DeLong v. DeLong, 2--673A131

• Decision Date: 15 August 1974
• Docket Number: No. 2--673A131,2--673A131
• Citation: 161 Ind.App. 275,315 N.E.2d 412
• Parties: Rebecca DeLONG, Appellant, v. Robert DeLONG, Appellee.
• Court: Indiana Appellate Court

Page 412

315 N.E.2d 412

161 Ind.App. 275

Rebecca DeLONG, Appellant, v. Robert DeLONG, Appellee.

No. 2--673A131.

Court of Appeals of Indiana, Second District.

Aug. 15, 1974.

Donald K. McCart, Jr., Indianapolis, for appellant.

John S. Pearce, Noblesville, for appellee.

SULLIVAN, Presiding Judge.

This appeal is occasioned by a series of proceedings in the Superior Court of Hamilton County.

In September 1969, appellee (Husband) was granted an absolute divorce from appellant (Wife). The terms of the divorce decree awarded custody of the three minor children--Ellen (born 9--22--52), Bonney (born 8--27--54), and Valerie (born 2--28--60)--to the Wife, and Husband was ordered to pay a total of $400.00 per month in child support. ¹ The decree thus contemplated annual support payments totalling $4800.00. Within two weeks of the decree, Husband and Wife, submitted, and there was granted, a Joint Petition to Modify whereby custody of the children was given to Husband and the support order was dissolved.

In November of 1970, Wife, by Petition to Modify the Decree, sought to again obtain custody of the children. The court, on November 5, 1970, granted custody of the children to Wife, and ordered Husband to pay monthly support of $266.67 for Bonney and Valerie and annual education expenses and support of $3519.00 for Ellen. Therefore, Husband's total annual obligation was $6719.04 pursuant to this order.

In July, 1972, Husband filed a Petition to Modify the Decree seeking a reduction in support for Booney who was commencing her college education at Earlham College in Richmond, Indiana. In August of 1972, Wife counter-filed a Petition for Contempt Citation and Modification of the Decree alleging failure by Husband to make all support payments and education expense payments for Ellen, and seeking incremental adjustments in support for general cost of living expenses and educational expenses for Bonney and Ellen. Additionally, Wife sought a 'one-time' payment of.$1000.00 in order that Ellen might purchase an automobile for transportation to school. In sum, Wife sought to maintain monthly support of $133.34 for Valerie, and to obtain an annual college expense and support award of $1831.00 for Bonney ² and $3050.00 for Ellen. ³ Thus, the total annual obligation contemplated was $6461.08.

At trial a number of facts come to light which were susceptible to formulation of the court's ruling:

(1) Ellen had transferred from Hillsdale College to I.U.P.U.I. where the tuition expense was approximately $365.00 per semester.

(2) Ellen had secured educational loans (National Defense Student Loans) in the sum of $1200.00 and Bonney secured a similar loan in the amount of $400.00. Payment on these loans are deferred until nine (9) months following college graduation or other cessation of academic studies.

(3) Both Ellen and Booney were excellent students, and, through academic industry, had obtained superior grades.

(4) Wife, with similar industry, was nearing completion of her undergraduate studies at I.U.P.U.I. and ready to assume an occupation in life. During this period, Wife had engaged in various employments, part and full time, in order to meet the total family needs.

(5) Both Ellen and Booney regularly worked during their summer vacations in order to defray some of their expenses.

(6) Husband's gross income had increased from over $22,000.00 in 1969 to over $25,000.00 in 1972.

(7) Husband, in 1970, had remarried, and thereby, acquired a 'new' and existing family of five children. Further, the Husband's second wife received a total of $20.00 per week support for all five of her children; and, at the time of trial, appellee and his second wife were expecting a child of their own.

The court's judgment here appealed was entered January 26, 1973. It granted Husband's Petition to Modify and denied Wife's. Husband was required to pay $133.33 per month for the total support of Valerie; and the tuition of Bonney and Ellen, not to exceed $365.00 per semester per child; and books and supplies for Bonney and Ellen, not to exceed $65.00 per semester per child; and a food allowance of $245.00 per semester per child. Graphically, and for purposes of clarification, the court's order may be translated into annual maximum payments as follows:

                (a)   Valerie--$133.33 X 12
                        months                    $1,599.96
                (b)   Bonney
                        $730.00  Tuition at
                                   Earlham
                         130.00  Books and
                                   Supplies
                         490.00  Food Allowance    1,350.00
                (c)   Ellen
                        $730.00  Tuition at
                                   IUPUI
                         130.00  Books and
                                   Supplies
                         490.00   Food Allowance   1,350.00
                      ---------                   ---------
                Total Annual Obligation                      $4,299.96
                                                             ---------
                

The court also ordered:

'. . . that in the event any of the costs for tuition, costs for school books and related supplies, and/or board or food costs are covered, discharged, paid, or are non-existent because of the obtaining of any scholarship or scholarships for or by either Ellen DeLong or Bonney DeLong, then Plaintiff is not required to pay for any expense or item otherwise ordered herein which is covered, discharged, paid, or is non-existent because of such scholarship or scholarships; . . ..'

Further, the court ordered that Husband's obligation to provide support and college expenses terminate automatically upon each child reaching age twenty-one (21); that such obligation for educational expenses was effective only two semesters of each academic school year, and that Husband pay $100.00 to Wife's attorney for attorney's fees.

Wife timely filed her Motion to Correct Error which was overruled on March 14, 1973. On March 26, 1973, Wife filed a Petition for Funds with Which to Prosecute an Appeal and For Funds and Waivers for Said Purpose to Allow the Prosecuting of Said Appeal as an Indigent or Poor Person. This self-styled petition sought to require Husband to pay the expense--including attorney's fees, record and transcript costs, clerk's costs, filing fees, and preparation of briefs--of Wife's appeal.

The court heard evidence with respect to the parties' relative financial ability to pay appeal expenses, declared Wife to be financially unable to provide appeal costs, but denied her petition. Wife then filed a Motion to Correct Errors directed to that ruling which the trial court overruled.

Both causes have been consolidated in this one appeal.

The contentions presented are as follows:

(1) That the court's ruling granting Husband's modification petition and denying Wife's petition was excessive and unnecessary, contrary to law, and contrary to the evidence.

(2) That the court's ruling on Wife's Petition for Contempt was contrary to law and contrary to the evidence.

(3) That the court's order on the petition for modification is vague, uncertain, and incapable of performance.

(4) That the award of $100.00 for attorney's fees is contrary to the evidence, and constitutes an abuse of discretion.

(5) That the trial court erred in denying her Petition for Funds With Which to Appeal.

I.

TRIAL COURT RULING ON PETITIONS TO MODIFY WAS NEITHER AN

ABUSE OF DISCRETION NOR CONTRARY TO LAW OR EVIDENCE

Appellant-Wife asserts that the trial court erred in granting appellee-Husband's Petition to Modify and in denying her Petition to Modify. The court's order, Wife contends, is excessive in that Husband's petition requested a support adjustment as to Bonney only, whereas the court in fact, decreased the support allotment for both Bonney and Ellen. Further, Wife asserts that the court's ruling was contrary to law and contrary to the evidence. The essential question presented is the propriety of the trial court's adjustment in educational expenses for Bonney and Ellen.

The Legislature has provided statutory guidance in conferring continual jurisdiction and broad discretion in the trial courts over divorce proceedings:

'Guardianship, custody, support and education of children.--The court in decreeing a divorce shall make provision for the guardianship, custody, support, and education of the minor children of such marriage; and the court may require the father to provide all or some specified part of the cost of education of such child or children beyond the twelfth year of education provided by the public schools, taking into consideration the earnings of the father, the station in life of the parents and child or children involved, the aptitude of the child or children as evidenced by school records, the separate property of the child or children, and all other relevant factors: Provided, That the jurisdiction over the child or children shall remain in the court at all times during the child's or children's minority and shall not be lost because of the death of either parent.' IC 1971, 31--1--12--15 (Burns Code Ed.)

Concomitantly, the Indiana courts have consistently reiterated the nature and scope of the trial court's discretionary power in these proceedings. Marshall v. Reeves (1974), Ind., 311 N.E.2d 807; Lipner v. Lipner (1971), 256 Ind. 151, 267 N.E.2d 393; Dorman v. Dorman (1968), 251 Ind. 272, 241 N.E.2d 50; Bill v. Bill (1972), Ind.App., 290 N.E.2d 7489; Chaleff v. Chaleff (1969), 144 Ind.App. 438, 246 N.E.2d 768; Dragoo v. Dragoo (1962), 133 Ind App. 394, 182 N.E.2d 434; Smith v. Smith (1953), 124 Ind.App. 343, 115 N.E.2d 217; Poppe v. Poppe (1944), 114 Ind.App. 348, 52 N.E.2d 506.

In defining the scope of the court's discretion, the Dragoo court stated:

'. . . No settled rule can be invoked to control the discretion of the court in granting support for the children in a divorce action . . .. The amount of support is based on the necessities considering the station in life of the parties and the particular facts and circumstances in the case, including the amount of the husband's property and his ability to earn money . . .. While the...