Inkoff v. Inkoff, 2--1172--A--113

Docket NºNo. 2--1172--A--113
Citation159 Ind.App. 239, 306 N.E.2d 132
Case DateJanuary 30, 1974
CourtCourt of Appeals of Indiana

Page 132

306 N.E.2d 132
159 Ind.App. 239
George T. INKOFF, Plaintiff-Appellant,
Diane INKOFF, Defendant-Appellee.
No. 2--1172--A--113.
Court of Appeals of Indiana, Third District.
Jan. 30, 1974.
Rehearing Denied March 14, 1974.

[159 Ind.App. 240]

Page 133

Dean E. Richards, Indianapolis, for plaintiff-appellant.

George M. Ober, Charles W. Symmes, Indianapolis, for defendant-appellee.

HOFFMAN, Chief Judge.

This is an appeal from the denial of a petition to modify the terms of a divorce decree. Appellee Diane Inkoff Nicholas (Nicholas) was granted a divorce in previous proceedings in the same trial court from which this appeal is brought, and a judgment was entered on the terms of a property settlement agreement made between Nicholas and her former husband, appellant George Inkoff (Inkoff). Alleging changed circumstances since the property settlement agreement was made, Inkoff petitioned the trial court to modify such consent judgment. The petition was denied.

On appeal, Inkoff alleges that there was insufficient evidence to support the denial of his petition. And, he contends that the award of attorney's fees by the trial court for the defense of this appeal was improper since it was made after the appeal was perfected.

[159 Ind.App. 241] The provision of the divorce judgment which Inkoff is attacking through his petition to modify requires that he and Nicholas each pay one-half the mortgage payment, insurance and taxes on the house they own jointly. This arrangement is, by its terms, to continue until the house is no longer used as a home for any of their children, when it is to be sold and the proceeds divided between them.

Inkoff's reasons for seeking this modification are that Nicholas has remarried since the judgment was entered, her new husband has moved into the house and is conducting business activity therein. As a result of this Inkoff wishes to be relieved of his half of the house expenses.

Normally, a trial court may not modify the material terms of a consent judgment. Wiggam Milk Co. v. Johnson (1938), 213 Ind. 508, 513, 13 N.E.2d 522, 524. However, where a divorce judgment provides for the care and custody of the children, the court granting the judgment retains continuing jurisdiction over the care and custody of the children during their minority. IC 1971, 31--1--12--15 (Burns Code Edition). 1 State ex rel. Kleffman v. Bartholomew Circuit Ct. (1964), 245 Ind. 539, 200 N.E.2d 878; Haag v. Haag (1959), 240 Ind. 291, 163 N.E.2d 243. In the case at bar, the provision of the divorce judgment sought to be modified provided for the care of the children of the marriage by providing them a home at the joint expense of their mother and father. Therefore, this provision of the decree granting the Inkoffs' divorce is subject to modification by the trial court entering it.

Although subject to modification, such a provision may be modified only under very

Page 134

limited circumstances. As this court stated in Renard v. Renard (1956), 126 Ind.App. 245, at 250, 132 N.E.2d 278, at 281, 'we must recognize the well-[159 Ind.App. 242] established rule of law that the welfare of the child is paramount to the claims of either parent and that its care * * * should be awarded by the trial court with regard to the best interest of the child.'

In furtherance of the purposes of this rule, it has been held that '(w)here modification is sought the burden is on the petitioner to allege and prove a substantial and material change in conditions affecting the welfare of the children.' Huston v. Huston (1971), 256 Ind. 110, at 112, 267 N.E.2d 170, at 171.

Since Inkoff was the petitioner in the case at bar, he had the burden of showing a substantial and material change of conditions affecting the welfare of the children. Because his petition was denied, this appeal is taken from a negative judgment.

When the case is viewed in this light, any attack by Inkoff upon the sufficiency of the evidence before the trial court can be of no avail to him. This is because an allegation of insufficient evidence by a party who had the burden of proof below and who is appealing from a negative verdict presents no issue for review. Monon Railroad, etc. v. N.Y. Central R. Co., etc. (1967), 141 Ind.App. 277, 227 N.E.2d 450. Clearly, appellant-Inkoff's contentions of evidentiary insufficiency cannot be sustained.

Furthermore, determinations of proper child support in...

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19 cases
  • Hunter v. Hunter, 4-285A33
    • United States
    • Indiana Court of Appeals of Indiana
    • October 27, 1986
    ...unless it either represents an abuse of discretion or is contrary to law. Olson, supra; Inkoff v. Inkoff (1974), 159 Ind.App., 239, 306 N.E.2d 132. A child support order constitutes an abuse of discretion by a trial court when the order entered is clearly against the logic and effect of the......
  • Coster v. Coster, 1-1082A293
    • United States
    • Indiana Court of Appeals of Indiana
    • August 9, 1983
    ...on appeal unless abuse of that discretion is apparent. Loeb v. Loeb, (1973) 261 Ind. 193, 301 N.E.2d 349; Inkoff v. Inkoff, (1974) 159 Ind.App. 239, 306 N.E.2d 132. We find no abuse of discretion. We may not substitute our judgment for that of the trial court simply because the evidence mig......
  • Chapman v. Chapman, 85A02-8604-CV-147
    • United States
    • Indiana Court of Appeals of Indiana
    • August 31, 1987
    ...579, from whence the present procedural conflict arose. Instead, I would follow the line of cases including Inkoff v. Inkoff (1974), 159 Ind.App. 239, 306 N.E.2d 132; Wagner v. Wagner (1986), Ind.App., 491 N.E.2d 549; and Scheetz v. Scheetz (1987), Ind.App. 509 N.E.2d 840. These cases recog......
  • Hudson v. Hudson, 2-883-A-305
    • United States
    • Indiana Court of Appeals of Indiana
    • October 21, 1985
    ...2 The superseded Court of Appeals decision in Logal v. Cruse did not cite its prior decision in Inkoff v. Inkoff (1974) 3d Dist. 159 Ind.App. 239, 306 N.E.2d 132. In the latter, the Court, notwithstanding Bright v. State, had "Inkoff's argument, however, is that the trial court had no juris......
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