Inkoff v. Inkoff

• Decision Date: 30 January 1974
• Docket Number: No. 2--1172--A--113,2--1172--A--113
• Parties: George T. INKOFF, Plaintiff-Appellant, v. Diane INKOFF, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 132

306 N.E.2d 132

159 Ind.App. 239

George T. INKOFF, Plaintiff-Appellant, v. Diane INKOFF, Defendant-Appellee.

No. 2--1172--A--113.

Court of Appeals of Indiana, Third District.

Jan. 30, 1974.

Rehearing Denied March 14, 1974.

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.

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 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- 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 divorce proceedings are committed to judicial discretion, and will not be disturbed on appeal unless an abuse of that discretion is apparent. Bill v. Bill (1972), Ind.Ct.App., 290 N.E.2d 749, 34 Ind.Dec. 545. Such abuse must be apparent upon the face of the record, and it must be clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable and actual deductions to be drawn therefrom. Draime v. Draime (1961), 132 Ind.App. 99, 173 N.E.2d 70 (transfer denied). The decision of the court and the reasons stated therefor in Draime are applicable to the child support determination of the trial court in the case at bar:

'The Appellate Court, unlike the lower court, is subjected neither to the physical presence of the parties nor the emotions or motivations of the appellant and appellee. This court has no authority to weigh the evidence, and the decision reached herein is based solely upon the record and authority as presented in the briefs of the parties. Our purpose is to see that the judgment is just, and that the laws of this state are observed and upheld. In light of the above it is the opinion of this court that appellant has not shown where the trial court's judgment is either an abuse of discretion or contrary to law. Therefore the decision of the lower court must be upheld.' (At 105 of 132 Ind.App., at 73 of 173 N.E.2d.)

The award of attorney's fees challenged by Inkoff was made by the trial court to enable Nicholas to defend this appeal. Since this award was made by the trial court after its ruling on Inkoff's motion to correct errors, the error he asserts must have occurred after the ruling on such motion and, therefore, could not have been included therein.

Thus, Inkoff was faced with a situation where the trial court acted further in a matter after its final judgment. Rule 2--6 of the Rules of the Supreme Court of Indiana, which was in effect prior to the present Indiana Rules of Procedure, provided for the inclusion of such alleged errors in the transcript for appeal in this situation. ² However, the present rules do not contain such provision.

Rule AP. 7.2(A)(1), Indiana Rules of Procedure, requires that either a 'certified copy of the motion to correct errors or an assignment of errors' be included in the record of the proceedings on appeal. However, such rule provides that a motion to correct errors is required in all appeals from a...