Kaplon v. Harris

• Decision Date: 19 April 1990
• Docket Number: No. 50A03-8911-CV-513,50A03-8911-CV-513
• Parties: In re The Marriage of Nancy KAPLON, formerly Nancy Harris, Appellant (Petitioner Below), v. Ronald HARRIS, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 528

552 N.E.2d 528

In re The Marriage of Nancy KAPLON, formerly Nancy Harris,

Appellant (Petitioner Below),

v.

Ronald HARRIS, Appellee (Respondent Below).

No. 50A03-8911-CV-513.

Court of Appeals of Indiana,

Third District.

April 19, 1990.

Following dissolution of marriage, father petitioned to modify support provisions of original dissolution decree on ground that two children were emancipated and one child had died. The Marshall Circuit Court, Michael D. Cook, J., granted father's motion to modify and reduced father's child support arrearage, and mother appealed. The Court of Appeals, Hoffman, P.J., held that: (1) dissolution court could not retroactively eliminate father's obligation to provide support for child who had died, by proportionately reducing support arrearage accumulated since date of child's death, and (2) dissolution court should not have allowed father to set off sums voluntarily paid for child's funeral expenses against support obligation.

Reversed.

Baker, J., dissented in part and concurred in result in part and filed opinion.

Peter L. Rockaway, Rockaway and Shorter-Pifer, Plymouth, for appellant.

E. Nelson Chipman, Jr., Plymouth, for appellee.

HOFFMAN, Presiding Judge.

Appellant Nancy Kaplon (formerly Nancy Harris) appeals a reduction of Ronald Harris' child support arrearage. The facts indicate that in April 1979, Ronald and Nancy dissolved their marriage. In the original dissolution decree, the court awarded Nancy custody of the couple's three children and ordered Ronald to pay $96.00 a week in child support.

On April 26, 1989, Ronald filed a petition to modify the original dissolution decree because two children were emancipated and one child had died. On August 1, 1989, the court determined that Ronald Harris had accumulated a $4,104.00 child support arrearage. Appellant contends the trial court erred in the following:

"1. That the Support Order in full force and effect of ninety-six dollars ($96.00) per week, amounts to an accumulated arrearage of four thousand one hundred and four dollars ($4,104.00) that should be due by Respondent to the Petitioner, as of the hearing date July 31, 1989.

2. That against said total arrearage, the Court now finds the parties agreed and stipulated that the Respondent was entitled to a credit of seven (7) weeks, during which time one (1) child lived with the Respondent at the rate of thirty-two dollars ($32.00) per week, for a total credit of two hundred and twenty-four dollars ($224.00). Additionally, the court finds that the one (1) son died as of October 10, 1987 and that no support arrearage would accrue as to the deceased child, and that since the death of the child, there have been ninety-four (94) weeks pass and allowing the same rate of credit to which the parties agreed and stipulated of thirty-two dollars ($32.00), that the Respondent is entitled to an additional credit of three thousand eight dollars ($3,008.00), which applying said credits to the support arrearage, there is due and owing, the Respondent to the Petitioner, the sum of seven hundred and seventy-two dollars ($772.00). Additionally, the Court finds that the Respondent was primarily responsible for funeral expenses incurred on behalf of the deceased child, which expenses exceeded the sum of three thousand dollars ($3,000.00) and that a certain credit should also be allowed for said expenses, and the Court finds therefore, that it is fair, just, and equitable that there be an additional credit for the balance of the arrearage due and owing and that no monies should be found due by Respondent, to the Petitioner, or by Petitioner to the Respondent...."

The trial court properly honored the stipulated seven-week credit and the stipulation issue was not raised on appeal. Appellant did raise the issue of whether the trial court properly reduced the arrearage against unstipulated sums.

A court may not retroactively reduce, modify or vacate a support order. Corbridge v. Corbridge (1952), 230 Ind. 201, 206, 102 N.E.2d 764, 767; see also IND.CODE Sec. 31-2-11-12(a) (1988 Ed.).

The ban against retroactive modifications is not violated by a reduction of support made effective at or after the filing of the petition requesting it. A trial court has discretion to make a modification of a support order relate back to the date a petition to modify is filed or to any date thereafter. In re Marriage of Wiley (1983), Ind.App., 444 N.E.2d 315, 319.

O'Neil v. O'Neil (1988), Ind.App., 517 N.E.2d 433, rev'd on other grounds (1989), Ind., 535 N.E.2d 523, affirmed the trial court's reduction of an increase in support after a modification petition was filed. The trial court was not empowered to retroactively reduce the arrearage accumulated under the terms of the original order. Id. 517 N.E.2d at 435. ¹

In the present case, the trial court violated the ban against retroactive modifications by reducing the support arrearage accumulated under the original support order prior to the filing of the modification petition.

When the duty to support an individual child terminates under an in gross or lump sum support order for several children, the obligated parent should not be allowed to automatically reduce support payments by a mathematical proportion. Ross v. Ross (1979), Ind.App., 397 N.E.2d 1066, 1068.

The trial court erred by retroactively reducing the arrearage from the original in gross support order for several children by a mathematical proportion 94 weeks after a child had died.

The trial court erred in setting off the remainder of the child support arrearage against the funeral expenses paid by Ronald. The dissolution decree and statutory law fail to provide guidance on how the costs of a child's funeral expenses should be divided between a custodial and a noncustodial parent. In O'Neil v. O'Neil (1989), Ind., 535 N.E.2d 523, the trial court erred in allowing a father to credit sums voluntarily paid for the children's educational costs. The college education of the children was not a judicially decreed obligation of either party and there was no express agreement that the payment of educational expenses would satisfy the support arrearage. Id. at 524. The voluntary payment of funeral expenses by a noncustodial parent can be compared to the noncustodial parent voluntarily providing a child food, clothing or educational expenses in addition to payment of a child support obligation. A noncustodial parent could not legally reduce a voluntary payment for food, clothing or educational expenses from a child support arrearage. The trial court erred in reducing voluntary payment of funeral expenses from the child support arrearage.

The trial court erred in the following:

"[T]he court finds that the youngest child is eighteen (18) years of age and a graduate from High School with no definite plans as to attend an Institution of Higher Education. That she is gainfully employed and not living in the home of the Petitioner and that for that reason, she is for all purposes, emancipated and that the current support Order of ninety-six dollars ($96.00) per week, ought to be and is hereby terminated, effective immediately. The Court allows the opportunity for the youngest child to return to Court to pursue contributions from the Respondent for educational expenses, once such educational plans have become more definite." [Emphasis added.]

"The relevant portion of IND.CODE Sec. 31-1-11.5-12 (1988 Ed.) provides:

'(d) The duty to support a child under this chapter ceases when the child reaches twenty-one (21) years of age unless:

(1) the child is emancipated prior to reaching twenty-one (21) years of age in which case the child support, except for the educational needs outlined in subsection (b)(1), terminates at the time of emancipation; however, an order for educational needs may continue in...