Neudecker v. Neudecker

• Decision Date: 13 February 1991
• Docket Number: No. 79A02-8912-CV-649,79A02-8912-CV-649
• Citation: 566 N.E.2d 557
• Court: Indiana Appellate Court
• Parties: Rolland Phillip NEUDECKER, Appellant (Petitioner), v. Wendy Elizabeth NEUDECKER, Appellee (Respondent).

Page 557

566 N.E.2d 557

Rolland Phillip NEUDECKER, Appellant (Petitioner), v. Wendy Elizabeth NEUDECKER, Appellee (Respondent).

No. 79A02-8912-CV-649.

Court of Appeals of Indiana,

Second District.

Feb. 13, 1991.

Margret G. Robb and Cynthia L. Garwood, Bartlett, Robb & Sabol, Lafayette, for appellant.

Carolyn S. Holder, Holder and Davis, Lafayette, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Petitioner-appellant Rolland Neudecker (Rolland), a divorced father, appeals from the modification of a child support order claiming the trial court erred when it (1) modified his support obligation, (2) when it ordered him to pay his daughter's college expenses, (3) when it determined he was in contempt of court for failing to pay child support, and further, that the statute allowing the trial court to award educational expenses violated his due process and equal protection rights.

We affirm.

FACTS

The facts most favorable to the trial court's judgment reveal that Rolland's marriage to Wendy Neudecker (Wendy) was dissolved on October 3, 1975. Rolland was ordered to pay $45 per week as child support for the two children born of the marriage. Wendy filed a petition to modify the support order on August 15, 1988, seeking an increase in support, educational expenses for the parties' oldest daughter, and asking that Rolland be held in contempt for failing to pay his previous child support obligation.

At the time Wendy sought modification, she was working as a nurse and earned approximately $31,000 per year. Rolland, working as a mortgage broker, earned approximately, $229,000 in 1987 and $195,000 in 1988. In October of 1988, Rolland lost his job and became self-employed as a consultant and independent broker. Rolland and his second family resided in Laguna Hills, California, and maintained a condominium in Park City, Utah. The parties' oldest daughter had applied to and been accepted at the University of Kansas.

A hearing was held on July 24, 1989. The trial court entered its modification order on August 22, 1989. The order determined that Rolland was in contempt of court for failure to pay $4,120 in child support, and that he could purge his contempt by paying that amount. The order also increased his monthly child support obligation to $1,043.90, retroactive to September 1, 1988. Rolland was also ordered to pay his eldest daughter's college expenses and $1,000 of Wendy's attorney's fees.

ISSUES

Rolland presents several issues which we consolidate as:

1. Whether the trial court abused its discretion when it modified Rolland's child support obligation?

2. Whether the trial court erred when it determined Rolland was in contempt for failing to pay child support?

3. Whether the statute authorizing the award of college expenses as child support violates Rolland's due process and equal protection rights?

DECISION

ISSUE ONE--Did the trial court err when it modified Rolland's child support obligation?

PARTIES' CONTENTIONS--Rolland argues that the evidence was insufficient to demonstrate a substantial change in circumstances had occurred, and that the amount of the child support award was also not supported by the evidence. Rolland also claims that the trial court erred in including his eldest daughter's college expenses in the support award. Wendy replies that the evidence was sufficient to support the court's award.

CONCLUSION--The trial court did not abuse its discretion.

It has long been established that modification of a child support order is within the sound discretion of the trial court, and such determination will not be disturbed on appeal unless there is no substantial evidence to support the finding of the trial court. Lepper v. Lepper (1987), Ind., 509 N.E.2d 818; Meehan v. Meehan (1981), Ind., 425 N.E.2d 157. We will not reweigh the evidence or judge the credibility of witnesses. Meehan, supra.

At the time Wendy petitioned for modification, Indiana law provided that a child support order was subject to modification if a party demonstrated changed circumstances so substantial and continuing that the terms of the original order were rendered unreasonable. Ind.Code 31-1-11.5-17(a) (1988). ¹ When determining whether or not a change in circumstances has occurred, the trial court is to consider the totality of the circumstances. Blickenstaff v. Blickenstaff (1989), Ind.App., 539 N.E.2d 41; Halum v. Halum (1986), Ind.App., 492 N.E.2d 30, trans. denied.

Wendy testified that the costs of raising the children had increased drastically since the initial support order was entered. Record at 152. There also was evidence that Rolland's income increased significantly during the 1980s, rising from over $96,000 in 1984 to $219,000 in 1988. Record at 161-62, 186-87, 202-3, 298, 301, 308. As this court observed in Blickenstaff, supra, factors such as the rate of inflation and the fact that it takes more to support a child as the child grows older can be considered by the trial court in determining whether a substantial change in circumstances has occurred. We cannot conclude that the trial court's determination that a substantial change in circumstances had occurred was illogical or unreasonable in light of the evidence presented. McCallister v. McCallister (1986), Ind.App., 488 N.E.2d 1147; Tucker v. Tucker (1980), Ind.App., 406 N.E.2d 321.

Rolland next complains that the trial court abused its discretion when it ordered him to pay $1,043.90 per month as child support. Once a trial court determines there has been a substantial change in circumstances justifying a modification of the order, the amount of the award is within the sound discretion of the trial court. In re Marriage of Wiley (1983), Ind.App., 444 N.E.2d 315; Howard v. Reeck (1982), Ind.App., 439 N.E.2d 727.

The record indicates that the trial court used the Indiana Child Support Guidelines to determine the amount of Rolland's child support obligation. Record at 50. The supreme court has adopted the Guidelines as a rebuttable presumption of the correct amount of child support to be awarded. Ind.Rules of Procedure, Child Support Rule 2. While the Support Rules were not effective until October 1, 1989, and therefore not dispositive of this issue, we observe that our supreme court has determined that in modifying a support order the trial court may consider all of the factors relevant to the initial determination of child support found in IC 31-1-11.5-12(a). Lepper, supra. The Guidelines were explicitly designed to be consistent with this statutory provision. Ind. Rules of Procedure, Child Support Guideline 1. So, we conclude that the trial court did not abuse its discretion when it used the Guidelines to determine Rolland's support obligations.

Lastly, Rolland complains that the trial court should not have included the payment of his eldest daughter's educational expenses in the child support order. Rolland claims that no evidence was introduced demonstrating his daughter's aptitude and ability for higher education, citing Giselbach v. Giselbach (1985), Ind.App., 481 N.E.2d 131.

IC 31-1-11.5-12(b) provides that the trial court may award, as child support, sums for a child's education, taking into account the child's aptitude and ability, and the ability of the parent or parents to meet the educational expenses. In Giselbach, supra, this court concluded that there must be some evidence of a child's aptitude and ability before an award of educational expenses may be given.

An examination of the record, however, demonstrates that appreciable evidence of Rolland's daughter's aptitude and ability was presented to the trial court. The evidence demonstrates that the eldest daughter had applied to, been accepted by and enrolled at the University of Kansas. Record at 153. We think this is sufficient evidence of the daughter's aptitude and ability.

ISSUE TWO--Did the trial court err when it determined Rolland was in contempt of court?

PARTIES' CONTENTIONS--Rolland says the evidence was insufficient to establish that his failure to pay his child support obligation was willful, and therefore the evidence was insufficient to establish he was in contempt of court. Wendy responds that the evidence demonstrates Rolland failed to pay a substantial amount of his child support obligation and further that he had more than sufficient income to meet his obligations.

CONCLUSION--The trial court properly adjudged Rolland to be in contempt of court.

Evidence was introduced at trial indicating that between 1976 and 1989, Rolland failed to pay $8,550 for child support through the Clerk of the Tippecanoe Circuit and Superior Courts. Record at 146. Wendy executed an affidavit in August of 1979 which indicated that, due to nonconforming payments made by Rolland, the delinquency up to that date was only $765. Delinquencies following that date totaled $5,310. After crediting Rolland with $1,190 for nonconforming payments, Wendy requested $4,120 as Rolland's total delinquency. Record at 48.

A trial court may adjudge a noncustodial parent to be in contempt of court for failing to pay child support. Holman v. Holman (1985), Ind.App., 472 N.E.2d 1279. Like the appellant in Holman, Rolland simply asserts that the evidence does not demonstrate his nonpayment was willful because he believed his nonconforming payments satisfied his child support obligation.

It was for the trial court to weigh the evidence and determine whether or not Rolland's noncompliance with the court's order was willful. Rolland had the burden of proving to the court that his failure to comply was not willful, and Rolland appeals the trial court's negative judgment which we will reverse only if there is no evidence to support the court's conclusion. Holman, supra.

Rolland makes much of the fact Wendy executed an affidavit in 1979 which indicated his child support delinquency was less than indicated by the Clerk's records. That affidavit, however, does not demonstrate that Rolland also believed his...