Bendix v. Bendix

• Decision Date: 05 March 1990
• Docket Number: No. 71A03-8902-CV-70,71A03-8902-CV-70
• Citation: 550 N.E.2d 825
• Parties: In re the Marriage of Michele G. BENDIX, Petitioner-Appellant, v. William R. BENDIX, Respondent-Appellee.
• Court: Indiana Appellate Court

Page 825

550 N.E.2d 825

In re the Marriage of Michele G. BENDIX, Petitioner-Appellant, v. William R. BENDIX, Respondent-Appellee.

No. 71A03-8902-CV-70.

Court of Appeals of Indiana Third District.

March 5, 1990.

Thomas F. Grabb, South Bend, for petitioner-appellant.

Thomas P. Loughlin, David V. Bent, Bingham, Loughlin, Mick & Bent, Mishawaka, for respondent-appellee.

HOFFMAN, Presiding Judge.

Petitioner-appellant Michele G. Bendix (Wife) appeals from a trial court ruling that respondent-appellee William R. Bendix (Husband) was not in arrears in the payment of child support. The facts relevant to this appeal are summarized below.

Husband and Wife were married on July 4, 1964. Four children were born of the marriage: Lisa, Teresa, William and Eva. The marriage was dissolved on September 14, 1984. The trial court awarded custody of the children to Wife and ordered Husband to pay to the court clerk for the support and maintenance of the children the sum of $50.00 per week, per child.

In August of 1987, Wife filed a verified information in contempt, alleging that Husband was in arrears in the payment of child support. Husband responded with a verified petition for modification of support. The court ruled:

"Although much evidence was introduced concerning the alleged arrearage in the payment of support by the husband and there having been introduced into evidence the clerk's payment records, a large number of canceled checks showing payments made to wife directly and the the [sic] children directly, and the testimony was conflicting, but the Court having had the opportunity to see and hear both parties and recognizing the stormy relationship between them during the years since their marriage was dissolved and the problems arising from the children moving in and out of the family residence over the years, now finds for the husband and against the wife that there is no arrearage...."

Wife presents three issues on appeal:

(1) whether the trial court erred by crediting Husband for support payments made directly to the children;

(2) whether the trial court erred by crediting Husband for the time the children spent away from the home maintained by Wife; and

(3) whether the trial court erred by failing to award Wife a sum for home repair expenses and optical expenses.

The support obligation incurred by Husband from the date of dissolution through August 15, 1987 totalled $30,600.00. Records kept by the court clerk showed that Husband made payments during that period of time totalling only $13,800.00. Defending against Wife's claim of arrearage, Husband argued that he was entitled to credit for support payments made directly to the children in the sum of $5,485.39. The lower court apparently credited Husband for those payments.

As a general rule, an obligated parent will not be allowed credit for payments not conforming to the support order. O'Neil v. O'Neil (1989), Ind., 535 N.E.2d 523, 524. However, certain narrow exceptions to this general rule have been recognized. For example, in Castro v. Castro (1982), Ind.App., 436 N.E.2d 366, this Court indicated that an obligated parent may be entitled to credit for child support payments made directly to the custodial parent. The trial court may recognize and credit technically nonconforming payments of a judicially declared support obligation when proof is sufficient to convince the trier of fact that the required payments were actually made by the obligated party to the person entitled thereto. Id. at 368.

Support payments made directly to the children do not fall within the exception acknowledged in Castro, because the payments are not made to the person entitled to receive the funds. Certainly, the children are the intended beneficiaries of a support order. IND. CODE Sec. 31-1-11.5-12 (1988 Ed.). Yet the custodial parent is the person entitled to receive the support payments in his or her fiduciary capacity. See In re Marriage of Honkomp (1978), 178 Ind.App. 68, 69, 381 N.E.2d 881, 882.

A second exception to the rule regarding the denial of credit for nonconforming payments was articulated in Payson v. Payson (1982), Ind.App., 442 N.E.2d 1123. Credit for nonconforming payments may be allowed when the parties have agreed to the alternate method of payment. Id. at 1129. There was no evidence in the instant case that Wife agreed to the payment of support directly to the children. Therefore, the exception identified in Payson is inapplicable to the case at bar.

Practical considerations militate against the recognition of support payments made directly to the children. The custodial parent is entrusted with the duty and the right to dictate how the child support should be spent. Whitman v. Whitman (1980), Ind.App., 405 N.E.2d 608, 612. Credit for support payments tendered directly to the children would permit the obligated parent to usurp the right of the custodial parent under the support order to determine the manner in which support payments should be spent. Id. at 613.

An analysis of case law, as well as a reluctance to undermine the authority of the custodial parent in directing the expenditure of funds received as child support, compels the conclusion that the lower court erred in this case. Husband was not entitled to credit for support payments made directly to the children in the sum of $5,485.39. Accord: Breedlove v. Breedlove (1981), Ind.App., 421 N.E.2d 739, 744.

Husband also contended, and the trial court apparently agreed, that he was entitled to credit for the time the children spent away from the home maintained by Wife. Under limited circumstances, the obligated parent may be entitled to credit for the time the child spent with him or her.

"[A] narrow exception to the rule [requiring payments in conformity with the support order] may exist in a case where the obligated parent, by agreement with the custodial parent, has taken the child or children into his or her home, has assumed custody of them, has...