merit Scholarship for her freshman year. A.F. testified that the scholarships did not cover the entire cost of her freshman year, and there would be an additional cost for orientation, chemistry lab fees, and the engineering program.

Mother testified when she received the bill from Father for J.F.’s educational expenses, she sent it to her attorney because she did not see room and board fees on the bill. Mother did not believe that J.F. was living with Father. According to Mother, she did not reimburse Father for J.F.’s educational expenses because she did not know where J.F. was living. She apparently did not telephone Father to see where J.F. was living because she has not talked to Father in five years. Mother also apparently did not telephone J.F. because there is no evidence in the transcript that Mother maintains any type of contract with her oldest daughter. Mother further testified that she recognized A.F.’s SAT results with the “trip of a lifetime,” which was a one-week stay at Harry Potter World at Universal Studios in Florida during the 2010 holidays. Mother also attempted to introduce into evidence a photograph of Mother and A.F. together in the Bahamas.

Following the hearing, the trial court issued an order finding Mother in contempt for failing to pay her proportionate share of J.F.’s educational expenses, which was $801.72 for the fall 2010 semester at ISU and $653.76 for the spring 2011 semester, for a total of $1,455.48. The trial court ordered Mother to pay this sum to Father within twenty days of the date of the order. The court also ordered Mother to pay $750 of Father’s attorney fees as a contempt remedy. Lastly, the trial court found that A.F. was planning to attend Purdue University and that her $24,000 per year tuition and room and board would only cost $1,500 because of A.F.’s exceptional academic achievements and scholarships. The court ordered Mother to pay $575.70 of A.F.’s fall 2011 tuition, and Father to pay $972.30. Mother appeals.

DISCUSSION AND DECISION

I. Computing the Proportionate Share of Educational Expenses

Mother first argues that the trial court erred in computing her proportionate share of educational expenses for her daughters. In reviewing orders for apportionment of college expenses, we do not weigh the evidence or determine credibility. Warner v. Warner, 725 N.E.2d 975, 978 (Ind.Ct.App.2000). Rather, we consider only the evidence most favorable to the judgment. Id. We will affirm the trial court unless its order is clearly erroneous. Id. The decision is clearly erroneous if it is clearly against the logic and effect of the facts and circumstances which were before the trial court. Id.

Pursuant to Indiana Code section 31-16-6-2, the trial court has the authority and discretion to award post-secondary educational expenses and to determine the amount of such an award. See id. The trial court should consider post-secondary education to be a group effort and should weigh the ability of each parent to contribute to payment of the expense as well as the ability of the student to pay some part. Id. The trial court must determine what constitutes educational expenses, and the guidelines state that this will generally constitute tuition, books, lab fees, supplies, student activity fees, and the like. Id. Room and board are also included when the student lives away from the custodial parent during the school year. Id.

Further, a “rough proportionality” has been required in the apportionment of college expenses between parents and children. Id. A requirement of rough proportionality is not a requirement of precise parity, but deviations from rough proportionality require a finding that such an apportionment would be unjust. Id. Absent such specific findings, we have found that an apportionment of college expenses which was not roughly proportionate to parental resources was clearly erroneous. Id.

Here, Mother specifically argues that the trial court erred in computing her proportionate share of educational expenses for her daughters because it “improperly refused to consider the effect of educational tax credits obtained by Father .... ” Appellant’s Br. p. 3. However, Mother offered no evidence or offer of proof at the hearing concerning an educational tax credit benefiting Father. Because Mother did not make an offer of proof, this issue was not properly preserved and is waived. Dowdell v. State, 720 N.E.2d 1146, 1150 (Ind.1999) (concluding that the failure to make an offer of proof resulted in waiver of the alleged error).

Waiver notwithstanding, we note that a trial court may consider the consequences of an educational tax credit if such evidence is tendered. In this case, however, even if Mother had tendered such evidence, the credit might have been de minimis based on her daughters’ minimal educational expenses. Under such circumstances, the trial court would not have abused its discretion in failing to consider it.

Mother also argues that the trial court erred in computing her share of educational expenses because the court placed no limitations on A.F. For example, according to Mother, the trial court did not place a limit on the number of semesters A.F. may attend school at her parents’ expense. Further, Mother points out that there is no mention of the level of academic performance required by A.F. to remain eligible for her parents’ assistance. However, as Father points out, Mother did not raise these limitations at the hearing. This issue is therefore waived as well. See Benton Cnty. Remonstrators v. Bd. of Zoning Appeals of Benton Cnty., 905 N.E.2d 1090, 1096 (Ind.Ct.App.2009) (holding that a party waives appellate review of an issue unless the party raises the issue before the trial court). Further, we agree with Father that the trial court may have found such limitations unnecessary where A.G. was the West Vigo High School class valedictorian, missed only one math question and two English questions on the SAT, and received three scholarships to Purdue. The trial court did not err in computing Mother’s proportionate share of educational expenses for her daughter.

II. Contempt

Mother also argues that the trial court erred in holding her in contempt. The determination of whether a party is in contempt of court is a matter within the sound discretion of the trial court. Jones v. State, 847 N.E.2d 190, 199 (Ind.Ct.App.2006). We will reverse the trial court’s determination only if the court has abused its discretion. Id. A court has abused its discretion when its decision is against the logic and effect of the facts and circumstances before the court or is contrary to law. Id.

Indirect contempt, or civil contempt, is the willful disobedience of any lawfully entered court order of which the offender has notice. City of Gary v. Major, 822 N.E.2d 165, 169 (Ind.2005). The objective of a contempt citation is not to punish but to coerce action for the benefit of the aggrieved party. Mosser v. Mosser, 729 N.E.2d 197, 199-200 (Ind.Ct.App.2000). Thus, any type of remedy in civil contempt proceedings must be coercive or remedial in nature. Id. at 200.

Here, the trial court ordered Mother to reimburse Father her proportionate share of J.F.’s educational expenses and Mother failed to comply with the order. She does not argue that the order was not lawful or that she had no notice of it. Rather, she contends that she disregarded it because Father enjoyed a tax credit and she did not know where J.F. was living. These are not valid reasons for disregarding the trial court’s order. In short, the trial court did not abuse its discretion in finding Mother in contempt.

III. Attorney Fees

Lastly, Mother argues that the trial court erred in ordering her to pay $750 of Father’s attorney fees as a remedy for her contempt. The trial court has inherent authority to award attorney fees for civil contempt. Crowl v. Benryhill, 678 N.E.2d 828, 831 (Ind.Ct.App.1997).

Mother first contends that the finding of contempt was not supported by the evidence and the subsequent award of attorney fees for that contempt was an abuse of discretion. This argument fails, however, because we affirmed the finding of contempt.

Mother further contends that the trial court erred because it awarded “the entire cost of the [attorney] fees for all matters heard at the hearing of August 5, 2011 to Father without proportioning [attorney] fees which were particular to the contempt proceeding only.” Appellant’s Br. p. 8. However, our review of the evidence reveals that in his Affidavit for Rule to Show Cause, Father averred that “due to the willful failure and refusal of [Mother] to comply with the terms of the Court’s Order of March ... 1999 ... Father has incurred fees of $750.00 for the prosecution of this Affidavit for Rule to Show Cause, in order to require the [Mother] to comply with the Court’s Order as pertains to the payment of post secondary educational expenses.... ” Appellant’s App. p. 53. Clearly, the $750 was proportioned to the contempt proceeding. The trial court did not abuse its discretion in ordering Mother to pay $750 of Father’s attorney fees.

Mother and Father have been blessed with two daughters who excel academically. Indeed, both have received scholarships such that their college expenses are minimal. Nevertheless, although Mother has the financial means, she has chosen litigation over paying her proportionate share of these minimal expenses or even communicating with her children and Father. No one wins in such situations, and we strongly recommend that Mother consider this in the future.

The judgment of the trial court is affirmed.

KIRSCH, J., and BROWN, J., concur.


text:
    In the Matter of Sarah L. NAGY, Respondent.
    Nos. 49S00-1202-DI-104, 29S00-1205-DI-247, 29S00-1205-DI-280.
    Supreme Court of Indiana.
    June 28, 2012.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW DUE TO DISABILITY AND DISMISSING SHOW CAUSE PROCEEDINGS WITHOUT PREJUDICE

Pursuant to Indiana Admission and Discipline Rule 23, Section 25, the Disciplinary Commission has filed a “Verified Petition to Determine Disability” in Cause No. 29S00-1205-DI-280, requesting this Court to suspend Respondent from the practice of law in this state due to physical disability. Along with that petition, Respondent has submitted an “Affidavit of Consent to Disability Suspension.” The Commission also requests that two show cause proceedings for noncooperation with the Commission pending against Respondent, Cause Nos. 49S0O-12O2-DI-104 and 29S00-1205-DI-247, be dismissed without prejudice if the petition to determine disability is granted.

Being duly advised, the Court GRANTS the Commission’s petition and ORDERS that Respondent be suspended from the practice of law in this state, effective immediately, due to disability, pursuant to Admission and Discipline Rule 23(25). Respondent may petition for reinstatement upon termination of the disability pursuant to Admission and Discipline Rule 23(4) and (18). The Court further ORDERS that Cause Nos. 49S00-1202-DI-104 and 29S00-1205-DI-247 be dismissed without prejudice.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.