Estate of Brummett by Brummett v. Brummett
| Decision Date | 27 December 1984 |
| Docket Number | No. 2-284,2-284 |
| Citation | 472 N.E.2d 616 |
| Parties | ESTATE OF Clifford L. BRUMMETT, By Dorothy BRUMMETT, Personal Representative, Appellant, (Petitioner Below), v. Rose M. BRUMMETT, Appellee (Respondent Below). A 59. |
| Court | Indiana Appellate Court |
E. Kent Moore and Scott D. Butler, Cooke, Bache & Moore, Lafayette, for appellant.
Louis Pearlman, Jr., Pearlman & Chosnek, Lafayette, for appellee.
The estate of Clifford Brummett (Estate), by its Personal Representative, Dorothy Brummett, appeals the denial of its motion to revoke its child support obligation. The issue presented is whether the trial court abused its discretion in failing to revoke the support order, when, as a result of Brummett's death, the beneficiary of the order is receiving social security survivor's benefits.
We affirm.
On April 26, 1982, Dorothy Brummett, executrix of the estate of Clifford Brummett, petitioned to modify the child support obligation required of Clifford Brummett. The petition was denied.
The parties stipulated to the following facts:
1. That the parties were divorced on December 27, 1978 and the wife was granted the custody of Deborah Lynn Brummett, minor child born November 14, 1969.
2. That on the 27th day of September, 1979, said Decree of Dissolution was modified whereby the husband was required to pay the sum of $100.00 as support of said minor child commencing November 5, 1979 and a like sum on the 5th day of each month thereafter.
3. That the husband died on the 7th day of December, 1981 and that neither he nor his estate have paid any support pursuant to said Order of Support commencing with the payment due December 5, 1981.
4. That the wife has received Social Security payments for said child as a survivor of the husband in the sum of $407.20 per month, which payments commenced for the month of January, 1982.
5. That the wife was unemployed for the year 1981 until October, 1981 and her income for the months of October through December, 1981 was $1,200.00; that the wife is now employed on a guaranteed salary of $150.00 per week and her average net pay has been $159.00 per week for the year 1982.
Attachments to the stipulations showed that the appraised value of the estate was $92,267.82; $65,267.82 of that total was in bank accounts. The value of the business antiques was unknown and not included in the $92,267.82.
On appeal, a modification of a support order is reviewable only for an abuse of discretion. In re the Marriage of Wiley, 444 N.E.2d 315 (Ind.App.1983). It is only where the result reached is clearly against the logic and effects of circumstances before the court that an abuse of discretion will be found. Macauley v. Funk, 172 Ind.App. 66, 359 N.E.2d 611 (1977).
In the instant case, the Estate argues that the court's denial of its petition for modification was an abuse of discretion because the court's decision was against the logic and effect of the evidence before the court. The Estate argues it showed a four-fold increase in payments to the supported child without the child showing a corresponding increase in need.
When the court denied the petition in 1983, the controlling statute provided as follows:
Ind.Code Ann. Sec. 31-1-11.5-17 (Burns Supp.1984) (emphasis added). 1
The parties in the instant case agree that upon the death of the parent obligated to pay support, the predicate for a modification or revocation is a showing that the modification is "just and appropriate under the circumstances." At this time we find no reason to disagree with their interpretation of the statute.
Unfortunately, the legislature failed to enumerate factors it considered relevant in a trial court's determination of what action is just and appropriate under the circumstances. However, the statutory language offers some guidance. First, it provides that only the estate of the obligated parent may petition for modification or revocation. This limitation leads us to conclude evidence which typically is offered as a basis for an increase in the dependent child's needs or a decrease in the custodial parents resources, has the distinctly more limited purpose. Under Ind.Code Sec. 31-1-11.5-17 such evidence may only be considered to the extent it counterbalances evidence which, by itself, would otherwise justify a decrease in the amount of support, or a termination of support.
Second, the statutory language permits a lesser showing of "just and appropriate" as opposed to the "substantial change in circumstances" showing required for a modification by a living obligated parent. The lesser standard appears to leave the trial court with an even greater degree of discretion.
Left, as we are, we conclude there are several factors which merit consideration by a trial court in determining the justice and appropriateness of a support order. The most obvious are the statutory considerations of Ind.Code Ann. Sec. 31-1-11.5-12(a) (Burns Supp.1984).
"In an action pursuant to section 3(a), 3(b), or 3(c) [31-11.5-3(a), (b), or (c) ] of this chapter, the court may order either parent or both parents to pay amount reasonable for support of a child, without regard to marital misconduct after considering all relevant factors including:
(1) The financial resources of the custodial parent;
(2) Standard of living the child would have enjoyed had the marriage not been dissolved or had the separation not been ordered; [and]
(3) Physical or mental condition of the child and his educational needs ...." 2
Other appropriate factors include:
4) other financial benefits accruing to the supported child as a result of the death of the supporting parent (i.e. social security survivors benefits), 3 and 5) the child's needs.
This listing is not intended to be exhaustive, only illustrative.
The stipulated facts in the instant case present a close question. Nevertheless, the trial court could reasonably have concluded it was more just and appropriate to continue the support in the amount previously ordered. The trial court could reasonably have concluded the resources presently available to the supported child, Deborah, were significantly less than what would have been available if a dissolution of her parents marriage had not taken place. 4 Deborah lived with her mother, whose income was approximately eight thousand dollars in 1982. The child support payments (if paid) would have added only twelve hundred dollars to that total. The social security payments, which added forty-nine hundred dollars to the resources available to Deborah, only brought her closer to the standard of living she could have expected if her mother and her father, who left an estate valued at approximately one hundred thousand dollars, had not been divorced.
Furthermore, the trial court could reasonably have concluded there was not a provision for Deborah in the will because the facts stipulated by the parties did not include a reference to any such provision in Clifford Brummett's will. This conclusion is relevant because the statutory provisions that extend support obligations beyond the death of the supporting parent are commonly enacted to soften the harsh result of disinheritance after divorce. 5
Further, the trial court could have reasonably inferred a change in Deborah's needs between the time of the last support order and the date of her father's death. Two and one-half years had elapsed between the time of the last support order and the decision on the modification petition. Not only was Deborah older, with commensurate increased 6 expenses but also the cost of living had increased.
The existence of social security payments is analogous to situations in which a supported child earns extra money at a job, but not enough to give the child emancipated status.
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