FRIEDLANDER, Judge.
Robert Longest Sr. and Maribel Longest (collectively, the Longests) filed a
We affirm in part, reverse in part, and remand with instructions.
In 1998, twenty-one-year-old Matthew was living with his parents and participating in an informal, non-union apprenticeship to become a journeyman mason under his father's supervision. Matthew had begun learning the masonry trade from his father while still in high school, and after leaving high school in 1995, became his father's full-time apprentice. In December 1997, Robert Sr., who had previously been self-employed for a number of years as a journeyman mason, took a job with Wilhelm Construction Company as a mason. At that time, Matthew also began working for Wilhelm as a hod carrier.
On April 21, 1998, Robert Sr. was driving Matthew home after a day at work
On October 4, 1999, the Longests filed an action against the defendants asserting four claims: Count I, the estate's wrongful death claim under the GWDS; Count II, the Longests' wrongful death claim under the CWDS; Count III, Robert Sr.'s personal injury claim; and Count IV, Maribel's loss of consortium claim.
The trial court heard argument and took the matter under advisement before granting partial summary judgment in favor of the defendants on September 25, 2001. In its order, the trial court concluded that the Longests were not entitled to recover under the CWDS because Matthew was not enrolled in a vocational school or program at the time of his death, and that recovery under the GWDS was limited to medical and funeral expenses by the estate because the Longests were not Matthew's dependent next of kin. The trial court granted the Longests' request to certify its partial summary judgment order for interlocutory appeal, but this court declined to accept jurisdiction.
On June 4, 2004, the Longests filed a motion asking the trial court to set aside its partial summary judgment order, which the trial court denied on July 21, 2004. Thereafter, on September 15, 2008, the Longests filed a motion asking the trial court to "certify the issue of Matthew Longest['s] legal status for Interlocutory Appeal to the Indiana Court of Appeals." Appellant's Appendix at 122. The trial court granted the order, but this court again declined to accept jurisdiction.
On May 23, 2012, a bench trial was held regarding liability and damages, at which the Longests again asked the court to reconsider its prior partial summary judgment order. On October 22, 2012, the trial court entered its final order. In the order, the trial court denied the Longests' request to set aside the partial summary judgment order, concluding that the Longests "ha[d] not shown any additional evidence to persuade the court the decision was incorrect." Appellant's Appendix at 132. The trial court found in favor of the Longests on the issue of liability and entered an order on damages and attorney fees. The trial court concluded that the damages recoverable were limited to funeral and burial expenses, costs and expenses of administration of the estate, and attorney fees related to the administration of the estate. The Longests now appeal.
The Longests first argue that the trial court erred in granting summary judgment
The CWDS allows a parent to maintain an action against a person whose wrongful act or omission causes the injury or death of a child. I.C. § 34-1-1-8. The remedies available in such an action include damages for the loss of the child's services, love, and companionship, as well as medical, burial, and administrative expenses, including attorney fees. Id. At issue in this appeal is whether Matthew was a child for the purposes of the CWDS at the time of his death. The version of the CDWS in effect at the time of Matthew's death provided the following definition:
Id. This court has noted that the statutes creating actions for wrongful death are in derogation of common law, and must therefore be strictly construed. Deaconess Hosp., Inc. v. Gruber, 791 N.E.2d 841 (Ind.Ct.App.2003). Nevertheless, this court has been willing to interpret the language of the CWDS pertaining to enrollment in an institution of higher education or a vocational school or program "as liberally as it can and still remain within the clear meaning of the statute." Ledbetter v. Ball Memorial Hosp., 724 N.E.2d 1113, 1118 (Ind.Ct.App.2000) (citing Sweet v. Art Pape Transfer, Inc., 721 N.E.2d 311 (Ind.Ct.App.1999), trans. dismissed), trans. denied.
The trial court granted summary judgment against the Longests based on its conclusion that Matthew was not enrolled in an institution of higher education or a vocational school or program at the time of his death. On appeal, the Longests argue that Matthew's informal apprenticeship under his father's supervision constituted enrollment in a vocational program. In support of this contention, the Longests direct our attention to the designated affidavits of Robert Sr. and Edward Bickel, a former field representative for the local unit of the International Union of Bricklayers & Allied Craftworkers. In these affidavits, both Bickel and Robert Sr. attested that in order to become a mason, a person must complete an apprenticeship with a person or persons who practice the trade. They testified further that there are two types of apprenticeships. First, there are "[l]ess formalized (and usually nonunion) apprenticeship programs consisting exclusively of extensive-on-the-job training by a skilled mason." Appellant's Appendix at 61, 79. Both Robert Sr. and Bickel attested that there is no formal enrollment for this type of apprenticeship. Second, there are "[f]ormalized apprenticeship programs organized by the union,
Robert Sr. attested further that from 1995 until 1997, he was self-employed as a mason and Matthew worked full-time for him as his apprentice. Robert Sr. and Matthew both took jobs at Wilhelm in December 1997 — Robert Sr. as a mason and Matthew as a hod carrier. Although Matthew did not enroll in Wilhelm's union apprenticeship program, his informal apprenticeship was ongoing at the time of his death. The Longests argue that this informal, non-union apprenticeship was sufficient at least to create a genuine issue of material fact concerning whether Matthew was enrolled in a vocational school or program at the time of his death. In arguing that Matthew was not enrolled in such a program, the defendants note that Matthew "was not taking any classes"; they note further that Matthew had not enrolled in Wilhelm's apprenticeship program, which "would have involved classroom instruction, extensive record keeping, and enrollment in addition to on-the-job training." Appellee's Brief at 7, 8. The defendants argue further that "[w]hat the Longests' [sic] described as `an informal apprenticeship program' was not a `program' at all. The most that the Longests were able to show was that Matthew Longest was considering entering an apprenticeship at some point in the future." Id. at 10.
In sum, the defendants argue that some degree of formality and classroom instruction is required for a course of training to qualify as a vocational program for the purposes of the CWDS. The Longests disagree and direct our attention to Sweet v. Art Pape Transfer, Inc., 721 N.E.2d 311, which we find illuminating on this point. In that case, Sweet filed a CWDS claim following the death of her twenty-one-year-old daughter, Shawnee. Shawnee had been employed at the Trinity School of Natural Health, a non-profit Christian institution that was not accredited through or financially supported by the state or federal government. Trinity offered self-study programs in natural health, the successful completion of which would result in titles such as "Master Herbalist, Doctor of Naturopathy, and Master of Holistic Health." Sweet v. Art Pape Transfer, Inc., 721 N.E.2d at 312. Students in the programs answered a set of questions at the end of each section of their texts and sent their answers to Trinity to be graded, without any imposed deadlines. As an employee of Trinity, Shawnee was entitled to pursue the courses offered there free of charge and without filling out an enrollment application. Although Trinity's records did not reflect that Shawnee was enrolled as a student at the time of her death, she had received permission from the registrar to pursue the Master Herbalist course, obtained textbooks, and begun studying. Sweet v. Art Pape Transfer, Inc., 721 N.E.2d 311.
The trial court granted summary judgment for the defendants on Sweet's CWDS
Next, the court addressed whether Trinity could be classified as a "vocational school or program." Sweet argued that the self-study programs offered by Trinity were vocational because they prepared students "to advise clients about natural health in jobs with chiropractors and medical doctors, in health food stores, and with distributors of nutritional supplements." Id. This court agreed that the self-study programs were vocational for the purposes of the statute, relying in part on the language of a now-repealed statutory provision relating to public and private education, which broadly defined "vocational education" to include "any education the major purpose of which is to prepare a person for profitable employment." Sweet v. Art Pape Transfer, Inc., 721 N.E.2d at 314 (quoting Ind.Code Ann. § 20-10.1-1-11(a) (repealed by P.L. 1-2005, § 240)).
Although Sweet is factually distinguishable from the case as hand, we find its reasoning helpful here. We agree with that court's conclusion that "enrollment" does not necessarily require any written record, particularly where the circumstances indicate such records would be unnecessary or superfluous. Here, both Bickel and Robert Sr. attested that there is no formal enrollment process for nonunion, on-the-job apprenticeships like the one in which Matthew was participating. We decline to impose such a rigid requirement in this case, particularly in light of the fact that Matthew was learning the trade under the supervision of his own father. Rather, we conclude that in this context, to be "enrolled" in a vocational program means no more than to be actively participating in such a program. Robert Sr. testified that Matthew was continuously participating in the apprenticeship at the time of his death. Thus, provided that the non-union apprenticeship qualifies as a vocational program, we have little difficulty concluding that Matthew was "enrolled" for the purposes of the CWDS.
Turning now to the question of whether the apprenticeship qualifies as a "vocational school or program," we agree with the Sweet court that the phrase encompasses "any education the major purpose of which is to prepare a person for profitable employment." Id. (citation omitted). Unlike the defendants, we see no reason to impose a requirement that these educational programs contain a component of traditional classroom instruction. The courses at issue in Sweet were self-study courses that required students to obtain textbooks, study them, and complete a module of questions at the end of each chapter. Contrary to the defendants'
Moreover, we believe the legislature's decision to delay the age of majority for the purposes of the CWDS from age twenty until age twenty-three where the decedent is enrolled in an "institution of higher education or in a vocational school or program" reflects its intention to allow recovery when a decedent was in active pursuit of any of a broad range of educational goals — ranging from college degrees to trade designations and other, less traditional certifications like those at issue in Sweet. We believe that disallowing coverage based solely on a program's informality and focus on real-world, on-the-job training as opposed to classroom learning would ignore the practical realities of many courses of vocational study and exclude those in pursuit of a number of traditional trade designations from the operation of the CWDS. In light of the statute's broad language and express inclusion of vocational programs, we do not believe this to have been the legislature's intent.
None of this is to suggest, however, that merely adding an element of on-the-job training will transform what would otherwise be nothing more than a job into a vocational program. Here, Matthew was simultaneously working as hod carrier and pursuing his informal apprenticeship under his father's supervision. Provided Matthew successfully completed the apprenticeship and demonstrated the requisite skill, he would have attained the title of journeyman mason and been eligible for union certification. As Robert Sr. attested, "[w]hether working for me or for Wilhelm, and whether in the union's formal apprentice program or through the less formal, but equally accepted on-the-job training, Matthew was working toward the completion of his apprenticeship and becoming a mason." Appellant's Appendix at 63. Based on these facts, we conclude that the evidence most favorable to the Longests as the non-moving parties is sufficient to create a genuine issue of material fact as to whether the informal, non-union apprenticeship was a vocational program for the purposes of the CWDS.
We therefore conclude that there are genuine issues of material fact precluding summary judgment in favor of the defendants on the issue of Matthew's status as a child for the purposes of the CWDS.
Next, the Longests argue that the trial court abused its discretion in granting partial summary judgment on the issue of whether the Longests were Matthew's dependent next of kin for the purposes of the GWDS. The GWDS provides, in pertinent part:
I.C. § 34-23-1-1 (emphasis supplied). It is undisputed that Matthew left no widow or dependent children. Thus, in order for the Longests to recover under the GWDS, they must establish that they were Matthew's "dependent next of kin."
On appeal, the Longests argue that the designated evidence establishes that they were Matthew's dependents. In the context of wrongful death actions, our Supreme Court has held that "proof of dependency must show a need or necessity of support on the part of the person alleged to be dependent ... coupled with the contribution to such support by the deceased." New York Cent. R.R. Co. v. Johnson, 234 Ind. 457, 465, 127 N.E.2d 603, 607 (1955). This court has noted:
Deaconess Hosp., Inc. v. Gruber, 791 N.E.2d at 845 (quoting Wolf v. Boren, 685 N.E.2d 86, 88 (Ind.Ct.App.1997) (ellipsis in original)).
The designated evidence establishes that at the time of his death, Matthew was living in his parents' home. Both of his parents were able-bodied and gainfully employed, and they admit that they were not totally dependent upon him. Nevertheless, they argue that they were partially dependent on Matthew because Matthew paid his mother between fifty and one hundred dollars per week for rent, food, laundry, and to offset the expenses of him living there. In her deposition, Maribel testified that Matthew's financial contributions totaled five to six thousand dollars per year.
The Longests also point out that Matthew performed services for his mother. Specifically, Maribel testified in a deposition that "in the winter he'd bring wood down. He done things to my car. He'd run errands for me. He was a tall young man so, you know, he done a lot of things that I couldn't do, reaching, just ... Yes, I depended on him a lot." Appellant's Appendix at 73.
Services may be sufficient to establish dependency, but the contributions must be more than just a service or benefit to which the claimed dependent has become accustomed, and they "must go beyond merely helping other family members, even those who have relied on that assistance." Deaconess Hosp., Inc. v. Gruber, 791 N.E.2d at 846 (quoting Estate of Sears ex rel. Sears v. Griffin, 771 N.E.2d 1136, 1139 (Ind.2002)).
We find this court's decision in Chamberlain v. Parks, 692 N.E.2d 1380 (Ind.Ct. App.1998), trans. denied, instructive here. In that case, the decedent's parents sought recovery under the GWDS as dependent next of kin based on the personal services their son had provided them during his lifetime. The decedent's mother stated that she depended on the decedent for a variety of services, including carrying groceries and laundry, household cleaning and maintenance, yard work, working on cars, cooking, and running errands. The trial court granted summary judgment for the defendants on the issue of dependency, and this court affirmed, reasoning that the decedent's acts "amounted to no more than gifts, donations and acts of generosity expected of a son to whom free housing, most of his board, gasoline money and automobile insurance was provided." Id.
We reach a similar conclusion here. We acknowledge that Matthew regularly helped out around the house, and Maribel had undoubtedly come to expect and rely to some extent upon that help. But as our Supreme Court has noted, "[s]ervices must go beyond merely helping other family members, even those who have relied on that assistance." Estate of Sears ex rel. Sears v. Griffin, 771 N.E.2d at 1139. We therefore conclude that Matthew's actions amounted to no more than the sort of gifts, acts of generosity, and kindness to be expected of a son still living under his parents' roof. More is required to establish dependency for the purposes of the GWDS. Accordingly, we cannot conclude that the trial court erred in granting partial summary judgment in favor of the defendants on the Longests' GWDS claim, and we affirm that portion of the judgment.
Finally, the Longests argue that the trial court abused its discretion in limiting their recovery of attorney fees. We review a trial court's award of attorney fees for an abuse of discretion; thus, we will reverse only when an award is clearly against the logic and effect of the facts and circumstances before the court. Benaugh v. Garner, 876 N.E.2d 344 (Ind.Ct.App. 2007), trans. denied. Under the GWDS, the Estate may recover "for the necessary and reasonable costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney's fee[.]" I.C. § 34-23-1-1 (emphasis supplied).
As an initial matter, we note that the issue of attorney fees was not addressed during the bench trial in this matter; instead, the parties agreed to file post-trial submissions on the issue. From our review of the chronological case summary and the trial court's final order, it appears that the Longests filed a verified petition for attorney fees and an attorney fee affidavit on June 29, 2012, and the defendants filed a response in opposition on July 20, 2012, which was also accompanied by an affidavit. The Longests, however, have not favored us with copies of any of these documents. "It is an appellant's duty to provide an adequate record for review." Page v. Page, 849 N.E.2d 769, 771 (Ind.Ct.App.2006). Because the Longests have not presented us with a complete record, we are unable to review the evidence presented to the trial court on this matter. Instead, we must rely exclusively on the findings the trial court made in ruling on the Longests' request for attorney fees.
The trial court entered the following relevant findings and conclusions with respect to its attorney fee award:
Appellant's Appendix at 134-35.
On appeal, the Longests argue that the trial court erred in awarding attorney fees for only one-quarter of the billed hours based on its conclusion that attorney fees were recoverable for only one of the four claims asserted in the Longests' complaint.
On the record before us, we cannot agree. The record, such as it is, contains no support for the Longests' arguments in this regard. In fact, the record contains no evidence at all concerning the hours the Longests' attorneys spent in pursuit of this litigation, or the manner in which they spent them. Indeed, we are unable to even determine whether the Longests' position on appeal with respect to the purported indivisibility of the time spent on this matter is consistent with its position at trial. In light of our standard of review, we decline to simply take the Longests' statements on this issue at face value. Given the dearth of evidence, we cannot conclude that the trial court abused its discretion in this regard. See Stewart v. TT Commercial One, LLC, 911 N.E.2d 51, 59 (Ind.Ct.App.2009) (noting that "[w]here the amount of the fee is not inconsequential, there must be objective evidence of the nature of the legal services and the reasonableness of the fee"), trans. denied.
The Longests also assert that the trial court abused its discretion in reducing the billed rate of $350 per hour to an award of $150 per hour.
Judgment affirmed in part, reversed in part, and remanded with instructions.
ROBB, C.J., and CRONE, J., concur.