Dorman v. Dorman

• Decision Date: 18 October 1968
• Docket Number: No. 768S108,768S108
• Citation: 251 Ind. 272,241 N.E.2d 50
• Parties: John Edward DORMAN, Appellant, v. Edna DORMAN, Appellee.
• Court: Indiana Supreme Court

Page 50

241 N.E.2d 50

251 Ind. 272

John Edward DORMAN, Appellant, v. Edna DORMAN, Appellee.

No. 768S108.

Supreme Court of Indiana.

Oct. 18, 1968.

Donald R. Ewers, Schnatter & Ewers, Jeffersonville, for appellant.

Howard J. Snyder, Pointer, Snyder, Paynter & Risinger, Jeffersonville, for appellee.

LEWIS, Chief Justice.

This is an appeal from the judgment of the Clark Superior Court in a proceeding brought by the appellant, John Dorman, to modify a divorce decree. The appeal was originally taken to the Appellate Court of Indiana and was transferred to this Court pursuant to Burns' Indiana Statutes, Anno., (1968 Repl.), § 4--214, and Supreme Court Rule 2--41 (1967). (Dorman v. Dorman (1968), Ind.App., 238 N.E.2d 492.)

On June 16, 1959, the Clark County Circuit Court awarded appellee Edna Dorman a divorce from appellant John Dorman. The parties' three (3) children, aged 10, 9 and 4 years, were placed in the custody of the appellee-mother with support awarded in the sum of Fifty ($50.) Dollars per week to be continued until the children attained the age of Eighteen (18) years, and then such sum to be reduced proportionately as each child attains such age. Subsequently, on November 7, 1961, the Circuit Court of Clark County reduced the support to the sum of Forty ($40.) Dollars per week. On July 1, 1967, appellant filed a petition no modify the divorce decree asking that the support payment be reduced proportionately in that two (2) of the children had reached the age of Eighteen (18) years. On July 24, 1967, appellee filed a petition to modify the divorce decree, asking that the support payments be continued in that the two (2) children were attending Indiana University.

The testimony given at the hearing on these petitions to modify the divorce decree was not recorded. Upon motion by the appellant, the Trial Court made the following findings of fact:

'1. Mary Lynne Dorman reached the age of eighteen (18) on July 23, 1966, and Alice Jane Dorman reached the age of eighteen (18) on August 19, 1967.

2. Both * * * have high academic grades and are college material. Both are honor roll students.

3. (Both) * * * have received scholarships which cover the entire cost of their school tuition.

4. Alice Jane Dorman is employed full-time during the months of June, July and August at a salary of $49.00 per week and is employed part-time during the months of September through May at an average weekly wage of $21.00.

5. Mary Lynne Dorman is employed during the months of June, July and August and earns $56.00 per week.

6. John Dorman is steadily employed with an average weekly take-home salary of $75.00 per week.

7. John Dorman has paid the sum of $40.00 per week pursuant to the Order of this Court and is current as of this date.

8. In addition to $40.00 per week support, John Dorman pays the insurance premium on his children's life insurance in the sum of $5.21 per week.'

Subsequent to the hearing on the petitions, the Clark Superior Court entered the following order:

'It is therefore considered, ordered and adjudged that the defendant, John Dorman, pay support in the sum of $40 per week from the beginning of September until the end of May each year, and that he pay support in the sum of $20 per week for the remainder of the year and that said schedule of payments be in effect so long as the two older children of the parties are full time college students and until said children reach the full age of 21 years, or upon completion of the requirements for a baccalaureate degree, or are married, whichever occurs first, and at which time said support shall be reduced to the sum of $20 per week year round.'

Appellant assigns as error the Trial Court's overruling of his motion for new trial. Appellant specifically argues that the judgment is:

1. Contrary to law in that it is not supported by the evidence; and

2. There was an error of law occurring at the trial and excepted to by the appellant, in that the Trial Court ordered the appellant to pay support when there was no obligation or duty to pay said support.

Appellant additionally argues that the support awarded by the Trial Court was in gross abuse of the sound discretion of that court.

The contentions of the parties to this litigation present two (2) intermingled questions, to-wit: Is support for a college education (more specifically: education beyond the twelfth (12th) year of education provided by the public schools), when warranted by appropriate circumstances, within the contemplation of Indiana's statutory provisions on support and custody, or within the purview of the common-law rule which renders a parent liable for the necessities supplied to his minor child?

The judicial climate has not, in years past, been readily receptive to an affirmative position on the above questions. See Middlebury College v. Chandler (1844), 16 Vt. 683, 42 Am.Dec. 537. This Court, as recently as 1959, pointed out that:

'The general rule in other States is that a college education is not a necessary required to be funished by a parent to his minor children as a matter of legal duty. Such duty requires only that he provide his child with an elementary and high school education. * * *' Haag v. Haag (1959), 240 Ind. 291, 304, 305, 163 N.E.2d 243, 248.

The statement of the Court in Haag, supra, is undoubtedly correct, if the 'general rule' refers to a mere head-count of the various jurisdictions. It appears, however, that of those jurisdictions that have faced the question squarely in recent years, only Pennsylvania has remained completely static in light of the changing demands for education in our society. A discerning review of the decisions rendered by the jurisdictions still tied to some degree to the 'general rule' uncovers two (2) significant factors for our consideration:

1. The determinations, including past Indiana decisions, follow stare decisis decisions which were rendered in a time when high school was available financially to a limited number of families, and college was practically unattainable to the average family. (It is clear that this trend is, today, reversed.)

2. In none of the decisions of the 'general rule' jurisdictions were there any legislative enactments which might have lended support to a judicial reversal of prior expressions of opinion. (In the instant appeal, there is a legislative enactment.)

We note that the following jurisdictions have directly included the expenses of a college education as an element of the support allowance: Hale v. Hale (1942), 55 Cal.App.2d 879, 132 P.2d 67; Hart v. Hart (1948), 239 Iowa 142, 30 N.W.2d 748; Clark v. Graves (1955), Ky., 282 S.W.2d 146; Titus v. Titus (1945), 311 Mich. 434, 18 N.W.2d 883; Lund v. Lund (1950), 96 N.H. 283, 74 A.2d 557; Straver v. Straver (1948), 140 N.J.Eq. 480, 59 A.2d 39; Cohen v. Cohen (1948), 193 Misc. 106, 82 N.Y.S.2d 513; Atchley v. Atchley (1945), 29 Tenn.App. 124, 194 S.W.2d 252; Jackman v. Short (1941), 165 Or. 626, 109 P.2d 860, 133 A.L.R. 887.

In light of the prominence of several of the jurisdictions above, and the dates of the decisions, we agree with what now appears to be an understatement in Haag v. Haag, supra, that:

'There is a recent tendency in certain jurisdictions to require contributions to a college education for minor children. * * *' (at page 305, 163 N.E.2d at page 249)

While at least one jurisdiction (Jackman v. Short, supra) has expressly criticized the reasoning of past (circa 1930) Indiana decisions on the question, we are of the opinion that Indiana has not remained static in relation to the growing prominence of higher education as a necessity for both this State's citizens and the State itself. The first expression of opinion in this State on the propriety of required support for a higher education was rendered in Morris v. Morris (1930), 92 Ind.App. 65, 69, 171 N.E. 386.

'* * * It is well known that there are worthy parents in all parts of the country, with sufficient means to do so, who do not send their children to college. We cannot say that each of them has failed in a legal duty to his child and to the state. * * * The legislative branch of our state government has enacted no statute making it a legal duty of a parent to give his child a college education, and this court will not hold that it is the duty of a parent to provide such education, under the guise that it is a necessary.' Morris, supra.

The legal position of Morris, supra, was reaffirmed in Hachat v. Hachat (1947), 117 Ind.App. 294, 71 N.E.2d 927. In 1959, this Court in Haag, supra, re-affirmed a portion of the Morris, supra, opinion, but indicated by citation and quotation of an American Law Reports Annotation, 56 A.L.R.2d 1209, that exceptions to the basic Morris Rule were recognized in other jurisdictions, and if sufficiently urged, could be recognized in Indiana. See, for example, Carey v. Carey (1961), 132 Ind.App 30, 34, 171 N.E.2d 487. The Court, in Haag, supra, stated:

'* * * However, courts * * * have taken 'into account various specific factors, such as the financial ability of the father, the ability and capacity of the child for college work, the nearness of the child to his majority, whether the child is self-sustaining or not, and the father's willingness to provide for such education, as shown by some agreement thereto on his part. In a few of the college education cases the courts have had occasion to consider the effect of particular statutory provisions.' 56 A.L.R.2d 1209.' Haag v. Haag (supra) 240 Ind. at page 305, 163 N.E.2d at page 249.

Although the arguments advanced in the various jurisdictions (as listed supra) are persuasive in favor of an inclusion of higher education under the appropriate circumstances as a factor in determining the allowance for support, we need not directly meet the common-law question. We do point out, however, that the language of the Morris (supra) case and the cases cited to support that decision, are not consistent with the...