Danner v. Danner
| Citation | 573 N.E.2d 934 |
| Decision Date | 27 June 1991 |
| Docket Number | No. 32A01-9007-CV-294,32A01-9007-CV-294 |
| Parties | William B. DANNER, Appellant-Respondent, v. Cheryl C. DANNER, Appellee-Petitioner. |
| Court | Court of Appeals of Indiana |
Douglass R. Shortridge, Indianapolis, for appellant-respondent.
Audrey K. Grossman, Treacy Grossman Sullivan & Jones, Indianapolis, for appellee-petitioner.
William B. Danner appeals the modification of the decree of marriage dissolution. We affirm in part, reverse in part, and remand.
1. Did the trial court abuse its discretion by denying new counsel's motion for a continuance of the April 30, 1990 hearing?
2. Did the trial court have authority to appoint a guardian ad litem and an expert for the minor children and to order William to pay their fees?
3. Did the court err in ordering William to pay the cost of psychological therapy and counselling for Cheryl although the dissolution decree did not provide for such payments?
4. Did the court err in ordering William to reimburse Cheryl for past medical bills of the children incurred subsequent to the dissolution decree but never presented to William until 1990?
5. Did the court commit error in not emancipating William's twenty-year old adopted daughter, Diane Danner?
6. Did a sufficient change of circumstances exist to support the trial court's modification of the dissolution decree regarding support, medical expenses, and visitation?
7. Did the court abuse its discretion in awarding Cheryl's attorney's fees?
On June 4, 1986, the court approved a settlement and property agreement entered by William and Cheryl and dissolved the marriage. The agreement directed William to pay child support, maintain medical insurance for the children, and pay all uninsured medical expenses. The agreement also contained a visitation clause which set forth William's rights to see the three children. Visitation had to be prescribed jointly by a mental health professional of the Jewish Board of Family Services, who represented Cheryl, and by Dr. Lawlor, who represented William. On September 29, 1987, William petitioned to remove the mental health care professional because he had not been permitted to visit the children at all. On March 7, 1988, the court responded by appointing a guardian ad litem for the children and ordered the parents to cooperate with the guardian. Later, the court appointed an expert on visitation issues related to alleged sexual abuse of children to assist the guardian.
On September 29, 1989, Cheryl filed a motion for modification of the dissolution decree and protective order. On December 15, 1989, after several continuances, the court set the hearing for April 30, 1990. On March 14, 1990, William obtained new counsel. On April 12, 1990, William petitioned to confirm the emancipation of Diane Danner, his twenty-year old adopted daughter. On April 19, William filed a motion to strike the appointment of the After the three day hearing which commenced on April 30, 1990 as scheduled, the court entered findings of fact and conclusions of law on June 19, 1990. The court noted the guardian's report which diagnosed the children as suffering post-traumatic stress disorder from abuse by William. William did not offer any psychological reports of his condition, but denied any mistreatment of the children. Relying upon the guardian's evidence and other testimony at the hearing, the court concluded visitation would impair the emotional development of the children. Pursuant to IND.CODE Sec. 31-1-11.5-24, the court denied William visitation.
guardian ad litem and his expert, which the court refused. On April 23, William filed a motion for continuance of the hearing, which the court also denied.
Cheryl and the children participate in psychological therapy. The court found that they should continue therapy for two years to be paid by William. Pursuant to I.C. Sec. 31-1-11.5-12(d)(2), the court also found that Diane was partially disabled and ordered continued child support for two years. Because William stopped paying support for Diane in January 1989, the court found William in arrears and ordered payment. Cheryl also submitted past medical and psychological counselling bills, totaling $26,368, for which the court ordered William to reimburse Cheryl.
The court ordered the guardian ad litem and his expert to petition for fees. The court stated that William would be required to pay these fees. The court found changed and continuing circumstances existed which required an upward adjustment of the child support payments. The court also ordered William to pay Cheryl's attorney fees of $7,550.
William appeals the modification, arguing the trial court abused its discretion on several issues.
William first contends the trial court abused its discretion in refusing to grant his motion for continuance of the April 30, 1990 hearing. William recognizes that the trial court has the discretion to grant or deny a continuance, which decision will not be overturned on appeal absent clear abuse of that discretion. See Strutz v. McNagny (1990), Ind.App., 558 N.E.2d 1103, 1108, trans. denied. If good cause is shown for the continuance, we will find the trial court abused its discretion in denying the motion. Id. The withdrawal of counsel does not entitle a party to an automatic continuance. The moving party must be free from fault and show that his rights are likely to be prejudiced by the denial. Koors v. Great Southwest Fire Ins. Co. (1988), 530 N.E.2d 780, 783, reh'g denied, (1989), Ind.App., 538 N.E.2d 259.
William contends that he is free from fault because his first attorney withdrew due to a tort action filed by Cheryl and the children. William further alleges that the denial prejudiced his preparation for the hearing because he did not have time to obtain experts. William's conclusory allegations fail to show prejudice. William's new counsel entered his appearance six weeks before the hearing which was sufficient time to secure experts. We do not find the trial court abused its discretion in denying William's motion for continuance.
William argues that the trial court did not have the authority to appoint a guardian ad litem or an expert and erred in ordering payment of their fees. 1 I.C. Sec. 31-1-11.5-21(e) allows the court to appoint professional personnel to advise the court on the child custody determination. The trial court's appointment of the expert clearly was proper under this section. I.C. Sec. 31-1-11.5-21(h) contemplates the appointment of a guardian ad litem and reads:
Issue Three
Next, William argues the court did not have authority to order payment of Cheryl's psychological counselling. William asserts that no statute permits a court to order payment of future medical expenses of a spouse. We note that the 1986 decree did not order spousal maintenance; and therefore, the court could not mandate maintenance later. See In re Marriage of Sharp (1982), Ind.App., 430 N.E.2d 417, 418 ().
Cheryl maintains that the court's order of payment of psychological counselling did not constitute an award of maintenance, but that the order is permitted pursuant to I.C. Sec. 31-1-11.5-12(b)(2) which provides:
"The child support order may also include, where appropriate:
. . . . .
(2) special medical, hospital or dental expenses necessary to serve the best interest of the child; ..."
Cheryl contends that her psychological counselling serves the children's needs and payment of such fees are proper under this statute. We believe Cheryl's interpretation of I.C. Sec. 31-1-11.5-12(b)(2) distorts the legislative intent. Under I.C. Sec. 31-1-11.5-12(b)(2), the legislature has provided for payment of expenses of the child. If the legislature intended to provide for payment of a spouse's expenses, it could have done so with express language. We find the court erred in ordering William to pay Cheryl's psychological counselling fees.
Issue Four
The trial court ordered William to reimburse Cheryl for past medical expenses of the children totalling $26,368. William challenges the court's order, alleging that Cheryl failed to submit timely copies of the medical bills pursuant to the dissolution decree. The settlement agreement provided that William would maintain medical insurance for the children and that he would pay future medical and dental expenses not covered by insurance. The agreement further provided that Cheryl "shall promptly cooperate and assist in the filing of all claims in connection with these costs and shall promptly submit copies of all statements to Husband." Record at 24. William contends that he properly maintained medical insurance for the children and that Cheryl's delay in not submitting the receipts until 1990 should preclude reimbursement.
Essentially, William contends Cheryl's claim for unpaid medical expenses was barred by laches. To succeed on this claim, William must show that Cheryl's delay in seeking payment of the past medical expenses was inexcusable, that...
To continue reading
Request your trial
-
Thompson v. Thompson
...the denial, and the withdrawal of an attorney does not automatically entitle a party to a continuance. Id. (citing Danner v. Danner, 573 N.E.2d 934, 937 (Ind.Ct.App.1991)). A careful review of the record indicates that the trial court was placed in an extraordinarily difficult position by t......
-
Litherland v. McDonnell
...from fault and show that his rights are likely to be prejudiced by the denial." Scott 741 N.E.2d at 746 (quoting Danner v. Danner, 573 N.E.2d 934, 937 (Ind.Ct.App.1991)). Likewise, the admission and exclusion of evidence falls within the sound discretion of the trial court, and is reviewed ......
-
Scott v. Crussen
...of the trial court, and its decision will not be overturned on appeal absent clear abuse of that discretion. Danner v. Danner, 573 N.E.2d 934 (Ind. Ct.App.1991), trans. denied. "The moving party must be free from fault and show that his rights are likely to be prejudiced by the denial." Id.......
-
Weichman v. Lazzaro
...denied (discovery); Nesses v. Specialty Connectors Co., Inc. (1990), Ind.App., 564 N.E.2d 322, 327 (sanctions); Danner v. Danner (1991), Ind.App., 573 N.E.2d 934, 937, trans. denied (continuance). An abuse of discretion occurs when the trial court's decision is against the logic and effect ......