Holman v. Holman, 3-283A35

Docket NºNo. 3-283A35
Citation472 N.E.2d 1279
Case DateJanuary 14, 1985
CourtCourt of Appeals of Indiana

Page 1279

472 N.E.2d 1279
Donna M. HOLMAN.
No. 3-283A35.
Court of Appeals of Indiana,
Third District.
Jan. 14, 1985.

Page 1282

David M. Hamacher, Hamacher & Hamacher, John C. Skinner, Crown Point, for appellant.

Jay A. Charon, Robin D. Pierce, Spangler, Jennings, Spangler & Dougherty, P.C., Merrillville, for appellee.


On November 10, 1980 the Lake Superior Court dissolved the marriage of James G. Holman (the husband) and Donna M. Holman (the wife). The court awarded the custody of the couple's three children to the wife. Among other things, the court ordered the husband to pay: child support in the amount of $105.00 per week, 1 all reasonable and necessary medical, dental, hospital, optical and pharmaceutical expenses, the cost of parochial school and hot lunches for the couple's oldest child, and one-half of the mortgage, taxes and insurance on the real estate owned by the parties. The court awarded the wife the exclusive use and possession of the real estate. Neither party appealed this order.

On June 1, 1981 the wife filed with the court her "Petition for Modification" requesting the court to increase the husband's support obligation by $280.00 per month. On November 19, 1981, after a hearing on the petition, the court fixed the husband's support obligation at $40.00 per week for each child, or $120.00 per week total. Neither party appealed this order modifying the original dissolution decree.

On March 17, 1982 the husband filed his "Petition for Temporary Modification" alleging that he had been laid off from his full time job at U.S. Steel and that he was therefore unable to meet his support obligation. On July 26, 1982 the wife filed her "Petition for Rule to Show Cause" asking the court to order the husband to show cause why he should not be held in contempt for his failure to pay the full amount of support as previously ordered by the court. On November 30, 1982 the court entered its order on these petitions. The court:

1. Reduced the husband's support obligation to $100.00 per week;

Page 1283

2. Reaffirmed the husband's mortgage payment obligation and gave him thirty days to satisfy any arrearages in those payments;

3. Found the husband to be in arrears with his support payments in the amount of $1,238.00 and with medical bills in the amount of $134.00 and ordered him to satisfy the arrearage with payments of $10.00 per week;

4. Found the husband in contempt for failing to keep current with the support payments pursuant to the court's previous orders and sentenced him to ten days in jail, suspending the sentence on the condition that the husband comply with current order of the court;

5. Found that the husband had not paid his daughter's parochial school tuition and certain medical bills as the previous orders had required and ordered him to satisfy those obligations; and

6. Ordered the husband to pay $3.75 per week for school lunches for his daughter in parochial school.

On February 3, 1983 the court held a hearing on the wife's petition for appellate attorneys' fees. After that hearing, the court ordered the husband to pay the wife $4,500.00 as preliminary appellate fees for the use and benefit of her attorneys.

The issues the husband raises on appeal are as follows:

I. Did the trial court err when it found the husband in contempt of the court's support order?

II. Were parts of the dissolution decree entered by the court on November 10, 1980 outside of the court's jurisdiction?

III. Did the trial court err in its order of November 30, 1982 in any of the following ways:

A. By inadequately reducing the amount of support;

B. By entering a support order which constituted de facto maintenance of the wife;

C. By determining the amount of the husband's support arrearage as of the date of the final order instead of the date of the husband's petition or the date of the hearing on the petition?

IV. Did the trial court err in awarding $4,500.00 of preliminary appellate attorneys' fees to the wife?

I. Contempt

The court found "that the husband is in violation of this Court's Order for the payment of support and that he is in contempt of this Court's Order in that regard." The court then proceeded to state the amount by which the husband had failed to meet the court's weekly support order and sentenced him to ten days in jail. The court suspended the sentence on the condition that the husband comply with the court's order, including paying $10.00 per week to the wife for the arrearage in child support.

IC 34-4-7-3 provides "[e]very person who shall be guilty of any wilful disobedience of ... any order lawfully issued by any court of record ... shall be guilty of an indirect contempt of the court from which such ... order shall have issued." During the time the husband was in arrears with his child support payments, there was in effect a child support order requiring the husband to pay $120.00 per week to the wife for the support of the children. Over a twenty-five week period between March 1, 1982 and August 20, 1982, the husband paid the full amount of support only seven times; all other weeks he paid from $40.00 to $80.00.

The statement of the evidence shows the husband admitted he was in arrears. 2 However he asks us to reverse the court's finding of contempt arguing that the evidence shows his failure to pay was not

Page 1284

wilful. 3 In support of his argument he offers the fact that he did make partial payments of child support despite the reduction in his income due to his being laid off from his job at U.S. Steel.

It was for the court to weigh the evidence and determine whether or not the husband's noncompliance with the court's order was wilful. Whitman v. Whitman (1980), Ind.App., 405 N.E.2d 608. The husband had the burden of proving to the court that his failure to comply was not wilful or was otherwise excused. Isler v. Isler (1981), Ind.App., 422 N.E.2d 416; Slagle v. Slagle (1973), 155 Ind.App. 304, 292 N.E.2d 624. The court's finding against the husband is, in effect, a negative judgment which we will reverse only if the husband now establishes there is no evidence to support the court's conclusion. Isler, supra; Whitman, supra; Slagle, supra.

The evidence shows that the husband was laid off by U.S. Steel on February 26, 1982. One or two weeks thereafter, the husband began receiving unemployment compensation payment of $173.00 per week. He later began work at Wilson Iron Works where his net pay for a forty-hour week was $219.00 although, with overtime and a reduction in the taxes withheld from his pay, he had at least one paycheck for $327.18 net. There were three weeks during the period from February 26, 1982 to November 30, 1982 when the husband was called back to work at U.S. Steel. There was also evidence that the husband made deposits in the bank from March through July 1982 totalling $7,854.00. He explained that $2,518.00 of that amount was money that had been loaned to him. Despite his reduction in pay and the other obligations imposed on him by the court's original dissolution decree, there was no evidence that the husband was financially unable to meet the support obligation or to support himself satisfactorily.

During the time the arrearages grew, the husband was under court order to pay child support in the amount of $120.00 per week. This order was in effect until its terms were modified pursuant to a subsequent order. Whitman, supra. We are sympathetic to the problems the husband faced when his income was reduced and appreciate that the husband did not ignore his obligation altogether. However there was evidence from which the court could conclude that the husband did wilfully disobey the court's order. We accordingly find no error in the court's finding of contempt.

II. Validity of original decree

Having failed to appeal the court's original dissolution decree, the husband now attempts to collaterally attack parts of that decree by alleging the court was without jurisdiction to make certain orders. On the date the court entered its decree, IC 31-1-11.5-12 provided that in an action for the dissolution of a marriage,

"(a) ... the court may order either parent or both parents to pay any 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;

(3) physical or mental condition of the child and his educational needs; and

(4) financial resources and needs of the noncustodial parent.

(b) Such child support order may also include, where appropriate:

(1) sums for the child's education in schools and at institutions of higher learning, taking into account the child's aptitude and ability and the ability of the parent or parents to meet these expenses; and

Page 1285

(2) special medical, hospital or dental expenses necessary to serve the best interests of the child."

The husband reads section 12(b)(1) to preclude the court from ordering him to pay for his daughter's parochial school education including her school lunches, an obligation which the court reaffirmed in its order of November 30, 1982. He reasons that the phrase "education in schools and at institutions of higher learning" excludes education in elementary or secondary schools because they are not schools of higher learning. A clear reading of the statute itself belies the interpretation offered by the husband.

Section 12(a)(3) requires the court to consider the educational needs of the child when it determines a reasonable amount of support for the child. Section 12(b)(1) goes on to permit the court to include in its support order "... sums for the child's education in schools and at institutions of higher learning ...." The statutory language clearly distinguishes education "in schools" and education "at institutions of higher learning" and...

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