In Re The Marriage Of Raymond Boone
| Decision Date | 31 March 2010 |
| Docket Number | No. 45A03-0906-CV-243.,45A03-0906-CV-243. |
| Citation | 924 N.E.2d 649 |
| Parties | In re the Marriage of Raymond BOONE, Appellant,v.Tammy BOONE, Appellee. |
| Court | Indiana Appellate Court |
Edward J. Calderaro, Sachs & Hess, P.C., Schererville, IN, Attorney for Appellant.
Raymond Boone (Father) appeals from the decree dissolving his marriage to Tammy Boone (Mother), presenting the following restated issue for review: Did the trial court abuse its discretion in ordering Father to pay child support retroactive to a date preceding the filing of the petition for dissolution?
We reverse and remand.
The facts are that Father and Mother were married on September 5, 1998. At that time, the parties had one child, C.B., who was born earlier that year. Father and Mother physically separated in December 2002. Following the separation, Father financially provided for C.B. by sending money to Mother every other week. In 2006, Father filed a petition for dissolution of marriage in Illinois, and Mother instituted proceedings to collect child support through an Illinois Title IV-D office. The Illinois court consolidated the cases, but ultimately dismissed the action for lack of jurisdiction because Mother lived in Indiana. Father commenced the instant action by filing his petition for dissolution of marriage in Lake County Circuit Court on November 7, 2007. Father was represented by counsel in the Indiana dissolution action but Mother was not.
Although Mother initially applied to an Indiana Title IV-D office for assistance in obtaining child support, she did not follow through in that endeavor. She broached the topic of child support for the first time in this action at a June 11, 2008 pretrial conference in which she stated to the court, Transcript at 6. After questioning Mother and determining that there was no outstanding support order entered against Father, the court informed her, “You would need to request a provisional order, a provisional hearing.” Id. In fact, Mother never sought the Indiana court's assistance in collecting child support from Father until the final hearing in the dissolution proceeding.
At the November 20, 2008 final hearing, Mother requested that the trial court impose a support obligation retroactive to June 1, 2006, which was the approximate date she alleged Father stopped sending biweekly support payments, and was more than seventeen months before the instant dissolution petition was filed. During the period that Father did not pay biweekly support, he made in-kind payments to Mother for C.B.'s support. At the conclusion of the hearing, the court granted the dissolution of marriage and granted Mother's request for child support retroactive to June 1, 2006. The court also determined that Father was entitled to credit for loan payments he made on Mother's behalf and for money Father spent on clothing for C.B. during that period. The January 15, 2009 dissolution decree provided in relevant part:
As to wife's request for a child support arrearage, the Court grants wife['s] request for retroactive application of the child support to June 1, 2006. Therefore, as of November 24, 2008, one hundred twenty-nine (129) weeks have passed and there is therefore a child support obligation in the amount of Fourteen Thousand Five Hundred Seventy-Four and 42/100 ($14,574.42) Dollars.
On February 16, 2009, Father challenged the entry of a retroactive child support order via a motion to correct error. In response, Mother filed a pleading entitled “Opposition to Petitioner's Motion to Correct Errors Pursuant to Trial Rule 59”. Id. at 29. On March 24, the court held a hearing on the motion to correct error and other pending post-dissolution motions. The court denied Father's motion to correct error, stating in relevant part as follows:
THEREFORE, the Court DENIES the Father's Motion to Correct Errors on the issue of retro[ ]active child support.
Id. at 15. Father appeals this ruling.
Father contends that the trial court erred in awarding child support retroactive to a time prior to the filing of the instant dissolution petition, i.e., June 1, 2006. Decisions concerning child support are generally left to the trial court's sound discretion. Tatum v. Tatum, 773 N.E.2d 371 (Ind.Ct.App.2002) trans. denied. We will not disturb a trial court's determination in that regard absent an abuse of discretion or a determination that the order under consideration is contrary to law. Id. In conducting this review, we do not weigh the evidence or judge the credibility of witnesses, but rather consider only the evidence most favorable to the judgment, together with the reasonable inferences which can be drawn therefrom. Lepper v. Lepper, 509 N.E.2d 818 (Ind.1987).
We note at the outset that Mother did not file an appellee's brief. When an appellee fails to submit a brief, we apply a less stringent standard of review with respect to the showing necessary to establish reversible error. Zoller v. Zoller, 858 N.E.2d 124 (Ind.Ct.App.2006). In such cases, we may reverse if the appellant establishes prima facie error, which is an error at first sight, on first appearance, or on the face of it. Id. Moreover, we will not undertake the burden of developing legal arguments on the appellee's behalf. Id.
Father contends the court abused its discretion when it ordered him to pay child support retroactive to a time before the filing of this dissolution action, and therefore obviously before the parties had even requested the court establish a support obligation. In the alternative, he contends that an initial support order is analogous to a modification of child support and, therefore, should not be retroactive to a date preceding the request for support. Our courts have held that an initial child support order can be retroactive to the date of the petition for dissolution. See Bill v. Bill, 155 Ind.App. 65, 290 N.E.2d 749 (1972). The question of whether an initial support order can be retroactive to a date preceding the date of a petition for dissolution, however, is a question of first impression.
It is well-settled that parents have a common law duty to support their children. See Mariga v. Flint, 822 N.E.2d 620 (Ind.Ct.App.2005), trans. denied. Thus, there is no question that Father had a duty to support C.B., predating and entirely independent of the dissolution proceedings. The question in this case is whether the Lake Circuit Court had authority to order Father to pay support in the form of child support payments during a time when the parties' marriage was, in the eyes of the law, intact. The trial court concluded that it possessed such authority based upon the rationale that the duty of support exists, that it had not legally terminated in this case during the relevant time period, and that it was in C.B.'s best interest to receive the support. This analysis, it seems to us, begs the question of whether the court had the power to issue such an order in the first place. We have reviewed this rationale and, especially in light of the fact that Mother has not filed an appellee's brief in support of the trial court's action, we have carefully considered the thoughtful and capably expressed views of our dissenting colleague. Having done so, we believe the dispositive question here is whether an Indiana court has authority to reach into an intact 2 marriage-for that is what occurred here when the support order covered a time before the filing of the dissolution decree-and order one or both of the parties to pay traditional child support to the other on behalf of a child or children of the marriage. We conclude that it does not.
Our search for authority for ordering child support payments that retroactively reach into the marital home prior to the filing of a dissolution petition and impose a child support obligation reveals no such cases. Thus, to do so would carve out new territory in Indiana law. We note the dissent's threshold reasoning that nothing in Indiana's Child Support Guidelines prohibits ordering the payment of retroactive child support. We do not mean to be flip in observing that there is much the Guidelines do not explicitly prohibit, but we do not agree that this amounts to a tacit approval of all such non-prohibited conduct or action. Indeed, we conclude that the failure to approve of retroactive child support predating the filing of a dissolution decree is more indicative of the Indiana Legislature's views on the subject, because the Legislature has clearly demonstrated the ability to authorize retroactive child support when it is so inclined. See, e.g., Ind.Code Ann. § 31-14-11-5(1) (West, PREMISE through 2009 1st Special Sess.) (in a paternity action, a child support order “may include the period dating from the birth of the child”). Moreover, in the context of petitions for modification of support, our Supreme Court has recently stated, “[t]he modification of a support obligation may only relate back to the date the petition to modify...
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