O'Neil v. O'Neil

• Decision Date: 12 January 1988
• Docket Number: No. 02A03-8703-CV-86,02A03-8703-CV-86
• Citation: O'Neil v. O'Neil, 517 N.E.2d 433 (Ind. App. 1988)
• Parties: Marita K. O'NEIL, Respondent-Appellant, v. Terence M. O'NEIL, Petitioner-Appellee.
• Court: Indiana Appellate Court

Page 433

517 N.E.2d 433

Marita K. O'NEIL, Respondent-Appellant, v. Terence M. O'NEIL, Petitioner-Appellee.

No. 02A03-8703-CV-86.

Court of Appeals of Indiana Third District.

Jan. 12, 1988.

Rehearing Denied March 30, 1988.

John H. Heiney, Rothberg, Gallmeyer, Fruechtenicht & Logan, Fort Wayne, for respondent-appellant.

Sherie L. Hampshire, David Peebles, Fort Wayne, for petitioner-appellee.

GARRARD, Presiding Judge.

In August 1975 the marriage of Terence and Marita O'Neil was dissolved. Custody of four minor children was awarded to the mother and the father was ordered to pay support in the gross amount of $546.10 per month.

On March 30, 1977 the mother petitioned for an increase in support. In August the court determined no material change in circumstances had been shown and denied the petition. Following the mother's motion to correct errors the court, however, vacated the denial and determined an additional hearing should be held. Additional evidence was heard and the matter was taken under advisement.

On July 31, 1984 the court ordered modification increasing the support allowance to $620 per month. Following the father's motion to correct errors this modification was vacated on July 2, 1985 and the motion was reset for hearing. Once again additional evidence was heard and on December 4, 1985 the court entered its final order on all matters before it relating to child support. No challenge has been made on the ground that some issue or other was not properly before the court, and we assume the matters adjudicated were litigated by consent. Furthermore, neither party has challenged the reasonableness of support amounts, the sums paid by the father, or the computations concerning deficiencies. Accordingly, we accept all those findings as correct as to the specific sums in question.

The court order of December 4, 1985 determined that over the intervening years all four of the parties' children had become emancipated and that accordingly the court's task was to determine whether there was a deficiency owed to the mother and, if so, the amount thereof.

The court was correct in doing so. In its opinion the trial court determined the following:

1) The 1984 order had been appropriate and the court should have increased support to $620 per month effective November 30, 1977.

2) There was a potential arrearage of $17,647.10 if the original order continued unmodified until the date of emancipation of the youngest of the four children;

3) If the modification to $620 per month effective November 30, 1977 was computed, the support deficiency would be $32,269.10;

4) Each of the parties' four children have become emancipated, one in February 1980, one in June 1982, one in February 1984, and the last in June 1985, and that the father should be equitably entitled to a 20% reduction of support at the $620 per month rate when and as each of the first three became emancipated, which when computed out would leave a net arrearage under the modified order of $18,009.10;

5) Since August 1977, the father had directly paid educational costs for his children in the amount of $32,697 and had assumed responsibility to repay student loans in a principal amount in excess of $21,500.

6) The father should receive credit for $27,519 of direct educational costs paid by him and that his support obligation was fully discharged.

The mother appeals claiming two errors. She contends that the court's action in deducting amounts from the total due on account of the emancipation of the children was an impermissible retroactive modification of support. Secondly, she asserts the father was not entitled to credit for the education expenses which were not paid in conformity with the terms of the original support order.

We agree that where a child becomes emancipated a father, who is under an order directing that he pay a gross sum for the support of several children, is not entitled to automatically reduce his support payments by the mathematical proportion that the one child represents to all the children. Reffeitt v. Reffeitt (1981), Ind.App., 419 N.E.2d 999. We also agree that the court cannot modify support awards retroactively. Hayden v. Hite (1982), Ind.App., 437 N.E.2d 133.

The flaw in the mother's argument is that it misperceives what the court was doing. The court computed the support deficiency under the terms of the original order, which was the only order in force at the time of the hearing, and found it to be $17,647.10. The court was not empowered to retroactively reduce that amount, and it did not.

In considering the petition to modify, the court determined that an increase to $620 per month was justified. Ordinarily, such modifications also...