Blickenstaff v. Blickenstaff

• Decision Date: 05 June 1989
• Docket Number: No. 79A02-8710-CV-424,79A02-8710-CV-424
• Citation: 539 N.E.2d 41
• Court: Indiana Appellate Court
• Parties: Linda S. BLICKENSTAFF, Appellant, v. Kenneth L. BLICKENSTAFF, Appellee.

Page 41

539 N.E.2d 41

Linda S. BLICKENSTAFF, Appellant, v. Kenneth L. BLICKENSTAFF, Appellee.

No. 79A02-8710-CV-424.

Court of Appeals of Indiana Second District.

June 5, 1989.

Rehearing Denied July 10, 1989.

Phillip R. Smith, Smith, Helmerick & Smith, Lafayette, for appellant.

Carolyn S. Holder, Lafayette, for appellee.

SULLIVAN, Judge.

Linda S. Blickenstaff (Linda) appeals the denial of her petition to increase the amount of child support and the order which permitted Kenneth L. Blickenstaff (Kenneth) to select, at his sole discretion, four consecutive weeks during the summer months for custodial visitation. Linda also challenges the court's determination that she was in contempt for failure to honor the visitation rights of Kenneth and that she could purge that contempt by strictly complying with the modified visitation provisions of the order. In addition, Linda claims error in requiring her to provide health insurance for the children and in permitting Kenneth to claim the tax deduction for two of the children.

We reverse in part and affirm in part.

I VISITATION MODIFICATION

As to the visitation modification, Linda does not challenge the four consecutive week visitation during the summer. As she stated, "I really feel that it's the children's right. It's what they want." Record at 112. The bone of contention is that Kenneth has the unbridled discretion to pick any four contiguous weeks during the summer and Linda cannot object without Be that as it may, Linda has not persuaded us that the order is an abuse of discretion. This of course assumes that in exercising his discretion, Kenneth gives Linda sufficient notice prior to the selection of the four-week period to permit Linda to make suitable arrangements not only for the children to be available for that period but also to permit her to plan her own vacation period with the children. It also presupposes that the time and manner of the visitation period selection will not be adverse to the best interest of the children. See Swartzel v. Swartzel (1986) 4th Dist.Ind.App., 492 N.E.2d 71.

being in violation of the contempt purge order.

II CONTEMPT

Although Linda was found in contempt for sending or permitting one of the children to go to Texas without prior court authorization, thereby infringing upon Kenneth's visitation privileges, no sanction was imposed. The court merely directed that the contempt would be purged by Linda's compliance with Kenneth's modified visitation rights.

Unless set aside or further modified, the visitation rights afforded Kenneth by the order in question would have to be honored in any event. The contempt purge directive requires Linda to do nothing more than what the law requires her to do. See Stetina v. State ex rel. Medical Licensing Board (1987) 2d Dist.Ind.App., 513 N.E.2d 1234, 1239.

III DENIAL OF SUPPORT INCREASE

At the time of the dissolution decree in 1983, by agreement of the parties, Kenneth was ordered to pay support in the amount of $25 per week for each of three minor children then aged 1, 5 and 12. At that time Linda was not employed outside the home. Kenneth was a teacher in the Lebanon school system earning approximately $16,000 per year.

At the time of the hearing here involved, 1987, Linda was employed with a net weekly income of $180-$190. Kenneth had become a practicing attorney as of October, 1986, in addition to holding a real estate license as well as his teaching license. In 1987 he was staff counsel to the Indiana State Board of Accounts earning approximately $24,314 per year. Kenneth had remarried in January, 1984. His current wife, having a real estate license, was employed but, at the time of the hearing, was expecting their child. Kenneth had a law school student loan debt and had an additional source of income of $25 per month from property ownership. The undisputed evidence as to Linda's monthly budget reflected necessary expenses of $1053. The total support paid by Kenneth at $25 per week, per child, approximated $300 per month.

A request for a support reduction or increase must be considered in the light of I.C. 31-1-11.5-17 (Burns Code Ed.Repl.1987) which requires that there be changed circumstances so substantial and continuing as to make the original support amount unreasonable.

Clearly, and as conceded by Linda, a disparity in the respective incomes of the parties and/or an increased ability of the non-custodial parent to pay more in support, will not of themselves justify an order for increased support. Means v. Means (1987) 3d Dist.Ind.App., 511 N.E.2d 323; Hunter v. Hunter (1986) 4th Dist.Ind.App., 498 N.E.2d 1278; Branstad v. Branstad (1980) 1st Dist.Ind.App., 400 N.E.2d 167; But cf. In Re Marriage of Ferguson (1988) 1st Dist.Ind.App., 519 N.E.2d 735; Patrick v. Patrick (1988) 1st Dist.Ind.App., 517 N.E.2d 1234.

Neither is it permissible to determine the merits of a support modification petition solely upon the needs of the children. Halum v. Halum (1986) 3d Dist.Ind.App., 492 N.E.2d 30. The court must consider the totality of the circumstances. McCallister v. McCallister (1986) 2d Dist.Ind.App., 488 N.E.2d 1147.

It is apparent upon review, that the respective financial position of the parties, as well as the vastly increased earnings and potential earnings of Kenneth would indicate the propriety of a support increase assuming that other factors do not militate against such increase. See Holman v. Holman (1985) 3d Dist.Ind.App., 472 N.E.2d 1279, 1286.

To be sure, automatic support adjustment factors, such as the Consumer Price Index are appropriate but trial courts are not mandated to grant an automatic adjustment. Howard v. Reeck (1982) 2d Dist.Ind.App., 439 N.E.2d 727.

Although it may not be totally appropriate for a court to recognize a particular rate of inflation at a particular time without some authoritative recorded source of the information, it is certainly appropriate for the court to acknowledge that over a given period the general cost of living has or has not increased. See 29 Am.Jur.2d Evidence Sec. 78 (1967); 31A C.J.S. Evidence Sec. 101 (1964). This is nothing more than expecting the court to utilize its "everyday knowledge of facts in general." Belcher v. Buesking (1978) 3d Dist., 175 Ind.App. 322, 371 N.E.2d 417, 420.

It is apparent that the trial court did not utilize this information in exercising its discretion. It would seem that such consideration was virtually required by the necessity to take into account the totality of the circumstances. It is further apparent that the court did not consider the truism acknowledged in Crowe v. Crowe (1965) 247 Ind. 51, 55, 211 N.E.2d 164, 166-67:

"We judicially know that it takes more to support a child of ten years of age than it does one of nine months of age when the original order was made. Such a change in costs in the support of a child after ten years is a matter of common knowledge, ignoring any increase in the index registering the cost of living during the period of approximately ten years. We feel after a period of ten years, time alone has created a change in conditions as it affects support payments for a growing child to warrant a court to consider a petition for modification. Arnold v. Arnold (1947), 332 Ill.App. 586, 76 N.E.2d 335, 18 A.L.R.2d 1."

To be sure, this factor alone does not mandate an increase in support. It is, however, like the cost of living increase and the relative financial position of the parties, part of the totality of circumstances which...