Meehan v. Meehan

• Decision Date: 03 February 1981
• Docket Number: No. 1-580A118,1-580A118
• Citation: 415 N.E.2d 762
• Parties: Barbara Ann MEEHAN, Petitioner-Appellant, v. William D. MEEHAN, Respondent-Appellee.
• Court: Indiana Appellate Court

Page 762

415 N.E.2d 762

Barbara Ann MEEHAN, Petitioner-Appellant, v. William D. MEEHAN, Respondent-Appellee.

No. 1-580A118.

Court of Appeals of Indiana, First District.

Feb. 3, 1981.

William L. McClellan, Greencastle, for petitioner-appellant.

J. D. Calbert, Greencastle, for respondent-appellee.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Barbara Ann Meehan appeals the judgment of the Putnam Circuit Court granting William D. Meehan's petition for modification of a child support order.

We reverse.

STATEMENT OF THE FACTS

Among the policies and purposes of the Dissolution of Marriage Act, Ind.Code 31-1-11.5-1 et seq., is the policy and purpose of promoting the amicable settlement of disputes that have arisen or may arise between the parties to a marriage attendant upon the dissolution of their marriage by providing that the parties may agree in writing to provisions for the maintenance of either or both of them, for the disposition of any property owned by either of them, and for the custody and support of their children. Ind.Code 31-1-11.5-1 (Supp.1980); Ind.Code 31-1-11.5-10. In the case at bar the parties submitted the following agreement to the trial court:

"PROPERTY SETTLEMENT AGREEMENT

WHEREAS, the above-named parties have heretofore filed a cause for dissolution of the marriage of such parties in the Putnam Circuit Court and it being the mutual desire of the parties to resolve property rights, it is Covenanted and Agreed as follows:

1. That the parties shall each have their personal effects and that the same have been taken by each party into his or her possession and there remain no items of personal effects to be divided.

2. That Petitioner shall have as her absolute property all household goods, wares and appliances to make a home for the minor, dependent children of the parties.

3. That Petitioner shall have the legal care and custody of the four (4) unemancipated children: CARLIA CHRISTINE, age 18 years, JENNIFER RUTH, age 15 years, PATRICK JAMES, age 13 years, and MEGAN KATHLEEN, age 11 years, subject to rights of visitation to the Respondent at all reasonable and proper times.

4. That Respondent shall pay through the office of the Clerk of the Putnam Circuit Court the sum of $500.00 a month for the care and keep of said children, which sum shall be payable until Megan Kathleen has completed her high school education or is emancipated.

5. That Respondent shall be liable for the higher educational costs of each of the aforesaid children for college and living expenses which amount to more than $100.00 each per month. If the said Megan Kathleen is enrolled in an accredited college after the termination of Respondent's liability for the $500.00 monthly support payment, Respondent shall be liable for all of said child's college and living expenses.

6. Respondent shall pay all necessary medical, doctor, hospital, dental, optical and pharmaceutical bills for the defendant children of the parties and shall keep current the premiums on each child's life insurance coverage.

7. That Petitioner shall have the right of occupancy of the apartment building of the parties and shall make all payments thereon, including taxes and insurance, and shall have the income therefrom.

8. At the termination of the high school education of Megan Kathleen, or by agreement of the parties, as to time, the apartment building shall be appraised and thereafter, if Petitioner desires to purchase the same, she shall have first preference. If Petitioner should elect not to purchase the same, Respondent shall have second preference in purchasing such building at its appraised value. In the event neither party desires to purchase said building, it shall be listed for public sale with a licensed realtor. In any event, the parties shall each be entitled to one-half (1/2) of the proceeds derived from the sale after payment and retirement of all mortgage indebtednesses, liens and sale expenses.

9. In the event Petitioner should not desire to occupy the above-referred-to apartment building or removes herself therefrom, said building shall be appraised and offered for sale as aforesaid.

10. That Respondent shall be entitled to claim the dependent children of the parties as exemptions for state and federal income tax purposes for so long as he pays support as above set out.

11. That this settlement agreement is full, complete and absolute and forever shall determine the rights between these parties as to their property interests and liabilities one unto the other."

Regarding such agreements, Ind.Code 31-1-11.5-10(b) provides:

"In an action for dissolution of the marriage the terms of the agreement if approved by the court shall be incorporated and merged into the decree and the parties ordered to perform them, or the court may make provisions for disposition of property, child support, maintenance, and custody as provided in this chapter."

The final decree of the court read as follows:

"Comes now the parties in person the petitioner being represented by her attorney and this cause being at issue upon the petition, witnesses are sworn and evidence is heard and the Court now finds that the bonds of matrimony heretofore existing by and between the parties be and they are hereby dissolved; that the petitioner is a fit and proper person to have the care and custody of the unemancipated minor children of the parties: Carlia, age 18, Jennifer, age 15, Patrick, age 13 and Megan, age 11, and the respondent is ordered to pay into the office of the Clerk the sum of $500.00 on the first day of each month hereafter for the support and maintenance of said minor children plus all reasonable and necessary medical, dental, optical and hospital expenses and that such support payments shall continue until the youngest of such minor children, Megan is regularly enrolled in an accredited university and at which time they shall cease and she shall continue to pay such expenses as may be necessary for the further education of such minor children. The parties further agree that the petitioner shall have the right to occupy the jointly owned property of the parties located at 411 E. Seminary Street, Greencastle, Indiana until such time as the youngest of said children is emancipated and that thereafter said property shall be sold pursuant to the Ind.Code 31-1-11.5-17(a) (Supp.1980) provides:

terms of the property settlement agreement which being examined is approved by the Court. Court further finds that the respondent shall be allowed to claim such children as exemptions on his Federal Income Tax Return and have such children with him for extended visitations. Judgment on finding."

"Provisions of an order with respect to child support may be modified or revoked. Such modification shall be made only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable."

William petitioned for modification of the child support order; the trial court granted the petition, as follows:

"The Court having had this cause under advisement and having considered the evidence and briefs filed by the attorneys in this cause, now finds that there has been a change in conditions since the granting of the original order in this cause and that the support order heretofore entered should be and the same is hereby modified in the following particulars: (1) That the Respondent shall pay all of the college expenses of his child, Jennifer, including books and tuition and shall forward her the sum of $100.00 on the first day of each month, so long as she is enrolled as a full-time student in an accredited college. (2) The Court further finds that the Petitioner is a fit and proper person to have the care and custody of the two minor children of the parties, Megan Meehan, age 15, and Patrick Meehan, age 17, and the respondent is ordered to pay into the office of the Clerk of the Putnam Circuit Court the sum of $80.00 on each Friday hereafter for the support and maintenance of such minor children, plus all reasonable and necessary medical, dental, hospital, optical and pharmaceutical expenses; (3) The Court further finds that so long as Megan is being allowed to live in the home of her father, that the respondent shall be released from paying $40.00 for said support money for each week when said child is not regularly residing in the home of her mother; (4) the Court further finds that in all other respects, the order heretofore made shall remain in full force and effect; (5) The Court further awards William McClellan,...