Hicks v. Smith

Decision Date19 January 2010
Docket NumberNo. 54A01-0904-CV-189.,54A01-0904-CV-189.
Citation919 N.E.2d 1169
PartiesMark E. HICKS, Appellant-Petitioner, v. Tammy L. (Hicks) SMITH, Appellee-Respondent.
CourtIndiana Appellate Court

Mark Inman, Indianapolis, IN, Attorney for Appellant.

William A. Goebel, Thomas D. Sarver, Goebel Law Offices, Crawfordsville, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issue

Mark Hicks appeals the trial court's judgment in favor of his ex-wife, Tammy Hicks, for child support arrearage. Hicks raises one issue for our review, which we restate as whether the trial court abused its discretion in awarding a judgment to Tammy. Concluding the trial court did not abuse its discretion, we affirm.

Facts and Procedural History

Mark and Tammy are the parents of one son, Brandon, born May 2, 1985. The parties' marriage was dissolved by decree entered August 10, 1989. Custody of Brandon was deferred and the parties agreed to a joint custody arrangement pending a court order determining custody. Prior to the trial court's entry of an order regarding custody, Mark made numerous allegations against Tammy that required investigation and upset the joint custody agreement, delaying permanent resolution of the custody issues. On March 20, 1992, the trial court entered an order granting Tammy sole custody of Brandon effective March 22, 1992, giving Mark "reasonable and liberal visitation," appellant's appendix at 26, and ordering Mark to pay child support of $47.00 weekly beginning on March 27, 1992. Mark absconded with Brandon on or prior to March 22, 1992.

While Mark and Brandon were absent from the jurisdiction, Mark did not pay child support as required by the March 20, 1992, order. On Tammy's motion, the trial court entered an order on April 30, 1993, finding Mark in contempt, holding sanctions for the contempt finding in abeyance until Mark appeared in court, and entering a judgment representing arrearage to date and attorney fees in the total amount of $3,029.00. On December 8, 1994, the order was amended to reflect a further arrearage of $4,418.00, for a total judgment of $7,447.00.

Mark was charged with a crime for absconding with Brandon. He remained a fugitive from justice until he appeared in court on August 21, 2008, to answer the pending criminal charges. Tammy subsequently filed a motion with the dissolution court seeking a decision on the sanctions stayed in the April 30, 1993, order; a motion for proceedings supplemental to collect the December 8, 1994, judgment plus interest; and a verified petition for support arrearage accrued since the December 8, 1994, judgment. Mark filed a motion for relief from the December 8, 1994, judgment and a motion in opposition to Tammy's motion for support arrearage, alleging in both that since Brandon had been in his sole care and custody since March 22, 1992, Tammy would be unjustly enriched by an award of support arrearage.

Following a hearing at which the parties stipulated Mark had made no child support payments since March 20, 1992, and was fit and able to work during that time, the trial court sentenced Mark to 180 days in jail for the prior finding of contempt, subject to his ability to purge the contempt by paying the $7,447.00 judgment. The trial court ordered Mark to pay interest on the $7,447.00 judgment and be responsible for an additional arrearage from the date of the December 8, 1994 order to May 2, 2006, the date of Brandon's twenty-first birthday, of $27,965.00, plus interest. The trial court also denied Mark's motion for relief from judgment and motion in opposition to the petition for support arrearage, and further denied Mark's "request to have any and all money paid toward satisfaction of any of said judgments held in trust for the child." Appellant's App. at 65-66. Mark now appeals.

Discussion and Decision
I. Standard of Review

Decisions regarding child support matters are within the sound discretion of the trial court. Decker v. Decker, 829 N.E.2d 77, 79 (Ind.Ct.App.2005). We reverse a child support decision only if there has been an abuse of discretion or the decision is contrary to law. Id. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Norris v. Pethe, 833 N.E.2d 1024, 1029 (Ind.Ct. App.2005).

II. Nature of Arrearages

One of the purposes of child support is to provide a child with regular and uninterrupted support. Rendon v. Rendon, 692 N.E.2d 889, 897 (Ind.Ct.App. 1998). It has long been held the right to support lies exclusively with the child and a custodial parent holds the child support payments in trust for the child's benefit. Bussert v. Bussert, 677 N.E.2d 68, 71 (Ind. Ct.App.1997), trans. denied; see also Cox v. Cox, 25 Ind. 303 (1865). As a constructive trustee, the custodial parent is the trustee of the non-custodial parent's obligation to pay and may not contract away the benefits of the constructive trust. In re Hambright, 762 N.E.2d 98, 101-02 (Ind. 2002). In addition, once funds have accrued to the child's benefit, the trial court lacks the power to reduce, annul, or vacate the child support order retroactively. Ind. Code § 31-16-16-6(a); Whited v. Whited, 859 N.E.2d 657, 661 (Ind.2007). Thus, a party is generally required to make support payments in the manner specified in the child support order until the order is modified or set aside. Pickett v. Pickett, 470 N.E.2d 751, 754 (Ind.Ct.App.1984).

There are two exceptions to the rule prohibiting retroactive modification of support already accrued, however. First, retroactive modification is allowed where the parties have agreed to and carried out an alternate method of payment which substantially complies with the spirit of the decree. Whited, 859 N.E.2d at 662; see also Payson v. Payson, 442 N.E.2d 1123, 1129 (Ind.Ct.App.1982) (payments made directly to mother and to third parties for rent instead of through the clerk's office substantially complied with the decree). Second, retroactive modification is allowed where the obligated parent, by agreement with the custodial parent, "takes the child into his or her home, assumes custody, provides necessities, and exercises parental control for such a period of time" that a permanent change of custody is effected. Whited, 859 N.E.2d at 662; In re Marriage of Jackson, 682 N.E.2d 549, 552 (Ind. Ct.App.1997) (trial court abused its discretion in awarding $16,000 arrearage to mother where mother had acquiesced in children residing with father for six years and provided very little financial support or care for the children herself). Neither of these exceptions apply to this case, as Mark failed to pay any support as ordered, see Nill v. Martin, 686 N.E.2d 116, 118 (Ind.1997) (noting parties may agree to alternate method of payment but may not agree to alternate amount of payment), and Tammy neither agreed to nor acquiesced in Mark's custody of Brandon.

Several cases have arisen over the years that have provided the opportunity to refine these general rules. In Lizak v. Schultz, 496 N.E.2d 40 (Ind.1986), the mother, who was the custodial parent, died while the father owed a substantial arrearage on his child support obligation. The mother's husband, as personal representative of her estate, pursued the arrearage which existed on the date of her death and, eventually, a judgment in excess of $25,000 was entered against the father in favor of the estate. The father appealed, arguing because the mother was a fiduciary for the children, the arrearage was not an ordinary debt that could be collected by the personal representative. Before addressing the merits of father's argument, the court noted that father had been jailed repeatedly for failure to pay child support and had to be arrested to procure his attendance in court. Id. at 42. Describing the child's custodian as a trustee has "distant origins in our law" to differentiate between alimony — paid to the former spouse for his or her benefit — and child support — paid to the child's custodian regardless whether the custodian is also the child's parent. Id. (citing Stonehill v. Stonehill, 146 Ind. 445, 45 N.E. 600 (1896)). Using the term "trustee" describes the obligation of the custodian to seek enforcement of a child support order but is not meant to provide the non-paying parent an avenue to avoid paying child support. Id. The non-custodial parent has an ongoing obligation to pay child support and the custodian has an ongoing obligation to care for the child. A custodial parent who has advanced his or her own funds to provide food, clothing, and shelter to the child has discharged the trusteeship and "is entitled to collect the arrears from the non-custodian." Id. The court rejected the father's attempts to avoid his support obligation by forcing the custodian to prove the shortfall caused by arrearage had been made up by the custodian's own funds and concluded the personal representative, who was also the children's custodian was entitled to collect the debt the father owed to the mother. Id. at 43.

In Hambright, the court considered whether a child support arrearage is an asset of the custodial parent's bankruptcy estate. When the mother, who was custodian of the parties' three children, declared bankruptcy, the father was in arrears in excess of $19,000. The trustee of the mother's bankruptcy estate sought to intervene in the paternity action between the parties, acknowledging the mother held current and future child support in trust, but claiming the past child support arrearage was the mother's property. Litigation costs, the possibility of collusion, and the interest of the state in seeing children compensated as if the family had remained intact were "practical considerations and basic policy concerns" considered by the court in determining the issue of whether and to what extent the custodial parent has covered the child support shortfall "is not open to litigation." 762 N.E.2d at 103....

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