author: SULLIVAN, Justice.

text:
    Sharon GILL, on her own behalf and on behalf of the Estate of Gale Gill, Appellant (Plaintiff below), v. EVANSVILLE SHEET METAL WORKS, INC., Appellee (Defendant below).
    No. 49S05-1111-CV-672.
    Supreme Court of Indiana.
    June 25, 2012.

      Linda George, W. Russell Sipes, Todd Barnes, Michael L. Schultz, Kathleen A. Farinas and Ashleigh M. Resetarits, Indianapolis, IN, Attorneys for Appellant.
    Ross E. Rudolph, James B. Godbold, Joseph H. Langerak IV, Evansville, IN, Attorneys for Appellee.
   On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-0912-CV-699

SULLIVAN, Justice.

The plaintiff claims that her husband’s death was caused by the defendant’s negligence in installing or removing asbestos-containing materials. The trial court ruled for the defendant because the claim had not been brought within the time Indiana law requires for a claim arising from the construction of an “improvement to real property.” We reverse the trial court because there is a genuine issue of material fact as to whether the defendant’s work constituted an “improvement to real property,” as that phrase is commonly understood.

Background

Gale Gill was employed from at least 1963 until 1986 by Aluminum Company of America (“Alcoa”) in Newburgh, Indiana, where he was a “pot room worker” responsible for operating, repairing, and maintaining smelting pots. Over the course of his employment, Gale allegedly was exposed to and inhaled asbestos fibers while asbestos-containing products were being handled and used by others. He was diagnosed with an asbestos-related disease in 2004 and died of lung cancer on May 4, 2005.

Evansville Sheet Metal Works, Inc. (“ESMW”), allegedly worked as a contractor for Alcoa at “a common work site with [Gale] Gill where materials containing asbestos were present and/or used.” Appellant’s App. 95. It is unclear exactly when this alleged work occurred, but it is undisputed that any ESMW project through which Gale might have been exposed to asbestos was substantially completed by 1989.

On May 4, 2007, Sharon Gill filed a complaint in Marion Superior Court against ESMW and eighteen other defendants, asserting wrongful-death claims based on several legal theories. As to ESMW, Gill sought damages on theories of products liability and contractor negligence.

The complaint was placed on the Marion County Mass Tort Asbestos Litigation Docket, thereby triggering specific local rules applicable in asbestos cases. See LR49-TR01-ASB Rule 700. The case was stayed under the local rules because it was neither exigent nor set for trial. LR49-TR40 Rule 711(H). Hardly any activity occurs when a case is stayed. But an exception to this principle is an “initial summary judgment motion” under Local Rule 714, which gives a party in a stayed case a limited opportunity to seek summary judgment prior to engaging in any discovery. LR49-TR56 Rule 714.

ESMW sought initial summary judgment on grounds that Gill’s product-liability and contractor-negligence claims were barred by the product-liability statute of repose and the construction statute of repose (“CSoR”), respectively. The trial court granted ESMWs motion as to the product-liability claim, but it denied the motion as to the contractor-negligence claim because there was a genuine issue of material fact as to whether the CSoR applied.

A few months later, ESMW filed a renewed initial summary judgment motion, again arguing that the contractor-negligence claim was barred by the CSoR. Gill responded that ESMW had failed to demonstrate that it had been involved in the construction of an “improvement to real property,” as required by the statute. In turn, ESMW maintained that the complaint established this requirement because Gill had alleged that ESMW had “applied or removed asbestos containing products which caused injury to [Gale] Gill.” Appellant’s App. 25. The trial court agreed with ESMW and held that the application or removal of asbestos-containing products or asbestos-insulated equipment by a contractor is an improvement to real property.

Gill appealed the trial court’s ruling that the CSoR barred her contractor-negligence claim, and the Court of Appeals affirmed. Gill v. Evansville Sheet Metal Works, Inc., 940 N.E.2d 328, 330 (Ind.Ct.App.2010). But, unlike the trial court, the panel declined to resolve whether ESMW’s work constituted an improvement to real property and held that, “regardless whether there was an improvement to real estate, [Gill] brought her claim outside the ten year period stipulated in the [CSoR] and therefore, her claim is barred.” Id. at 334.

Gill sought, and we granted, transfer, Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 2012 WL 2384095 (Ind.2011) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).

Discussion

We are asked to consider whether summary judgment for ESMW on Gill’s negligence claim was proper. In doing so, we face the same issues as the trial court and follow the same process. Owens Coming Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 908 (Ind.2001). The movant bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind.2009). Summary judgment is improper if the movant fails to carry this burden. See Klinker v. First Merchants Bank, N.A., 964 N.E.2d 190, 197 (Ind.2012). But if the movant succeeds, then the nonmoving party must come forward with evidence establishing the existence of a genuine issue of material fact. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.1994).

I

Resolution of this appeal hinges on the scope and application of Indiana Code section 32-30-1-5, the CSoR. This statute provides a ten-year period after which those involved in certain activities related to the construction of an improvement to real property are immune from claims arising from construction deficiencies. Specifically, the version of the CSoR applicable to this dispute provides as follows:

An action to recover damages, whether based upon contract, tort, nuisance, or another legal remedy, for:
(1) a deficiency or an alleged deficiency in the design, planning, supervision, construction, or observation of construction of an improvement to real property;
(2) an injury to real or personal property arising out of a deficiency; or
(3) an injury or wrongful death of a person arising out of a deficiency;
may not be brought against any person who designs, plans, supervises, or observes the construction of or constructs an improvement to the real property unless the action is commenced within the earlier of ten (10) years after the date of substantial completion of the improvement or twelve (12) years after the completion and submission of plans and specifications to the owner if the action is for a deficiency in the design of the improvement.

Ind.Code § 32-30-1-5 (2004).

Parsing the statute’s plain language indicates that a defendant is entitled to immunity under the statute only if four criteria are established. First, there must have been construction of an “improvement to real property.” Second, the claimant must be seeking damages for a deficiency in the design, planning, supervision, construction, or observation of construction of such improvement or an injury arising therefrom. Cf. South Dearborn Sch. Bldg. Corp. v. Duerstock, 612 N.E.2d 203, 208-09 (Ind.Ct.App.1993) (contractual indemnity claim not barred because damages would be limited to matters such as defending suit and not costs of compensating the injured plaintiff). Third, the defendant must have performed a covered activity, whether it was the designing, planning, supervision, or observation of the improvement’s construction or its actual construction. Finally, the action must have been commenced more than ten years after the date of “substantial completion” of the improvement. See Ind.Code § 32-30-1-4 (2008) (defining “date of substantial completion”). The parties dispute only whether ESMW made a prima facie showing that its work at Alcoa constituted an “improvement to real property.”

The meaning of the term “improvement to real property” as used in the CSoR is a matter of first impression for this Court. See Pentony v. Valparaiso Dep’t of Parks & Recreation, — F.Supp.2d -, No. 2:09-CV-363-JVB, 2012 WL 1095220, at *3 (N.D.Ind. Mar.29, 2012) (Van Bokkelen, J.) (“The Court has found no Indiana cases defining the term ‘improvement to real property’ as used in Indiana Code § 32-30-1-5.”). The statute itself does not define the term. When a statute employs a word without defining it, courts generally should apply the word’s plain, ordinary, and usual meaning, unless to do so would be contrary to the Legislature’s intent; but technical words and phrases should be given their technical legal definitions. See Ind.Code § 1 — 1—4—1(1) (2005). Compare Ind. Dep’t of State Revenue v. Trump Ind., Inc., 814 N.E.2d 1017, 1021 (Ind.2004) (applying plain and ordinary meaning of “tangible personal property” for purposes of sales and use tax), with George v. Nat’l Collegiate Athletic Ass’n, 945 N.E.2d 150, 156-57 (Ind.2011) (applying well-established legal definition of “lottery” instead of broader common meaning). We first examine the legislative intent underlying the CSoR and then examine various meanings that have been attributed to the term “improvement to real property.”

A

Building statutes of repose similar to the CSoR are commonplace. In point of fact, 47 states and the District of Columbia have adopted special statutes of repose applicable to claims arising from deficien-

cies in the construction of improvements to real property. See Construction and Design Contracts. 1-3 Construction L. Online (MB) P 3.11 ¶ [2][a] (2012). As a result, the genesis of these statutes has been well-documented.

The liability of building professionals, such as architects, engineers, and contractors, was strictly limited under the English common law adopted by early American courts. They were liable only to those with whom they stood in privity of contract, and their liability terminated when the improvement was completed and accepted by the owner. E.g., Bems Constr. Co. v. Miller, 491 N.E.2d 565, 569-70 (Ind.Ct.App.1986), summarily aff'd, 516 N.E.2d 1053 (Ind.1987); Krull v. Thermogas Co., 522 N.W.2d 607, 610 (Iowa 1994); Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn.1977).

In MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) (Cardozo, J.), the New York Court of Appeals abolished the privity-of-eontract defense in product-liability actions. Judge Cardozo’s MacPherson opinion was a landmark decision, which by the mid-twentieth century had been “all but universally accepted by the American courts,” Restatement (Second) of Torts § 395 cmt. a (1965), and courts gradually extended the rule to claims arising from defects in improvements to real property, Berns Constr. Co., 491 N.E.2d at 569-70; see, e.g., Inman v. Binghamton Housing Auth., 3 N.Y.2d 137, 164 N.Y.S.2d 699, 143 N.E.2d 895, 898-99 (1957) (applying MacPherson rule in construction context); Theis v. Heuer, 264 Ind. 1, 12-13, 280 N.E.2d 300, 306 (1972) (same).

Naturally, abolition of the privity defense expanded the liability of building professionals because they could now be held liable for a third party’s injuries caused by design and construction defects. Their liability was further expanded when courts began migrating toward the discovery rule, under which the statute of limitations did not begin to run until the defect or injury was discovered or reasonably could have been discovered by the claimant. Because many defects in improvements to real property were latent, the abolition of the privity defense and the adoption of the discovery rule meant that those in the construction industry might be held liable for injuries occurring decades after the improvement had been completed and control had been relinquished to the owner. Krull, 522 N.W.2d at 610; Pac. Indem. Co., 260 N.W.2d at 554-55; see, e.g., Berns Constr. Co., 491 N.E.2d at 570 (“Cases exist where suits were brought against builders and architects as long as 50 years after completion.” (citations omitted)).

Faced with this expanded liability, during the 1960s the building industry began lobbying state legislatures to enact special statutes limiting the duration of liability for construction professionals. E.g., Krull, 522 N.W.2d at 610-11. Indiana was among 30 jurisdictions that enacted such statutes between 1964 and 1970. Rose v. Fox Pool Corp., 335 Md. 351, 643 A.2d 906, 911 & n. 3 (1994); see Act of Mar. 4, 1967, ch. 63, § 2,1967 Ind. Laws 130, 131.

B

Most legislatures have not defined the term “improvement to real property” as used in their respective building statutes of repose. But see, e.g., State Farm Fire & Cas. Co. v. Sundance Dev. Corp., 78 P.3d 995, 998 (Utah Ct.App.2003) (applying statutory definition of “improvement”). As a result, many courts have been called upon to determine both the meaning of “improvement to real property” in this context and whether a particular item or project constitutes such an improvement. Broadly speaking, two general approaches have emerged — a common-law fixture analysis and a “commonsense” analysis. E.g., Allentown Plaza Assocs. v. Suburban Propane Gas Corp., 43 Md.App. 337, 405 A.2d 326, 331 (1979).

A small number of courts have looked to the common law of fixtures to determine whether something constitutes an improvement to real property. E.g., Little v. Nat’l Servs. Indus., Inc., 79 N.C.App. 688, 340 S.E.2d 510, 513 (1986); Sonnier v. Chisholm-Ryder Co., 909 S.W.2d 475, 479 (Tex.1995); Smith v. Allen-Bradley Co., 371 F.Supp. 698, 700 (W.D.Va.1974) (applying Virginia law); see, e.g., Cherokee Carpet Mills, Inc. v. Manly Jail Works, Inc., 257 Ark. 1041, 521 S.W.2d 528, 530 (1975) (storage tank was an improvement to real property because it was a fixture); City of Dover v. Int’l Tel. & Tel. Corp., 514 A.2d 1086, 1089-90 (Del. 1986) (utility pole was an improvement because it was affixed to the land and rejecting argument that an improvement requires added value to the land). A “fixture” is a former chattel or piece of personal property that “has become a part of real estate by reason of attachment thereto.” Ochs v. Tilton, 181 Ind. 81, 84-85,103 N.E. 837, 838 (1914) (citation omitted); accord Little, 340 S.E.2d at 513. In light of this definition, the Texas Supreme Court has held that “[a]n improvement includes all additions to the freehold except for trade fixtures which can be removed without injury to the property.” Sonnier, 909 S.W.2d at 479; see also id. (“To constitute an improvement there must be a join-der of personalty with realty.”).

As a general matter, personal property becomes a fixture if the following are established: (1) either actual or constructive annexation of the article to the real property; (2) adaptation of the article to the use of the real property in general or to the part of the real property to which the article is connected; and (3) an intent by the annexing party to make the article a permanent accession to the real property. Citizens Bank of Greenfield v. Mergenthaler Linotype Co., 216 Ind. 573, 580, 25 N.E.2d 444, 447 (1940); Ochs, 181 Ind. at 85, 103 N.E. at 838; accord Little, 340 S.E.2d at 513; Sonnier, 909 S.W.2d at 479. The annexing party’s intent is the “chief test,” and the first two requirements often serve as evidence of that intent. Citizens Bank, 216 Ind. at 581, 25 N.E.2d at 448; Little, 340 S.E.2d at 513; Sonnier, 909 S.W.2d at 479. Whether a chattel has become a fixture “is a mixed question of law and fact and depends on the particular circumstances of each case.” State ex rel. Green v. Gibson Circuit Court, 246 Ind. 446, 451, 206 N.E.2d 135, 138 (1965) (citations omitted); accord Ochs, 181 Ind. at 85,103 N.E. at 838.

Most courts considering the issue have “avoided the vagaries of fixture law” and adopted a commonsense approach that looks to the ordinary or plain meaning of the phrase “improvement to real property.” Pac. Indem. Co., 260 N.W.2d at 554. These courts start with the dictionary definition of “improvement.” E.g., Hilliard v. Lummus Co., 834 F.2d 1352, 1354-56 (7th Cir.1987) (applying Illinois law); Adair v. Koppers Co., 741 F.2d 111, 113-14 (6th Cir.1984) (applying Ohio law); Van Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504, 508 (8th Cir.1983) (applying South Dakota law). Some courts look to standard dictionaries and others look to legal dictionaries, but the definitions are often similar. E.g., Brennaman v. R.M.I. Co., 70 Ohio St.3d 460, 639 N.E.2d 425, 429 (1994); Kallas Millwork Corp. v. Square D Co., 66 Wis.2d 382, 225 N.W.2d 454, 456-57 (1975).

Under these definitions, courts generally will find an improvement to real property if the following factors are established: (1) there is a permanent addition to or betterment of real property; (2) that enhances the real property’s capital value; (3) that involves the expenditure of labor or money; and (4) that is designed or intended to make the property more useful or valuable as distinguished from ordinary repairs.. E.g., Adair, 741 F.2d at 114; St. Louis v. Rockwell Graphic Sys., Inc., 153 Ill.2d 1, 178 Ill.Dec. 761, 605 N.E.2d 555, 556 (1992); St. Paul’s Evangelical Lutheran Church v. Webster City, 766 N.W.2d 796, 799-800 (Iowa 2009); Siewert v. Northern States Power Co., 793 N.W.2d 272, 287 (Minn.2011); Ebert v. South Jersey Gas Co., 157 N.J. 135, 723 A.2d 599, 601 (1999); Kohn v. Darlington Cmty. Sch., 283 Wis.2d 1, 698 N.W.2d 794, 801, 804 (2005); cf. Mullís v. Southern Co. Seros., Inc., 250 Ga. 90, 296 S.E.2d 579, 583 (1982) (considering similar factors in addition to the parties’ intent). Whether something constitutes an improvement to real property under the commonsense approach is a question of law, though its resolution is grounded in fact. E.g., Adair, 741 F.2d at 114; St. Louis, 178 Ill.Dec. 761, 605 N.E.2d at 556; Kallas Millwork Corp., 225 N.W.2d at 456.

C

We think that the commonsense approach is more persuasive than the pure fixtures approach. Again, undefined words in a statute generally are given their plain, ordinary, and usual meaning, unless it would be repugnant to the Legislature’s intent. Ind.Code § 1-1^4-1(1) (2005); George, 945 N.E.2d at 154. And there is nothing to suggest that the common definition of “improvement to real property” diverges from the legislative intent underlying the CSoR. Indeed, that a majority of courts have adopted this approach in interpreting similar repose statutes enacted for similar reasons suggests that it is consistent with the underlying legislative intent.

Additionally, we perceive several difficulties with the fixtures approach. The common law of fixtures is a highly technical and complicated area of law. Although it has been neatly packaged into a general three-part test, the rules often vary depending on the facts of the case, and courts often arrive at divergent conclusions when applying the general test to similar facts. Citizens Bank, 216 Ind. at 581, 25 N.E.2d at 448. Most importantly, inasmuch as it is a well-established legal term, the Legislature could have used “fixture” instead of “improvement to real property” had it intended for fixtures law to apply.

To be sure, the commonsense approach is not wholly free from difficulty. For example, cases inevitably will arise in which courts will be asked to define more precisely the components of the commonsense standard, such as the meaning of “permanent.” Furthermore, the manner in which courts have broken down the common definition of “improvement” may result in an unwarranted broadening of the CSoR’s scope. The Seventh Circuit pointed this out in State Farm Mutual Automobile Insurance Co. v. W.R. Grace & Co.Conn., 24 F.3d 955 (7th Cir.1994) (Posner, C.J.), while considering whether the Illinois ten-year statute of repose barred a claim against a manufacturer of an asbestos-containing fire-proofing spray, called “Mono-Kote,” that had been applied to a building. In an opinion written by then-Chief Judge Posner, the court held that the Mono-Kote spray was not an “improvement,” because

calling a spray an “improvement” would do violence to the ordinary meaning of the word when it is used in the context of construction, as well as impart a breathtaking scope to the statute. An extension to a kitchen is an improvement; the paint on the extension is not. But the Supreme Court of Illinois, whose interpretation of the statute’s meaning we are trying to predict, has defined improvement so broadly — in terms of a list of criteria such as whether “the addition was meant to be permanent or temporary” and “whether it became an integral component of the overall system,” St. Louis v. Rockwell Graphic Systems, Inc., 153 Ill.2d 1, 178 Ill.Dec. 761, 605 N.E.2d 555, 556 (1992) — as to bring the Mono-Kote sprayed onto the structural steel in State Farm’s buildings within the semantic, if not necessarily the intended, reach of the definition.

State Farm Mut. Auto. Ins. Co., 24 F.3d at 958. The court concluded that the fireproofing spray was not a “palpable improvement” and that “[n]o case extends the concept of improvement to a spray.” Id.

Despite these potential difficulties, we think that the commonsense approach best implements the Legislature’s intent. Therefore, we hold that an “improvement to real property” for purposes of the CSoR is “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.” Webster’s Third New International Dictionary 1138 (unabridged ed.1976). Put differently, an “improvement to real property” is (1) an addition to or betterment of real property; (2) that is permanent; (3) that enhances the real property’s capital value; (4) that involves the expenditure of labor or. money; (5) that is designed to make the property more useful or valuable; and (6) that is not an ordinary repair. In applying this commonsense definition, judges and lawyers should focus on these individual criteria but they should not lose sight of the fact that this is a definition grounded in commonsense. The fact that a purported improvement satisfies each of these individual criteria may not be sufficient for it to be an improvement within the meaning of the CSoR if it would do violence to the plain and ordinary meaning of the term as used in the construction context.

D

Applying this definition here, it is clear that ESMW failed to make a prima facie showing that its work at Alcoa constituted an improvement to real property. We have absolutely no evidence as to what ESMW did at Alcoa, aside from allegedly installing or removing asbestos-containing products. The record does not indicate whether or not this was done in the course of an ordinary repair. Nor does the record indicate whether it was done in the process of making a permanent addition to or betterment of real property, among other things.

Moreover, the case law reveals that not everything a contractor does constitutes an improvement to real property. See, e.g., State Farm Mut. Auto. Ins. Co., 24 F.3d at 958 (applying asbestos fire-proofing spray to building); Ciando v. Serafini, 40 Colo. App. 168, 574 P.2d 876, 877-78 (1977) (boundary survey); Morietta v. Reese Constr. Co., 347 Ill.App.3d 1077, 283 Ill. Dec. 758, 808 N.E.2d 1046, 1050 (2004) (repaving road); St. Paul’s Church, 766 N.W.2d at 800 (reconnecting sewer line); Hickman v. Carven, 366 Md. 362, 784 A.2d 31, 38-39 (2001) (grave desecration in course of developing residential subdivision); Allentown Plaza Assocs., 405 A.2d at 332 (installation of temporary gas meters); Raffel v. Perley, 14 Mass.App.Ct. 242, 437 N.E.2d 1082, 1083 (1982) (boundary survey); Pitsch v. ESE Mich., Inc., 233 Mich.App. 578, 593 N.W.2d 565, 577 (1999) (removal of underground storage tank); Brandt v. Hallwood Mgmt. Co., 560 N.W.2d 396, 400-02 (Minn.Ct.App.1997) (de-energizing electrical wires as part of demolition work); Noll by Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81, 89 (1994) (installing starting blocks at swimming pool); cf St. Louis, 605 N.E.2d at 557 (remanding because record was unclear whether printing press was -an improvement to real property). We thus agree with Gill that her allegation that ESMW was a contractor and installed or removed asbestos materials is not a sufficient basis on which to conclude that it constructed an improvement to real property.

In short, ESMW failed to make a prima facie showing that it was entitled to summary judgment on the basis of the CSoR because it designated no evidence indicating that it constructed an improvement to real property at Alcoa. Summary judgment was therefore improper.

II

We briefly address another aspect of the opinion of the Court of Appeals — its criticism of the trial court’s local rule allowing pre-discovery motions for summary judgment. Although that decision is now vacated, we think a response to this criticism is warranted to dispel any doubts that opinion may have cast on the trial court’s application of its local rules.

As noted earlier, the Marion Circuit and Superior Courts have created local rules applicable to asbestos-related tort cases. There is no question that they had the authority to do so. Indiana trial courts may establish local rules for their own governance as long as the local rules do not conflict with the rules established by this Court or by statute. Ind.Code § 34-8-1-4 (2008); T.R. 81. As a general matter, local rules are procedural and “are intended to standardize the practice within that court, to facilitate the effective flow of information, and to enable the court to rule on the merits of the case.” Meredith v. State, 679 N.E.2d 1309, 1310 (Ind.1997).

Once made, the court and all litigants subject to the local rules are bound by them. Id. at 1311; State ex rel. Crosby v. Decatur Circuit Court, 247 Ind. 567, 569, 219 N.E.2d 898, 899 (1966); Magnuson v. Billings, 152 Ind. 177, 180, 52 N.E. 803, 804 (1899). In Meredith, however, we observed that “a court should not blindly adhere to all of its rules.” 679 N.E.2d at 1311. In rare cases, such blind adherence to rigid procedural requirements may defeat justice instead of serving the rules’ intended function as a means of obtaining the end of orderly and speedy justice. Id.; accord Am. States Ins. Co. v. State ex rel. Jennings, 258 Ind. 637, 640, 283 N.E.2d 529, 531 (1972). But we cautioned that a court should not set aside its own rules lightly and that, before doing so, “the court must assure itself that it is in the interests of justice to do so, that the substantive rights of the parties are not prejudiced, and that the rule is not a mandatory rule.” Meredith, 679 N.E.2d at 1311 (footnote omitted) (citations omitted).

Here, the Court of Appeals concluded “that the trial court should not have adhered to the local rule as it failed to achieve ‘the ultimate end of orderly and speedy justice.’ ” Gill, 940 N.E.2d at 333 (quoting Meredith, 679 N.E.2d at 1310). In arriving at this conclusion, the court observed that Indiana “has never clearly characterized ‘an improvement to real property,’ ” id. at 332 (citation omitted), and that, to make this determination, “we need to inquire as to the scope of work performed by ESMW,” id. According to the court, “[a] proper analysis of the statutory language ‘improvement to real estate’ necessitated detailed discovery,” id. at 333, and because Local Rule 714 allowed an initial summary judgment motion prior to discovery, it should not have been applied, id. at 332-33.

We agree with the Court of Appeals that whether something constitutes an improvement to real property is a fact-sensitive inquiry that may require discovery in some cases. But we disagree with its conclusion that Local Rule 714 cannot be applied in this context. Local Rule 714 does not alter the substantive requirements for summary judgment, nor could it, see T.R. 81. Thus, if discovery is needed to determine whether something constitutes an improvement to real property, then the trial court should deny the movant’s initial motion for summary judgment under Local Rule 714 because the movant has not met its initial burden — i.e., it has not made the requisite prima facie showing. This is quite different from concluding, as the Court of Appeals did, that the trial court should not allow a Rule 714 motion in the first place. In short, this is not the type of situation envisioned by the narrow exception discussed in Meredith.

Conclusion

We reverse the trial court’s judgment in favor of ESMW on Gill’s contractor-negligence claim and remand for further proceedings.

DICKSON, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.

      . fcd.Code § 34-20-3-1 (2008).

      . Ind.Code § 32-30-1-5 (2004).

      .ESMW also argued that Gill had failed to establish causation. The trial court denied the motion on this ground, and ESMW does not challenge this ruling.

      . A statute of repose is similar to a statute of limitations in that both provide repose for defendants after a specified period of time has elapsed. E.g., Kissel v. Rosenbaum, 579 N.E.2d 1322, 1327 (Ind.Ct.App.1991). But the nature of repose statutes and the general policies supporting them differ markedly from limitations statutes. A statute of limitations serves as a procedural bar to a remedy where the claimant fails to commence a lawsuit within a specified period of time after a legally cognizable injury accrues. Statutes of limitations punish those who sit on their rights and do not pursue their claims diligently; and by barring stale claims they afford a measure of fairness to defendants and preserve the truth-finding function of courts. E.g., First United Methodist Church v. U.S. Gypsum Co., 882 F.2d 862, 865-66 (4th Cir.1989). Statutes of repose, on the other hand, mark the outer boundaries of substantive legal rights because they limit the time during which a cause of action can arise — i.e., no cause of action exists once the repose period expires. Kissel. 579 N.E.2d at 1326-27. As a corollary, they vest in defendants a substantive right to immunity. First United, 882 F.2d at 866; cf. In re Individual 35W Bridge Litigation, 806 N.W.2d 820, 831 & n. 8 (Minn.2011) (holding that when repose period expires the statute-of-repose defense ripens into a property right entitled to due process protections), cert, denied sub nom. Jacobs Eng'g Grp., Inc. v. Minnesota, -U.S. -, 132 S.Ct. 2682, 183 L.Ed.2d 45, 2012 WL 668282 (2012). Statutes of repose are not primarily concerned with encouraging prompt presentation of claims and thus may bar claims pursued by even the most diligent claimants. Kissel, 579 N.E.2d at 1327. They "are based on considerations of the economic best interests of the public as a whole and are substantive grants of immunity based on a legislative balance of the respective rights of potential plaintiffs and defendants struck by determining a time limit beyond which liability no longer exists.” First United, 882 F.2d at 866 (citation omitted).

      .This is not the current version of the statute. The current statute reflects significant amendments enacted by the Legislature in 2005, see Pub.L. No. 79-2005, § 1, 2005 Ind. Acts 1737, 1737-38 (codified as amended at Ind.Code § 32-30-1-5 (2008)), but the amended (and current) statute "applies only to a cause of action accruing after June 30, 2005," id. § 3, 2005 Ind. Acts at 1738. Gill's wrongful-death claims did not accrue after June 30, 2005; they accrued on May 4, 2005, when her husband died. See Ind.Code § 34-23-1-1 (2008); Technisand, Inc. v. Melton, 898 N.E.2d 303, 306 (Ind.2008). Thus, the current version of the statute does not apply here. The parties have litigated this cause under the current statute — their arguments are based on subsection 32-30-l-5(d), which did not exist until the 2005 amendments went into effect — and the Court of Appeals decided the case accordingly, see Gill, 940 N.E.2d at 332. Despite their error, we proceed to the merits of the parties' arguments under the applicable pre-2005 statute because, for purposes of this case, we perceive no substantive difference between that statute and the current version.

      . Under the current statute, a person who undertakes any of these activities is a "designer," Ind.Code § 32-30-l-5(a) (2008), and the statute applies only in actions against a "designer” or a "possessor," id. § 32-30-l-5(d). The statute also defines "possessor.” Id. § 3 2-30-1-5(b).

      . Of course, if the claim is for a design deficiency, then the action must be commenced either within ten years after substantial completion of the improvement or within twelve years of "the completion and submission of plans and specifications to the owner,” whichever is earlier. Ind.Code § 32-30-1-5 (2004).

      . It was incorrect for the Court of Appeals to affirm the trial court’s decision without resolving whether ESMW constructed an improvement to real property. Although Gill’s claim was filed approximately eighteen years after the undisputed latest date of substantial completion, the fact that one of the statutory requirements — the ten-year period of repose— was more than satisfied does not in any way eliminate the improvement-to-real-property requirement.

      . See generally Gibson B. Witherspoon, Architects' and Engineers’ Tort Liability. 16 Def. L.J. 409, 409-10 (1967); Margaret A. Cotter, Comment, Limitation of Action Statutes for Architects and Builders-Blueprints for Non-Action, 18 Cath. U.L.Rev. 361, 361-64 (1969); Pamela J. Hermes, Note, Actions Arising Out of Improvements to Real Property: Special Statutes of Limitations. 57 N.D. L.Rev. 43, 43-44(1981).

      . See generally William D. Bremer, Annotation, What Constitutes "Improvement to Real Property” for Purposes of Statute of Repose or Statute of Limitations, 122 AL.R.5th 1 (2004) (collecting cases).

      . Oklahoma law departs from this dichotomy by examining how the article is treated under the state's ad valorem tax statutes — i.e., whether the article is taxed as realty or personalty. E.g., Kirby v. Jean’s Plumbing Heat & Air, 222 P.3d 21, 26-27 (Okla.2009); Smith v. Westinghouse Elec. Corp., 732 P.2d 466, 468 (Okla.1987). In addition to an article’s ad valorem tax status, courts applying Oklahoma law consider whether it was taxed as the personal property of someone other than the owner of the real property where the accident occurred, the permanence of the improvement, the degree to which the improvement enhances the value of the real property, and the parties' intent to make the improvement one to real property. Durham v. Herbert Olbrich GMBH & Co., 404 F.3d 1249, 1253 (10th Cir.2005).

      . The following is a sample list of state court decisions that have adopted the commonsense approach: Stanske v. Wazee Elec. Co., 722 P.2d 402, 406-07 (Colo.1986) (en banc); Grigerik v. Sharpe, 247 Conn. 293, 721 A.2d 526, 534 (1998); Mullis v. Southern Co. Servs., Inc., 250 Ga. 90, 296 S.E.2d 579, 583 (1982); West v. El Paso Prods. Co., 122 Idaho 133, 832 P.2d 306, 309 (1992); St. Louis v. Rockwell Graphic Sys., Inc., 153 Ill.2d 1, 178 Ill.Dec. 761, 605 N.E.2d 555, 556 (1992); Krull v. Thermogas Co., 522 N.W.2d 607, 611 (Iowa 1994); Rose v. Fox Pool Corp., 335 Md. 351, 643 A.2d 906, 918 (1994); Milligan v. Tibbetts Eng’g Corp., 391 Mass. 364, 461 N.E.2d 808, 811 (1984); Pendzsu v. Beazer East Inc., 219 Mich.App. 405, 557 N.W.2d 127, 131-32 (1996); State Farm Fire & Cas. v. Aquila Inc., 718 N.W.2d 879, 884 (Minn.2006); Ebert v. South lersey Gas Co., 157 N.J. 135, 723 A.2d 599, 601 (1999); Delgadillo v. City of Socorro, 104 N.M. 476, 723 P.2d 245, 247 (1986); Brennaman v. R.M.I. Co., 70 Ohio St.3d 460, 639 N.E.2d 425, 429-30 (1994); Desnoyers v. R.I. Elevator Co., 571 A.2d 568, 570 (R.I. 1990); S.C. Pipeline Corp. v. Lone Star Steel Co., 345 S.C. 151, 546 S.E.2d 654, 656-57 (2001); Clark County v. Sioux Equip. Corp., 753 N.W.2d 406, 410-11 & n. 4 (S.D.2008); Highsmith v. I.C. Penney & Co., 39 Wash.App. 57, 691 P.2d 976, 979-80 (1984); Stone v. United Eng’g, 197 W.Va. 347, 475 S.E.2d 439, 449-50 (1996); Kohn v. Darlington Cmty. Sch., 283 Wis.2d 1, 698 N.W.2d 794, 801 (2005); Covington v. W.R Grace-Conn., Inc., 952 P.2d 1105, 1107 (Wyo.1998).

      . A common definition found in standard dictionaries is " 'a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.’ " Krull, 522 N.W.2d at 611 (quoting Webster's Third New International Dictionaiy 1138 (P. Gove ed.1993)); accord Adair, 741 F.2d at 114; Milligan, 461 N.E.2d at 811; Pendzsu, 557 N.W.2d at 131; Pac. Indent. Co., 260 N.W.2d at 554; Delgadillo, 723 P.2d at 247; S.C. Pipeline Corp., 546 S.E.2d at 656; Sioux Equip. Corp., 753 N.W.2d at 410; Stone, 475 S.E.2d at 449; Kohn, 698 N.W.2d at 801. Other courts have looked to prior versions of Black’s Law Dictionary and held that an improvement is " '[a] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.’ ” St. Louis, 178 Ill.Dec. 761, 605 N.E.2d at 556 (quoting Black’s Law Dictionary 682 (5th ed.1979)); accord Grigerik, 721 A.2d at 534; Rose, 643 A.2d at 918; Desnoyers, 571 A.2d at 570; Covington, 952 P.2d at 1107.

      . We observe that, though different, the fixtures approach and the commonsense approach need not be mutually exclusive. Cf. Desnoyers, 571 A.2d at 570 (”[T]he term 'fixture' and the phrase ‘improvement to real property’ are not synonymous. Even though a fixture, by definition, is an improvement to real property, an improvement to real property need not be a fixture."). In McCormick v. Columbus Conveyer Co., 522 Pa. 520, 564 A.2d 907, 909 (1989), the Pennsylvania Supreme Court adopted the plain meaning of "improvement” as defined in Black's Law Dictionary, but, thereafter, lower state courts and federal courts applying Pennsylvania law apparently struggled with applying this definition, see, e.g., Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 114-15 (3d Cir.1992) (noting that lower state courts had interpreted "improvement” differently). The court subsequently expounded on its definition to resolve this confusion. Noll by Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81 (1994). As a general matter, the court noted, "[a]n improvement includes everything that permanently enhances the value of real property.” Id. at 87 (citations omitted). It listed the following as typical examples: "erection of a building; replacing old buildings with new ones; substantial repairs to a building necessary to preserve a building; the making of substantial additions to or changes in existing buildings; construction of sidewalks; erection of fences; and the preparation of land for building sites.” Id. (citation omitted). Although these clearly constituted improvements, more difficult questions arose "where chattel or personalty [was] attached to real property.” Id. (citations omitted). Under those circumstances, the court held, the law of fixtures should apply to determine whether a chattel constituted an improvement to real property. Id.

      . For example, as between a vendor and vendee an article affixed to real property may retain its status as personalty if it can be removed without causing material injury to the real property, but this would "not affect the rights of an innocent purchaser without knowledge, where the chattel has been annexed to the realty in such manner as to indicate a permanent attachment.” Citizens Bank, 216 Ind. at 580, 25 N.E.2d at 447. Another variance in the rules is with regard to intent: In the landlord-tenant context, in which these issues generally arise, courts may be more concerned with the subjective intent of the parties. E.g., Little, 340 S.E.2d at 513. But outside that context, courts are primarily concerned with the objective intent of the parties. Id.; accord Noll, 643 A.2d at 88 & n. 6.

      . In a recent decision, the Northern District of Indiana predicted that we would adopt the commonsense approach. See Pentony, - F.Supp.2d at --, 2012 WL 1095220, at *3-4 (applying commonsense approach under Indiana CSoR and holding that play area at public park was an improvement to real property).

      . At ESMW’s urging, the trial court relied on J.M. Poster, Inc. v. Spriggs, 789 N.E.2d 526 (Ind.Ct.App.2003), trans. not sought, to conclude that any application or removal of asbestos-containing materials by a contractor is an improvement to real property. To the extent that Spriggs may stand for that proposition, it is disapproved.

        In any event, while Spriggs involved claims almost identical to Gill's, it presented slightly different legal issues. 789 N.E.2d at 527. The trial court had denied the contractors’ motion for summary judgment in which they sought immunity under the CSoR. Id. The Court of Appeals reversed and held that, as a general matter, the CSoR is applicable to claims against installers of asbestos whose activities exposed workers to asbestos fibers. Id. at 530-33.
      In doing so, the court relied on Abbott v. John E. Green Co., 233 Mich.App. 194, 592 N.W.2d 96 (1998). However, in Abbott, the plaintiffs had conceded that the defendants’ work resulted in an improvement to real property. They argued that the Michigan statute applied only to deficiencies in the ultimate improvement and not to deficiencies in the construction activities leading up to the improvement. Id. at 100. The Michigan Court of Appeals rejected this argument. Id. at 100-01. From this, our Court of Appeals rejected Spriggs' contention that the contractors’ installation or removal of asbestos products did not constitute an improvement to real property. Spriggs, 789 N.E.2d at 532-33.
      At bottom, the Spriggs court did not purport to define "improvement to real property,” and, though not entirely clear, it appears that Spriggs, unlike Gill, had conceded that the contractors’ work had resulted in an improvement to real property.

      . Certain but not all local rules are subject to Supreme Court approval. See Ind. Administrative Rule 1(E) (county caseload allocation plans); Admin. R. 15 (court reporter services); T.R. 79(H) (selection of special judges); Ind.Crim. Rules 2.2 & 13(C) (assignment of criminal cases and selection of successor judges). All local rules, whether subject to Supreme Court approval or not, must comply with the requirements of Trial Rule 81, including requirements as to notice, comment, and publication.


source: Caselaw Access Project

author: DICKSON, Chief Justice.

license: Public Domain

text:
    Michael SHARP, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 12S02-1109-CR-544.
    Supreme Court of Indiana.
    June 26, 2012.

      Richard L. Langston, Frankfort, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian L. Reitz, Deputy Attorney General, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   On Transfer from the Indiana Court of Appeals, No. 12A02-1010-CR-1188

DICKSON, Chief Justice.

The defendant Michael E. Sharp has appealed his convictions and sentences for two counts of Child Molesting. The Court of Appeals rejected his several appellate claims and affirmed the trial court. Sharp v. State, 951 N.E.2d 282 (Ind.Ct.App.2011). Seeking transfer, the defendant asserts a single claim: that the Court of Appeals should have considered his credit restricted felon status when evaluating his request for appellate sentence review under Indiana Appellate Rule 7. As to this issue, we reject the rationale applied by the Court of Appeals but reach the same outcome regarding the appropriateness of the defendant’s sentence. With respect to the defendant’s other appellate issues, we summarily affirm the Court of Appeals. Ind.App. R. 58(A)(2).

Briefly summarizing the relevant facts, between August 1, 2007, and August 31, 2008, the defendant molested C.S., his stepson, every other weekend while C.S. was visiting his mother. The molestation occurred after everyone in the house went to bed. The defendant would go into C.S.’s room and awaken C.S. by touching and fondling him. Each time C.S. would tell the defendant to stop, and the defendant would leave. At some point, the defendant told C.S. that “it was a secret and he would go to jail if [C.S.] told.” Tr. at 78. C.S. told his stepmother about the molestation on October 6, 2008, and she promptly reported the abuse to law enforcement officials. A more detailed presentation of the facts can be found in the Court of Appeals opinion. Sharp, 951 N.E.2d at 285-86.

Following a jury trial in which the defendant was found guilty of Child Molesting as a class A felony and Child Molesting as a class C felony, the trial judge imposed concurrent sentences of 40 years for the class A felony and 6 years for the class C felony. The trial judge also ordered the defendant to be placed on lifetime parole pursuant to Indiana Code Section 35-50-6-l(e) following his term of incarceration. In addition, the defendant was designated as (a) a sexually violent predator pursuant to Indiana Code Section 35-38-1-7.5 and (b) a credit restricted felon pursuant to Indiana Code Section 35-41-1-5.5(1) and therefore assigned to class IV for purposes of credit time. The defendant’s appeal raises issues of double jeopardy and improper sentencing. As to the latter claim, the defendant has primarily challenged the trial court’s consideration of aggravating and mitigating circumstances. Embedded within his argument on this claim is a request for appellate review and revision of his sentence. The Court of Appeals rejected all of his claims and, in its appellate sentence review, held “we will not take into account a person’s credit restricted felon status when reviewing a sentence under Appellate Rule 7(B)” because “credit time is set by the legislature and is not a discretionary tool used by the trial court judge.” Sharp, 951 N.E.2d at 290. We granted transfer and now hold that credit time status may be considered by an appellate court exercising its review and revise authority.

The exercise of appellate authority to review and revise criminal sentences is governed by Indiana Appellate Rule 7(B), which provides that an appellate court “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”

Under Indiana law, several tools are available to the trial court to use in fashioning an appropriate sentence for a convicted offender. In addition to conventional imprisonment for a term of years, there can also be separate consequences such as “suspension of [all or part of the term of years portion of the] sentence, probation, home detention, placement in a community corrections program, executed time in a Department of Correction facility, or [the] serving of [term of years] sentences on multiple convictions concurrently rather than consecutively” as well as monetary penalties such as restitution and fines. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.2010) (footnotes omitted). These other penal tools form an integral part of the actual aggregate penalty faced by a defendant and are thus properly considered as part of the sentence subject to appellate review and revision. See id

In this appeal, the defendant contends that his unfavorable credit time status should be considered as part of the aggregate penal consequences subject to appellate review and revision under Appellate Rule 7. The State responds that a defendant’s credit time status should not be considered for purposes of Appellate Rule 7 review because credit time status is a “correctional tool” offered as a carrot to encourage a defendant to conduct himself or herself appropriately while incarcerated. Oral Arg. at 00:24:30, 00:30:10, available at https://mycourts.in.gov/arguments/ default.aspx?view=detail&id=1287. The State asserts that, because the amount of credit time that might ultimately be earned by a defendant is contingent on future circumstances, the sentence is unknowable at the time of an appellate court’s review and is, therefore, not an appropriate factor for an appellate court to consider as a part of Appellate Rule 7 review.

To the contrary, we do not find the possibility of post-sentence credit time adjustment to preclude appellate consideration of a trial court’s initial credit time assignment at the time of sentencing. In exercising appellate sentence review, our concern is whether the totality of the penal consequences imposed by the trial court was appropriate. See Davidson, 926 N.E.2d at 1025 (holding that appellate courts should consider the “aggregate length of the sentence” because of the variety of penal tools available to the trial court); Cardwell v. State, 895 N.E.2d 1219, 1224-25 (Ind.2008) (discussing the need to consider the aggregate term of incarceration rather than the separate terms for individual counts because of the prosecutor’s discretion as to charging decisions and the trial court’s discretion in determining how the defendant’s incarceration time will be served). Appellate Rule 7(B) thus authorizes appellate courts to review and revise the totality of penal consequences ordered by a trial court to determine its appropriateness “in light of the nature of the offense and the character of the offender.” Accordingly, evaluation of a defendant’s sentence may include consideration of the defendant’s credit time status because this penal consequence was within the contemplation of the trial court when it was determining the defendant’s sentence.

Applying these principles to this case, however, we do not accept the defendant’s contention that his sentence of 40 years of incarceration with a minimum possible sentence of 34.29 years is inappropriate. In explaining the reasons for the penal consequences selected for the defendant’s sentence, the trial court detailed the nature of the crime committed, noting: The “Defendant was in a position of having care, custody, or control of the victim when he perpetrated the offenses”; “Although the Defendant was charged with only one count each of molesting by deviate sexual conduct and molesting by fondling, the evidence at trial clearly demonstrated that the Defendant had committed each of the same the offenses [sic] upon his victim on multiple occasions over a period of years.” Appellant’s Br. at 18. These facts convince us that the nature of the defendant’s criminal conduct warrants serious penal consequences. The defendant contends that his subsequent acknowledgment of his own shortcomings and his pursuit of his faith are indicators of positive character, but we are not persuaded that these factors undermine the appropriateness of the sentence chosen by the trial court. Even with the further consideration of the defendant’s assigned credit time status, we do not find the defendant’s sentence to be inappropriate in light of the nature of his offenses and his character.

Conclusion

We hold that appellate sentence review may take into consideration the potential consequences of an offender’s status as a credit restricted felon, but we otherwise summarily affirm the decision of the Court of Appeals regarding double jeopardy and the trial court’s consideration of aggravating and mitigating circumstances. We decline to find the defendant’s sentence to be inappropriate, and we affirm the judgment of the trial court.

SULLIVAN, RUCKER, DAVID, and MASSA, JJ., concur.

      . At oral argument, the defendant asserted an additional claim that his designation as a credit restricted felon under Indiana Code Section 35-41-1-5.5 violates the ex post facto clause of the United States Constitution, U.S. Const, art. I, § 10. The defendant argues that, because the jury did not make a specific finding that any of the acts of molestation occurred after the effective date of the credit restricted felon statute, there was insufficient evidence to support his designation as a credit restricted felon. We need not explore the nature of the ex post facto prohibition, however, because C.S. testified at trial that the defendant "touched my private area,” Tr. at 76, "[a]bout every other weekend I was over [at the defendant’s house in the two years preceding October 6, 2008],” Tr. at 74, 77. This was sufficient evidence from which a reasonable jury could conclude that the defendant molested C.S. after July 1, 2008, the effective date of the statute.

      . Ind.Code §§ 35 — 42—4—3(a)(1) and 3(b).

      . Indiana Code Section 35-41-1-5.5 states:
      "Credit restricted felon” means a person who has been convicted of at least one (1) of the following offenses:
      (1) Child molesting involving sexual intercourse or deviate sexual conduct (IC 35-42-4-3(a)), if:
      (A) the offense is committed by a person at least twenty-one (21) years of age; and
      (B) the victim is less than twelve (12) years of age.
      (2) Child molesting (IC 35-42-4-3) resulting in serious bodily injury or death.
      (3) Murder (IC 35-42-1-1), if:
      (A) the person killed the victim while committing or attempting to commit child molesting (IC 35-42-4-3);
      (B) the victim was the victim of a sex crime under IC 35-42-4 for which the person was convicted; or
      (C) the victim of the murder was listed by the state or known by the person to be a witness against the person in a prosecution for a sex crime under IC 35-42-4 and the person committed the murder with the intent to prevent the person from testifying.

      .Depending on the credit class to which a defendant is assigned, a defendant may earn a statutorily specified amount of credit time for each day of incarceration which can reduce the amount of time the defendant is incarcerated. Ind.Code § 35-50-6-3. A defendant is initially assigned to credit class I or IV depending on whether the defendant is a credit restricted felon. Id. §§ 35-50-6-3(a), (b). "A person assigned to Class IV earns one (1) day of credit time for every six (6) days the person is imprisoned for a crime or confined awaiting trial or sentencing,” id. § 35-50-6-3(d), while "[a] person assigned to Class I earns one (1) day of credit time for each day the person is imprisoned for a crime or confined awaiting trial or sentencing," id. § 35-50-6-3(a). Pursuant to Indiana Code Section 35-50-6-4(b), a credit restricted felon is automatically assigned to credit class IV. After the initial assignment, a defendant can be reassigned to a more or less restrictive class or be deprived of any earned credit time depending on his or her compliance with certain rules and other factors. Id. §§ 35-50-6-4, -5.

      . Article 1, Section 18 of the Indiana Constitution provides: “The penal code shall be founded on the principles of reformation, and not of vindictive justice.”

      . As a credit restricted felon, the defendant will be required to serve a minimum of 34.29 years of his 40 year sentence, if he maintains his eligibility for credit time, compared to a non-credit restricted felon who would only be required to serve a minimum of 20 years.


author: DAVID, Justice. SULLIVAN, Justice,

text:
    Annette (Oliver) HIRSCH, Appellant (Petitioner below), v. Roger Lee OLIVER, Appellee (Respondent below).
    No. 29S02-1109-DR-530.
    Supreme Court of Indiana.
    June 29, 2012.
   On Petition to Transfer from the Indiana Court of Appeals, No. 29A02-1004-DR-429

DAVID, Justice.

In this case, after two hearings, the trial court issued a number of post-dissolution orders. Relevant to this appeal are the trial court’s specific findings related to the emancipation of a child and the requirement of a parent to contribute toward a child’s post-secondary educational expenses. On appeal, a trial court’s orders should be afforded the appropriate level of deference, as reflected in the applicable standard of review.

This opinion clarifies various aspects of the emancipation statute and also affirms the majority of the trial court’s rulings on emancipation and post-secondary educational expenses.

Facts and Procedural History

Annette (Oliver) Hirsch (“Mother”) and Roger Lee Oliver (“Father”) were married in 1985 and divorced in 1994. They had three children during their marriage: Katherine in 1986; Elizabeth in 1988; and Courtney in 1990. Over the years, following the dissolution, Mother and Father have litigated various issues related to the children. The present case primarily deals with Courtney, and to a lesser extent, Elizabeth.

On September 23, 2009, Father petitioned the trial court to emancipate Courtney. Mother initially contested Courtney’s emancipation but later stipulated Courtney was emancipated no later than December 10, 2009. Mother also sought contribution from Father for Courtney’s post-secondary educational expenses. The trial court held evidentiary hearings on these, and other, issues in October 2009 and February 2010.

Subsequently, in March 2010, the trial court issued an order that (1) declared Courtney emancipated as of September 23, 2009; (2) declined to require Father to contribute toward Courtney’s post-secondary educational expenses; (3) determined Father’s overpayment of child support and ordered Mother to repay that amount; (4) held Father owed Mother nothing toward Elizabeth and Courtney’s 2009 medical expenses; (5) ordered Mother to pay $5,000 in attorney’s fees to Father; and (6) ordered Mother to pay Father’s current wife $227 in witness-expense fees.

Mother appealed, raising arguments related to the trial court’s six rulings described above. A majority of the Court of Appeals reversed and remanded on all of the issues. Hirsch v. Oliver, 944 N.E.2d 956 (Ind.Ct.App.2011). Judge Baker dissented on two points: the date of Courtney’s emancipation and Father’s obligation to contribute to Courtney’s post-secondary educational expenses. Id. at 970-72 (Baker, J., concurring in part and dissenting in part).

We granted transfer to address issues related to Courtney’s emancipation and post-secondary educational expenses. We summarily affirm the decision of the Court of Appeals on the remaining issues. Ind. Appellate Rule 58(A)(2).

I. Emancipation

What constitutes emancipation is a question of law; whether emancipation has occurred is a question of fact. Dunson v. Dunson, 769 N.E.2d 1120, 1123 (Ind.2002). A party seeking emancipation must establish it by competent evidence. Id. Indiana Code section 31-16-6-6 (Supp. 2010) deals with the termination of child support and emancipation. It provides as follows:

(a) The duty to support a child under this chapter ceases when the child becomes twenty-one (21) years of age unless any of the following conditions occurs:
(1) The child is emancipated before becoming twenty-one (21) years of age. In this case the child support, except for the educational needs outlined in section 2(a)(1) of this chapter, terminates at the time of emancipation, although an order for educational needs may continue in effect until further order of the court.
(2) The child is incapacitated. In this case the child support continues during the incapacity or until further order of the court.
(3) The child:
(A) is at least eighteen (18) years of age;
(B) has not attended a secondary school or postsecondary educational institution for the prior four (4) months and is not enrolled in a secondary school or postsecondary educational institution; and
(C) is or is capable of supporting himself or herself through employment.
In this case the child support terminates upon the court’s finding that the conditions prescribed in this subdivision exist. However, if the court finds that the conditions set forth in clauses (A) through (C) are met but that the child is only partially supporting or is capable of only partially supporting himself or herself, the court may order that support be modified instead of terminated.
(b) For purposes of determining if a child is emancipated under subsection (a)(1), if the court finds that the child:
(1) is on active duty in the United
States armed services;
(2) has married; or
(3) is not under the care or control of:
(A) either parent; or
(B) an individual or agency approved by the court;
the court shall find the child emancipated and terminate the child support.

This Court has stated that the purpose of the statute “is to require that parents provide protection and support for the welfare of their children until the children reach the specified age or no longer require such care and support.” Dunson, 769 N.E.2d at 1124,

In this case, Father filed a “Verified Petition for Emancipation” and requested that the trial court “find the child of the parties, Courtney, emancipated for child support purposes” and “terminate [Father’s] obligation to pay child support in this matter.” Father did not cite a specific subsection of the relevant statute in his petition. The trial court’s findings on Father’s request for Courtney’s emancipation likewise did not cite a particular subsection of Indiana Code section 31-16-6-6. However, in determining that Courtney was emancipated as of September 23, 2009, the trial court used language that mostly tracked the requirements of subsection (a)(3). Specifically, the trial court referenced a requirement found only in subsection (a)(3)(B), by concluding that Courtney had not “engaged in any post-high school educational pursuits in which she completed any classes for more than four months.” Ultimately, the trial court found Courtney was emancipated as of September 23, 2009, which is the date Father filed his petition.

At this point, we pause to address how various decisions have interpreted subsection (a)(3)’s relation to the emancipation of a child. Importantly, the Court of Appeals touched on that issue, stating that “subsection (a)(3) of this statute does not technically concern the emancipation of a child, as opposed to termination of child support.” Hirsch, 944 N.E.2d at 962 n. 4. Some prior decisions have also noted this. Other decisions, however, have classified subsection (a)(3) differently, concluding that it is, in fact, a basis for a court to find emancipation.

On these opposing views, the Court of Appeals here stated, “this is largely a distinction without a difference, where the only practical consequence of emancipation, as is the case here, is termination of child support obligations.” Hirsch, 944 N.E.2d at 962 n. 4. Although this may be true here, it is prudent to articulate what (a)(8) covers to avoid confusion.

Subsection (a)(3) states that the duty to support an eighteen-year-old child terminates if the child has not met certain educational requirements and the child is supporting himself or herself through employment or is capable of doing so. Notably, subsection (a)(3) does not mention that emancipation occurs in conjunction with the termination of child support. On the other hand, if the eighteen-year-old child has met the stated educational requirements and is not capable of supporting himself or herself, then the duty to support the child continues, despite the child having reached the age of majority. In that circumstance, the eighteen-year-old child would not be considered fully emancipated: the dependent relationship between the parent and child continues because the child is still in need of support from the parents.

Decisions that view subsection (a)(3) as not concerning emancipation fail to see that emancipation must be a natural consequence of finding that the child has reached the age of majority, has not fulfilled the stated educational requirements, and is capable of supporting himself or herself. When an adult child fails to pursue secondary or post-secondary education as defined in the statute and is also capable of supporting himself or herself, there is no reason for the parents to be legally required to support the adult child. And we cannot envision a situation where a trial court finds that the three requirements of (a)(3) are fulfilled but the child regardless remains unemancipated. In essence, if under Indiana Code section 31-16-6-6(a)(3), a trial court determines there is no longer an obligation of the parent to support the child, emancipation has necessarily occurred because the child has reached the age of majority and is no longer under any legal disability by virtue of being a minor. Accordingly, once a trial court finds that subsection (a)(3)’s requirements have been met and child support terminates, emancipation occurs as a matter of law.

Here the Court of Appeals noted the correct standard for an appellate court reviewing a trial court’s determination regarding the date of emancipation: “we will neither reweigh the evidence nor assess the credibility of witnesses, and we will not set aside the finding of the trial court unless it is clearly erroneous.” Hirsch, 944 N.E.2d at 963 (citing Connell v. Welty, 725 N.E.2d 502, 504 (Ind.Ct.App.2000)). “‘We will not reverse unless there is a total lack of supporting evidence or the evidence is undisputed and leads solely to a contrary conclusion.’ ” Id. (quoting Con-nell, 725 N.E.2d at 504). The Court of Appeals ultimately determined that the trial court “clearly erred” in concluding that Courtney was emancipated at any time prior to December 10, 2009, which is the date Mother conceded Courtney was emancipated. Id. In making that determination, the Court of Appeals found that the requirements of subsections (a)(8)(B) and (C) had not been met. Id. at 964-65.

The Court of Appeals first noted that for child support to terminate under subsection (a)(3) “both (1) a lack of attendance and (2) a lack of enrollment at an education institution” are required for the pri- or four months. Id. at 964. The court then determined that “[t]he undisputed evidence is that at all relevant times ... [Courtney] was in fact enrolled as a student at Ivy Tech.” Id. In reaching this conclusion, the Court of Appeals applied a definition of “is enrolled” from Butrum v. Roman, 803 N.E.2d 1139, 1145 (Ind.Ct.App.2004), trans. denied. Hirsch, 944 N.E.2d at 964. The Court of Appeals in Butrum noted that Title 31 of the Indiana Code did not define “enroll” and thus settled on the following definition: ‘“is enrolled’ as used in Indiana Code § 31-16-6-6 means more than being involved in the application process; rather, it means that one has been accepted to the institution and is officially registered at the institution as a student.” 803 N.E.2d at 1145.

As to subsection (a)(3)(C), the Court of Appeals found insufficient evidence to support the trial court’s conclusion that Courtney was “in fact self-supporting, or capable of self-support.” Hirsch, 944 N.E.2d at 964. It determined that although the trial court found that Courtney had worked at two different locations after graduating from high school, those facts did “little more than establish that Courtney was physically capable of working.” Id. The Court of Appeals noted that Courtney never worked more than twenty hours per week and that at most she was paid $8 per hour. Id. The Court of Appeals concluded that “[t]here is no evidence that Courtney possessed job skills that could lead to greater earnings.” Id.

Judge Baker dissented on both the enrollment and self-support issues. First, he stated that the definition of “enroll” under the circumstances did not go “far enough.” Id. at 971. (Baker, J., concurring in part and dissenting in part). He explained that “[accepting such a broad definition of the term means that a student could conceivably be ‘enrolled’ in a postsecondary educational institution in perpetuity without ever actually taking any classes.” Id. Judge Baker suggested a modification to the Butrum definition: “enrolled, in the context of subsection (a)(3), means that one has been accepted to the institution, is officially registered at the institution as a student, and in good faith is attending or intends to attend the institution in the foreseeable future.” Id. The dissent noted that here the trial court heard testimony regarding Courtney dropping all of her classes after attending school for only two weeks, Courtney telling her father that college was not for her, and Courtney saying that she did not foresee returning to school. Id. Furthermore, although Courtney had re-enrolled in classes in January 2010, the trial court had noted in its order “its skepticism that she would complete those classes.” Id. Judge Baker concluded, “It is evident that the trial court assessed [Courtney’s] credibility and found it wanting, and I believe that we should not second-guess that assessment on appeal. Consequently, I would find that the trial court did not err by finding that Courtney was not enrolled in Ivy Tech on September 23, 2009.” Id. Father urges us to adopt the dissent’s definition of “enrolled,” stating that the majority’s broad interpretation of the term could result in a child avoiding emancipation by enrolling in classes indefinitely without ever intending to attend the classes.

We agree with the dissent and Father on the issue of enrollment. The present case, as Judge Baker noted, presents the circumstances to demonstrate why the Butrum definition of “is enrolled” is too broad. Inherent in the definition of “is enrolled” is a requirement that all parties act in good faith; otherwise, an eighteen-year-old child could register for classes and never attend them while his or her parent continues, as required by law, to pay child support. A parent should not be burdened with the obligation of supporting his or her adult child in these circumstances unless that child, in good faith, is furthering or intends to further her or her education. Accordingly, the more appropriate definition of subsection (a)(3)’s “is enrolled” is the one formulated by the dissent: is accepted to the institution, is officially registered at the institution as a student, and in good faith is attending or intends to attend the institution in the foreseeable future. Under that definition, the trial court here concluded that Courtney’s actions in attending classes for two weeks and subsequently withdrawing neither constituted attending school in good faith nor constituted intending to attend school in good faith.

On the issue of self-support, Judge Baker noted that the trial court heard evidence on Courtney’s employment during and after high school. Hirsch, 944 N.E.2d at 971 (Baker, J., concurring in part and dissenting in part). And although Mother focused on Courtney’s alleged anxiety disorder, the dissent noted that there was no “expert evidence supporting that claim” and that “the trial court was free to discount the testimony” regarding it. Id. Judge Baker concluded that the majority’s result “necessarily require[d] reweighing the evidence.” Id. We agree. The majority here, although stating the correct standard of review, does not give proper deference to the trial court’s finding on self-support. The trial court here explicitly found that Courtney “had the capacity to work at least two jobs to provide for her own support” after hearing testimony on the issue. Although the majority found reasons why this might not support a finding of self-support, we cannot conclude that there is a total lack of supporting evidence for the trial court’s contrary finding that Courtney was capable of self-support.

Thus, we disagree with the Court of Appeals conclusions that the trial court’s findings regarding Courtney’s enrollment and capability of self-support were clearly erroneous. As stated above, it was not clearly erroneous for the trial court to find that Courtney was not enrolled in post-secondary education despite her two-week attendance to community college classes. However, the record does not support the trial court’s finding that this lack of enrollment occurred “for more than four months subsequent to her graduation from high school.” Here the record shows that Courtney graduated sometime in the spring of 2009. The most specific information was given by Father, when he stated that he believed Courtney graduated during the “[fjirst week of June of 2009.” Based on this information, we find that the evidence does not support the trial court’s finding that Courtney had not been engaged in educational pursuits for four months prior to September 23, 2009, the date the trial court declared her emancipation.

September 23, 2009, is the date Father filed the emancipation petition, and we note that “the assertion of emancipation will be effective as of the date of emancipation rather than as of the date of filing.” Donegan v. Donegan, 605 N.E.2d 132, 133 (Ind.1992). And the Court of Appeals was correct in stressing that “[w]here there have been no material changes in the facts and circumstances relevant to the issue of emancipation, a trial court finding that a child was emancipated as of a certain arbitrary date ... is clearly erroneous.” Hirsch, 944 N.E.2d at 963.

Accordingly, we remand to the trial court to determine the proper date of Courtney’s emancipation. Using that date, the trial court must then recalculate the amount of child support Father overpaid in accordance with the portions of the Court of Appeals opinion that we summarily affirm.

II. Post-secondary Educational Expenses

The issue of whether Father should be required to contribute toward Courtney’s post-secondary educational expenses is distinct from the issue of the date of Courtney’s emancipation. Knisely v. Forte, 875 N.E.2d 335, 340 (Ind.Ct.App.2007). Indiana Code section 31-16-6-2 (2008) gives guidance regarding contribution toward post-secondary educational expenses, listing certain factors to take into account, such as “the child’s aptitude and ability,” “the child’s reasonable ability to contribute to educational expenses,” and “the ability of each parent to meet these expenses,” among other things. Furthermore, Child Support Guideline 8(b) lists expenses that may be included within a post-secondary educational expense order, such as tuition, books, lab fees, supplies, student activity fees, room and board under certain circumstances, transportation, car insurance, clothing, entertainment, and incidental expenses. This guideline also explicitly states that “[i]t is discretionary with the court to award post-secondary educational expenses and in what amount.” Child Supp. G. 8(b). It continues that the court should “weigh the ability of each parent to contribute to payment of the expense, as well as the ability of the student to pay a portion of the expense.” Id.

Here the record reflects that Courtney withdrew from her classes at Ivy Tech and then re-enrolled the following semester. The Court of Appeals addressed the propriety of requiring contribution to the post-secondary educational expenses “ ‘of a once discontinued but now resumed higher education.’ ” Hirsch, 944 N.E.2d at 965 (quoting Thiele v. Thiele, 479 N.E.2d 1324, 1329 (Ind.Ct.App.1985)). Thiele listed various factors for a court to consider in this circumstance:

Among the facts which may be considered in making such a determination are — (1) the length of time elapsed between the interruption and resumption of the educational program; (2) the age of the child; (3) the financial ability of the parent or parents; (4) whether the child and the parents intended to abandon permanently the program of higher education when withdrawing from it; (5) the reasonableness of the child’s present desire and purpose in returning to an institution of higher learning; (6) the activities of the child, particularly in relation to employment or business during the hiatus; (7) other provisions made for the child by the parent or parents; (8) the station in life of the child and the parent or parents; (9) any other facts or circumstances reasonably related to the need of the child for such education, the ability of the parent or parents to provide such education, and the reasonableness or equity in requiring the parent or parents to provide educational expenses.

479 N.E.2d at 1329. The trial court found that Father was not , responsible for educational expenses regarding Courtney after hearing testimony from Father, Mother, and Courtney. A majority of the Court of Appeals reversed, stating that the record did not support “any reasonable, equitable basis upon which to relieve Father of any and all obligation to assist Courtney in her post-secondary educational pursuits.” Hirsch, 944 N.E.2d at 966. The majority noted that although the record showed that Father’s income had decreased, he had expressed his “willingness” to contribute to Courtney’s educational expenses. Id. The majority also noted that although Father had commented that he believed Courtney intended to abandon her education after she withdrew from classes, there was “scant indication” that this was really Courtney’s intention. Id. The majority then listed other factors that supported a conclusion that Father should be obligated to pay for Courtney’s post-secondary educational expenses and determined that “the trial court abused its discretion in terminating Father’s obligation.” Id.

Judge Baker dissented, believing that the majority “necessarily” reweighed the evidence on this issue. Id. at 972 (Baker, J., concurring in part and dissenting in part). He noted that the trial court heard evidence that Courtney was able to work through two years of high school, that she had received a 100% tuition scholarship, and that she had held two jobs following graduation. Id. He further noted that the trial court heard testimony on how Father’s income had decreased from $111,000 in 2008 to $50,000 as of September 2009. Id. Finally, the dissent noted that “Father also testified that Courtney told him, after withdrawing from all classes after two weeks, that college was not for her and she did not foresee returning to college.” Id. Finding that all of that evidence was relevant to the factors set forth in Indiana Code section 31-6-6-2, the controlling statute, the dissent would have affirmed the trial court’s ruling on the issue. Father agrees with the dissent’s analysis, stating that the trial court was within its discretion when it considered and applied the evidence before making its ruling.

An appellate court reviews a trial court’s decision to order the payment of post-secondary educational expenses for an abuse of discretion. Carr v. Carr 600 N.E.2d 943, 945 (Ind.1992). Accordingly, we affirm the trial court unless the decision is against the logic and effect of the facts and circumstances before the trial court. Id.

In this case, we cannot conclude that the trial court abused its discretion. Although the majority’s analysis of the evidence is intricate, we believe that the analysis is simply a reweighing of the evidence, which is not permitted under the applicable standard of review. The dissent is correct in noting the evidence supported the trial court’s decision on this issue, and we should not second-guess the trial court’s determination when it is in the best position to judge the credibility of witnesses. Accordingly, we affirm the trial court’s ruling on post-secondary educational expenses.

Conclusion

We affirm the trial court’s ruling that Father is not obligated to contribute to Courtney’s post-secondary educational expenses. We remand to the trial court to determine the correct date of Courtney’s emancipation.

DICKSON, C.J., and MASSA, J., concur.

SULLIVAN, J., dissents with a separate opinion in which RUCKER, J., concurs.

SULLIVAN, Justice,

dissenting.

Believing that the Court has impermissi-bly rewritten and incorrectly interpreted Indiana Code section 31-16-6-6,1 respectfully dissent.

The Court says that when the circumstances described in Indiana Code section 31 — 16—6—6(a)(3) exist, then a child is emancipated for purposes of Indiana law. This is not correct. E.g., Sexton v. Sedlak, 946 N.E.2d 1177, 1186-87 (Ind.Ct.App.2011), trans. denied; Carpenter v. Carpenter, 891 N.E.2d 587, 593 (Ind.Ct.App.2008); Marshall v. Marshall, 601 N.E.2d 9, 12 & n. 2 (Ind.Ct.App.1992) (interpreting former version of statute); Brancheau v. Weddle, 555 N.E.2d 1315, 1316-17 & n. 1 (Ind.Ct.App.1990) (same). Contra Butrum v. Roman, 803 N.E.2d 1139, 1144 (Ind.Ct.App.2004). trans. denied; Connell v. Welty, 725 N.E.2d 502, 505 (Ind.Ct.App.2000). Indiana Code section 31-16-6-6 sets forth three situations in which a child support obligation does not terminate at age 21. Subsection (a)(1) specifies that one of those situations is emancipation, and subsection (b) defines “emancipation.” Ind.Code § 31-16-6-6(a)(l), (b) (2008). If the Legislature intended the circumstances of subsection (a)(3) to constitute emancipation, it would have either included those circumstances within subsection (a)(1) or defined “emancipation” in subsection (b) to include them.

That having been said, I acknowledge that with the Legislature’s recent action reducing the age of emancipation from 21 to 19 effective July 1, 2012, see Pub. L. No. 111-2012, §§ 1-2, 2012 Ind. Acts 1590, 1590-91 (amending I.C. §§ 31-14-11-18 and 31-16-6-6), the consequences of the Court’s decision are likely to be insignificant.

RUCKER, J., concurs.

      . We note that Indiana Code section 31 — 16— 6-6 has been amended by Public Law 111-2012, and the amendments take effect on July 1, 2012. The amendments change the automatic age of emancipation from twenty-one to nineteen. See 2012 Ind. Legis. Serv. P.L. 111-2012 (West). The amendments, however, do not affect our analysis in this case.

      .The trial court’s findings related to Courtney’s emancipation were as follows:
      Courtney Oliver graduated high school in the spring of 2009. She routinely was employed during her Junior and Senior years of high school with the consent of [Mother], the custodial parent in this matter. Courtney has not completed any post-high school educational classes since her graduation from high school in the spring of 2009, although she is currently enrolled in classes at Ivy Tech. It remains uncertain as to whether she will finish those classes she is currently enrolled in. Courtney moved out of [Mother's] home and is currently co-habitating with her boyfriend. She moved out of her mother’s home on or about December 10, 2009. [Mother] stipulated under oath that she agrees that Courtney was emancipated for child support purposes as of December 10, 2009. The Court, however, finds that since Courtney had graduated from high school and had not been engaged in any post-high school educational pursuits in which she completed any classes for more than four months subsequent to her graduation from high school, that Courtney is emancipated effective the date of the filing of [Father’s] petition requesting such emancipation on September 23, 2009. Subsequent to her graduation from high school, Courtney worked at both L.A. Fitness and Big League Barbers, and had the capacity to work at least two jobs to provide for her own support.
      Besides the fact that the trial court’s findings above track the requirements of subsection (a)(3) of Indiana Code section 31-16-6-6, we also note that subsections (a)(2), (b)(1), and (b)(2) are inapplicable to this case, as Courtney is not alleged to be incapacitated, in the military, or married. Furthermore, subsection (b)(3) would not support a finding of emancipation as of September 23, 2009, because Courtney was living with Mother at that time and was most likely under her "care or control.”

      . See, e.g., Sexton v. Sedlak, 946 N.E.2d 1177, 1187 (Ind.Ct.App.2011), trans. denied ("The real question addressed by the trial court and argued by Father is not whether [Child] is emancipated, but rather whether the requirements of Section 31 — 16—6—6(a)(3) for termination of child support are satisfied.” (footnote omitted)); Carpenter v. Carpenter, 891 N.E.2d 587, 593 (Ind.Ct.App.2008) ("Subsection (a)(3) does not deal with the ‘emancipation’ of a child; it merely identifies circumstances under which our legislature has determined a parent's obligation to pay child support should terminate.”); Marshall v. Marshall, 601 N.E.2d 9, 12 n. 2 (Ind.Ct.App.1992) (stating that the subsection "does not define emancipation” but that "it terminates the parental obligation of support as a matter of law whether or not the court enters a finding of emancipation”); Brancheau v. Weddle, 555 N.E.2d 1315, 1317 n. 1 (Ind.Ct.App.1990).

      . See, e.g., Butrum v. Roman, 803 N.E.2d 1139, 1144 (Ind.Ct.App.2004), trans. denied (“According to [Indiana Code section 31 — 16— 6-6], there are four ways to establish emancipation, specifically subsections (a)(3), (b)(1), (b)(2), and (b)(3).”); Connell v. Welty, 725 N.E.2d 502, 505 (Ind.Ct.App.2000) (stating that "the party seeking to have a child declared emancipated prior to age twenty-one under the criteria of I.C. § 31-16-6-6(a)(3) bears the burden of proving the capacity of self-support” (emphasis added)).

      . This is assuming that the child is not incapacitated. See I.C. § 31 — 16—6—6(a)(2).

      . This conclusion does not conflict with this Court's decision in Dunson v. Dunson, 769 N.E.2d 1120 (Ind.2002), which evaluated a different subsection of the emancipation statute. Dunson focused on subsection (b)(3) of Indiana Code section 31-16-6-6, which states that a child is emancipated if the court determines the child "is not under the care or control of either parent.” I.C. § 31 — 6—6— 6(b)(3)(A). This Court disagreed with the view that subsection (b)(3) would allow a court to order emancipation if it found only that a child was not under the care and control of either parent. Dunson, 769 N.E.2d at 1123. This Court stated that the “language of subsection (b)(3), viewed in isolation, leads to the conclusion that neither self-support nor initiative of the child is required for emancipation” but that "both stare decisis and legislative acquiescence” support a different view. Id. at 1124. Ultimately, this Court determined that emancipation under subsection (b)(3) required both "the child’s initiative and the child’s self-support.” Id. at 1125. Underlying that conclusion was a concern that without those requirements, parents would be "permitted to 'divorce their children' and avoid paying child support simply by sending their children to live with a third party or, worse yet, just throwing the child out of the house.” Id. at 1124. These concerns would not be implicated by finding a child emancipated after the requirements of subsection (a)(3) are met.

      . The Court of Appeals ”note[d] that neither a child’s employment nor independent living outside a parent’s household necessarily means the child is emancipated.” Hirsch, 944 N.E.2d at 963 n. 5 (citing In re Marriage of Brown, 597 N.E.2d 1297, 1300 (Ind.Ct.App.1992)). The Court of Appeals nonetheless presumed that Courtney was emancipated as of December 10, 2009, "given Mother’s concession on appeal." Id. We agree that a child's employment or independent living would not automatically render a child emancipated. This is also true of a parent’s concession regarding a child's emancipation. Because of our disposition of this issue, however, we need not explore those points further.

      . The trial court made this determination after finding that Courtney had worked two part-time jobs simultaneously. There is no indication that the trial court believed that Courtney's capability of self-support was based on her ability to work two full-time jobs at the same time.

      . Indiana Code section 31-16-6-2 provides in full as follows:
      (a) The child support order or an educational support order may also include, where appropriate:
      (1) amounts for the child’s education in elementary and secondary schools and at postsecondary educational institutions, taking into account:
      (A)the child’s aptitude and ability;
      (B) the child’s reasonable ability to contribute to educational expenses through:
      (i) work;
      (ii) obtaining loans; and
      (iii) obtaining other sources of financial aid reasonably available to the child and each parent; and
      (C) the ability of each parent to meet these expenses;

        (2) special medical, hospital, or dental expenses necessary to serve the best interests of the child; and
      (3) fees mandated under Title IV-D of the federal Social Security Act (42 U.S.C. 651 through 669).
      (b) If the court orders support for a child’s educational expenses at a postsecondary educational institution under subsection (a), the court shall reduce other child support for that child that:
      (1) is duplicated by the educational support order; and
      (2) would otherwise be paid to the custodial parent.


text:
    In the Matter of Lora N. BARKES, Respondent.
    No. 64S00-1205-DI-243.
    Supreme Court of Indiana.
    July 17, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Count 1. Respondent was retained to handle several collection actions, but she took no action and falsely told the client that she had filed pleadings and obtained court dates.

Count 2. Respondent was retained by an Illinois attorney to collect an out-of-state judgment. She took no action but falsely and repeatedly told the attorney that she had taken such actions as appearing in court for a hearing and seeking a contempt citation.

At all relevant times regarding both counts, Respondent understood that her mental fitness and professional judgment was impaired by depression, yet she continued with the representations.

Other facts. The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; (3) Respondent is remorseful, evidenced in part by her self-imposed removal from practice for seven months; (4) the clients suffered no prejudice or harm in the outcome of their legal matters; (5) at the time of her misconduct, Respondent was suffering from depression, for which she is being treated.

Violation: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.3: Failure to act with reasonable diligence and promptness.
1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions.
1.16(a)(2): Failure to withdraw from representation when the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
3.2: Failure to expedite litigation consistent with the interests of a client.
8.4(a): Knowingly violating the above Rules of Professional Conduct.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
8.4(d): Engaging in conduct prejudicial to the administration of justice.

Discipline: The Court, having considered the submission of the parties, now approves the agreed discipline set forth below. The discipline imposed for Respondent’s misconduct would likely have been more severe had this matter been submitted without the Commission’s agreement that the proposed discipline is sufficient.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning August 28, 2012, with 60 days actively served and the remainder stayed subject to completion of 18 months of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:

(1) Respondent shall comply with mental health treatment as determined and monitored by the Indiana Judges and Lawyers Assistance Program.
(2) If Respondent violates her probation, the stay of her suspension may be vacated and she may be required to actively serve the balance of her suspension with or without automatic reinstatement.
(3)If Respondent is required to actively serve the balance of her suspension without automatic reinstatement, Respondent may be reinstated only through the procedures of Admission and Discipline Rule 23(4) and (18).

Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). Notwithstanding the expiration of the term of probation set forth above, Respondent’s probation shall remain in effect until it is terminated pursuant to Admission and Discipline Rule 23(17.1).

The costs of this proceeding are assessed against Respondent.

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.

SULLIVAN, RUCKER, and MASSA, JJ., concur.

DICKSON, C.J., and DAVID, J., dissent, believing that the Respondent’s misconduct involving deliberate dishonesty calls for a substantial period of unstayed suspension without automatic reinstatement.