Isler v. Isler

• Decision Date: 30 June 1981
• Docket Number: No. 1-1280A371,1-1280A371
• Citation: 422 N.E.2d 416
• Parties: Diann A. ISLER, Plaintiff-Appellant, v. Thomas J. ISLER, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 416

422 N.E.2d 416

Diann A. ISLER, Plaintiff-Appellant, v. Thomas J. ISLER, Defendant-Appellee.

No. 1-1280A371.

Court of Appeals of Indiana, First District.

June 30, 1981.

Robert A. Kelso, New Albany, for plaintiff-appellant.

Virgil E. Bolly, Sellersburg, for defendant-appellee.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

This is an appeal by petitioner-appellant Diann A. Isler (Diann) from a judgment of the Clark Superior Court on her petition for a rule to show cause for nonpayment of support by her former husband, Thomas J. Isler (Thomas), and his counter-petition to modify the decree of divorce.

We reverse in part and affirm in part.

STATEMENT OF THE FACTS

The parties were divorced on May 12, 1972, and by the terms of the decree Diann was awarded the custody of the three children of the parties: Kent, age 11, Kreig, age 10, and Karen, age 3. Thomas was ordered to pay $60 per week for their support. The support was ordered in gross, and not separated or a particular amount assigned for each child. The present litigation grew out of Diann's petition for a rule for Thomas to show cause why he should not be punished for contempt for failure to make the support payments. Her petition also contained a prayer for attorney fees.

In his answer, Thomas conceded an arrearage of $5,150. He counter-petitioned to modify the decree to terminate Kent's support on the ground that Kent was emancipated, and to terminate Kreig's support on July 1, 1980, as Kreig would then be 18 and emancipated.

After a hearing on the petitions, the trial court entered an order (1) modifying the decree by declaring Kent emancipated and terminating support for him, (2) ordering Thomas to pay $20 per week per child for Kreig and Karen, and (3) determining the support arrearage to be $1,200. The trial court did not make any findings or enter any orders upon the issues of (1) attorney fees, (2) contempt for nonpayment of support, or (3) the enforcement of the payment of arrearages. From that judgment Diann appeals.

ISSUES

Diann raises four issues for our consideration:

I. Whether the decision of the trial court establishing Thomas's arrearages at $1,200 is erroneous and contrary to law;

II. Whether the decision of the trial court declaring Kent emancipated is contrary to the evidence and/or is not sustained by the evidence;

III. Whether it was erroneous for the trial court to fail to rule on the issue of Thomas's contempt, and whether the trial court abused its IV. Whether it was erroneous for the trial court to fail to rule on the issue of Diann's request for attorney fees, and whether the trial court abused its discretion in not awarding her attorney fees.

discretion by not finding him guilty of contempt; and

DISCUSSION AND DECISION

Issue I. Arrearages

The evidence, which is largely undisputed, most favorable to the court's decision on this issue, discloses the following: Kent, age 19 at the date of the hearing, left Diann's home in February of 1973, and from that time until January of 1977 lived with and was supported by Thomas. In January he moved from his father's home into a dwelling with a friend, but after two months moved back with Diann where he remained until the date of the hearing, March 28, 1980. Kreig, age 18 at the time of the hearing, left Diann's home in February of 1974 and lived with and was supported by Thomas until June of 1979, when he returned to Diann's home. Karen, age 11 at the time of the hearing, remained with Diann from the time of the divorce until the present.

Thomas filed an answer to the petition wherein he alleged that $12,480 in support had accrued, and claimed credits for payments to the clerk of court in the amount of $1,480 and to Diann directly in the amount of $5,850, for a total of $7,330. At the trial he testified these figures were correct. By calculation it is seen that he conceded arrearages of $5,150. His answer simply requested the court rule in accordance with that information. Ordinarily, the answer would be dispositive of the proposition that at least a $5,150 arrearage existed. However, we have examined the other evidence in the record to attempt to determine if any evidence or inferences existed from which the court could arrive at the determination that Thomas was only $1,200 in arrears.

Assuming, arguendo, (1) the court thought the $60 per week could be broken down into $20 per child per week, (2) the court thought the $20 per child per week accrued only when a given child was in Diann's care, (3) the court credited Thomas with all the payments he claimed to have made, and (4) the court found Kent was emancipated in 1977, the following computations can be made: Kent lived with Diann 39 weeks, and at $20 per week the accrued support would be $780. Kreig lived with Diann a total of 129 weeks, and at $20 per week the sum of $2,580 support would have accrued. Karen lived with Diann 410 weeks, accruing support in the sum of $8,200. Recapitulation reveals $11,560 in support accrued. Payments claimed by any analysis of the evidence do not exceed $7,330, leaving a bare minimum arrearage of $4,230.

We are aware that when considering an appeal from a trial before the court without the intervention of a jury, a reviewing court may not disturb the judgment of the court unless it is clearly erroneous. Ind. Rules of Procedure, Trial Rule 52(A). The judgment of the trial court must be upheld if it can be sustained upon any legal theory that the evidence supports. We will not weigh the evidence or judge the credibility of the witnesses. Hurt v. Polak, (1979) Ind.App., 397 N.E.2d 1051. However, we have neither been directed by the briefs nor can we discern what set of calculations may exist that would justify a finding of a $1,200 arrearage. We conclude the judgment of the trial court is erroneous.

However, the faulty analysis does not stop with the arithmetic calculations. In Whitman v. Whitman, (1980) Ind.App., 405 N.E.2d 608, 611, Judge Shields summarized the duties of the obligated parent.

"(A)n order for child support, established as part of a dissolution action, is intended to provide for the support and maintenance of the parties' minor children. IC 31-1-11.5-12 (Burns Code Ed., Supp.1979); In re Marriage of Honkomp, (1978) Ind.App., 381 N.E.2d 881, 882. In accordance with this duty the trial court frames its order establishing the obligated parent's legal responsibility to support the children, retaining continuing jurisdiction to modify that responsibility when conditions require. Brokaw v. Brokaw, (1980) Ind.App., 398 N.E.2d 1385; See IC 31-1-11.5-17 (Burns Code Ed., Supp.1979). All modifications to a support order, however, must operate prospectively. Jahn v. Jahn, (1979) Ind.App., 385 N.E.2d 488. Until the terms of the support order are modified, the obligated parent must make the payments in the manner, amount, and at the times required by the original order. Stitle v. Stitle, (1964) 245 Ind. 168, 197 N.E.2d 174. This court has therefore refused to credit individual debts of the custodial parent paid by the obligated parent but not provided for in the support order against the obligated parent's support obligation, In re Honkomp, supra; and has treated excess payments made by an obligated parent pursuant to an extrajudicial agreement with the custodial parent as voluntary contributions. Haycraft v. Haycraft, (1978) Ind.App., 375 N.E.2d 252." (Footnote omitted.)

In Ross v. Ross, (1979) Ind.App., 397 N.E.2d 1066, this court held that where there was a support order in gross for multiple children, without any alternate provisions or designations of amounts per child, the emancipation of the older children did not effect any reduction of the support order so long as there was a minor child remaining dependent upon the obligated parent for support. The obligated parent was required to pay support for the remaining minor child or children under the terms of the original order until his duty to support all of the minor children terminated as a matter of law. The court stated that if the obligated parent had desired a pro rata reduction of the undivided support order as the children became emancipated, he should have petitioned the court to modify the original order.

In Jahn v. Jahn, (1979) Ind.App., 385 N.E.2d 488, the obligated parent was not permitted to set off against the support order amounts which accrued while the children were with him. A like result was reached in Haycraft v. Haycraft, (1978) Ind.App., 375 N.E.2d 252, in which the court held the parties had no power to modify the terms of the original support order by means of an extra-judicial agreement.

It is clear from the above-cited cases that (1) Thomas cannot claim, without a judicial modification, any reduction of the undivided support order until all of the children are emancipated, and (2) Thomas cannot claim credit against accrued support for the weeks Kent and Kreig lived with him.

Therefore, we hold that the trial court erred in the calculation of the accrued support arrearage. The judgment is reversed and the trial court is ordered to grant a new trial on this issue.

Issue II. Emancipation

Emancipation of a child terminates the obligation to support. Ross, supra. We have held in Issue I that Kent's emancipation had no effect on the accrued support or contempt, and therefore, it is relevant only to Thomas's petition to modify. In Brokaw v. Brokaw, (1980) Ind.App., 398 N.E.2d 1385, 1388, the court stated:

"Emancipation frees a child from the care, custody and control of its parents. Stitle v. Stitle (1964), 245 Ind. 168, 197 N.E.2d 174. What constitutes emancipation of a minor child is a question of law, but whether there has been an emancipation is a question of fact. Stitle, supra. Emancipation of a child is never presumed, but must be established by competent evidence. Such evidence may be circumstantial. It may also be demonstrated by express agreement or by the conduct and acts of the...