Farmer v. Farmer
Decision Date | 19 September 2000 |
Docket Number | No. 45A05-0004-CV-145.,45A05-0004-CV-145. |
Citation | 735 N.E.2d 285 |
Parties | Robert FARMER, Appellant-Respondent, v. Susan FARMER n/k/a Susan Feliciano, Appellee-Petitioner. |
Court | Indiana Appellate Court |
Jeffrey D. Best, Highland, Indiana, Attorney for Appellant.
Laura J. Conyers, Thomas L. Kirsch & Associates, Munster, Indiana, Attorney for Appellee.
Robert Farmer appeals portions of the trial court's Amended Order on Citation and Visitation ("amended order") with respect to child support, visitation, and attorney fees. We affirm in part, reverse in part, and remand.
Farmer raises two issues, which we consolidate and restate as whether portions of the amended order are erroneous because it commingles the issues of child support, visitation, and attorney fees.
Farmer and his former wife, Susan Farmer n/k/a/ Susan Feliciano, have a thirteen-year-old daughter. Feliciano has custody of the child. On July 1, 1999, the parties appeared on all pending matters, including Feliciano's Petition for Rule to Show Cause for failing to pay child support and Farmer's Petition to Modify Visitation. A few weeks later, the trial court entered a contempt citation and visitation order.
On August 16, 1999, Farmer filed a Motion to Correct Errors Or, In The Alternative, Motion to Set Aside Order. The hearing on the Motion to Correct Errors was continued until March 14, 2000, after which the trial court entered the amended order. That order states in pertinent part:
Record pp. 38-41. This appeal ensued.
Farmer contends that portions of the trial court's amended order are erroneous because it intermingles the issues of visitation, child support, and attorney fees. Specifically, Farmer contends that the trial court abused its discretion by conditioning his visitation rights upon the payment of child support and attorney fees. Farmer also argues that the trial court abused its discretion because it threatens to revoke his suspended sentence, which was imposed for failing to pay child support, if he does not comply with visitation and does not make payments toward attorney fees.
We begin our analysis by addressing the attorney fee issue. In its amended order, the trial court states that Farmer's visitation rights will be terminated if he fails to make payments toward the judgment for attorney fees in favor of Feliciano's counsel. In addition, the amended order provides that Farmer's jail term for failing to pay child support will remain suspended as long as he makes payments toward the attorney fee judgment. Feliciano concedes that the trial court's amended order with respect to attorney fees is erroneous. It was improper for the trial court to condition visitation rights and the suspended sentence for contempt upon the payment of a debt to a third party. See Rendon v. Rendon, 692 N.E.2d 889 (Ind. Ct.App.1998)
( ); Pettit v. Pettit, 626 N.E.2d 444 (Ind.1993) ( ). Those portions of the amended order are erroneous.
We now review the remainder of the trial court's order. The problems with the amended order are two-fold. First, the trial court impermissibly conditions Farmer's visitation rights upon the payment of child support. This court has held numerous times that a parent may not interfere with visitation when the non-custodial parent fails to pay support. Moody v. Moody, 565 N.E.2d 388, 391 (Ind.Ct. App.1991); In re Truax, 522 N.E.2d 402, 406 (Ind.Ct.App.1988), trans. denied. Similarly, we have held that a parent may not withhold child support payments even though the other parent interferes with visitation rights. See, e.g., Rendon, 692 N.E.2d at 897
. The facts of these cases are somewhat distinguishable because they involve situations where one parent withheld child support when the other parent refused to permit visitation or where one parent withheld visitation when the other parent failed to pay support. None of those cases address a situation where the court threatened to terminate visitation rights if a parent did not pay child support. Despite these distinctions, however, the underlying principle espoused by those cases is still applicable to the case before us. Visitation rights and child support are separate issues, not to be commingled. See, e.g., Rendon, 692 N.E.2d at 897. A court cannot condition visitation upon the payment of child support if a custodial parent is not entitled to do so. See Moody, 565 N.E.2d at 391.
In so holding, we do not dispute the trial court's use of discretion in visitation matters and recognize its authority to restrict or terminate visitation rights of a parent under certain circumstances. Indiana Code Section 31-17-4-2 states:
The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child. However, a court shall not restrict a parent's rights unless the court finds that the visitation might endanger the child's physical health or significantly impair the child's emotional development.
Here, the trial court stated in its findings that "[i]n the event that [Farmer] fails to... pay all sums required by this Order for...
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