Nill v. Martin
| Decision Date | 06 June 1996 |
| Docket Number | No. 43A03-9506-CV-205,43A03-9506-CV-205 |
| Citation | 666 N.E.2d 936 |
| Parties | Mark Steven NILL, Appellant-Respondent, v. Karen (Nill) MARTIN, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
Appellant-respondent Mark Steven Nill appeals and appellee-petitioner Karen (Nill) Martin cross-appeals the trial court's order regarding modification of child support. Mark and Karen present a total of six issues for review, which we combine and restate as whether the trial court erred in: 1) finding that the original child support order had been modified by agreement and, as a result, in computing Mark's child support arrearage; 2) ordering Mark to pay both child support and college expenses; 3) computing orthodontia expenses; and 4) awarding Karen attorney fees.
Mark and Karen's marriage was dissolved in October 1990. Karen received custody of the parties' three children and Mark was ordered to pay monthly child support in the amount of $2,100.00. 1 In December 1992, the parties' youngest son was killed in an automobile accident. Thereafter, Mark and Karen orally agreed to reduce Mark's child support obligation to $1,677.00 per month. Neither party sought a modification with the trial court, however, Mark immediately reduced his child support payments.
In March 1994, Karen filed a petition for modification with the trial court in which she requested additional child support for college expenses and an order regarding Mark's child support arrearage. In response, Mark filed a motion in June 1994 for the court to modify his support obligation and to determine each party's college expense obligation. The trial court held a hearing on Karen and Mark's motions in December 1994, after which it entered an order finding: 1) the original dissolution decree had been modified by agreement between the parties to reduce Mark's child support obligation; 2) there had not been a substantial change in circumstances to justify further modification of Mark's child support obligation; 3) Mark was required to pay 89% of his son's college expenses, totaling $7,686.92 for the current year; 4) Mark was required to pay orthodontia expenses of $3,477.84 for the current year; 5) Mark owed $1,329.92 in back child support; and 6) Mark was required to pay $2,025.00 in attorney fees to Karen. Record at 66-67. Both Mark and Karen appeal this order.
While both parties concede that neither requested the trial court to enter specific findings pursuant to Ind.Trial Rule 52(A), we note that they disagree regarding whether the trial court entered findings of fact and conclusions of law on their petitions to modify. Because we do not believe that the trial court's order contains specific findings, we will apply our general our standard of review. In the appellate review of modification orders, weight and credibility are disregarded, and only evidence and reasonable inferences favorable to the judgment are considered. Kinsey v. Kinsey, 640 N.E.2d 42, 43-44 (Ind.1994). A trial court's decision regarding modification of child support will not be set aside unless it is clearly erroneous, with due regard for the opportunity of the trial court to judge the credibility of the witnesses. Id. at 44.
In her cross-appeal, Karen contends that the trial court erred in recognizing her oral agreement with Mark to modify his child support obligation following the death of their youngest son in December 1992 because, by doing so, the court impermissibly retroactively modified Mark's child support obligation. As a result, Karen argues that the trial court erred in computing Mark's child support arrearage. Mark also argues that the trial court erred in computing his arrearage; specifically, he argues that the trial court's determination that he was in arrears for $1,329.92 is unsupported by the evidence.
In its original decree, the trial court ordered Mark to pay the sum of $2,100.00 per month for the support of his three children. The parties do not indicate that the support award was divided per child, and as a result, we conclude that the award was an in gross order. Under an in gross order, the parent must pay the total support amount until the support payments are modified by court order or all of the children are emancipated or reach the age of twenty-one years. Sterrett v. Hartzell, 640 N.E.2d 74, 77 (Ind.Ct.App.1994). This rule is adhered to because it is possible that a lump sum support order could include a different amount of support for each child depending on the particular needs of each child. Kaplon v. Harris, 567 N.E.2d 1130, 1132 (Ind.1991). As a natural extension of this rule, our Supreme Court has determined that a modification of a support obligation can only relate back to the date the petition to modify was filed, and not an earlier date. Donegan v. Donegan, 605 N.E.2d 132, 133, n. 1 (Ind.1992).
However, in considering in gross support orders, this court has recognized three exceptions to the general rule requiring a court order to modify a support obligation. Specifically, we have allowed a credit for an accrued support obligation when: 1) support payments have been made by the obligated party even though the payments are technically nonconforming; 2) the parties have agreed to and carried out an alternative method of payment which substantially complies with the spirit of the support decree; and 3) the obligated parent takes the children into his or her home, assumes custody over them, provides them with necessities, and exercises parental control over their activities for such a period of time that a permanent change of custody has in effect occurred. DeMichieli v. DeMichieli, 585 N.E.2d 297, 302 (Ind.Ct.App.1992). Here, Mark and Karen both concede that following the death of their son, they agreed to reduce Mark's support obligation. R. at 19, 26. We find, therefore, that Mark and Karen fall within the second exception to the rule requiring a court order to modify a child support obligation, which permits the parties to agree to an alternative method of payment which complies with the original support decree.
On its face, our holding appears to contradict Kaplon v. Harris, 567 N.E.2d 1130, in which our Supreme Court rejected a similar argument. However, we believe that Kaplon is distinguishable from the present situation. In Kaplon, a parent who had lost a child unilaterally reduced his support obligation to reflect the reduced number of children for which he was paying support and later sought to have the original decree modified. The supreme court found that the trial court erred in retroactively modifying the child support obligation pursuant to the parent's unilateral reduction beyond the date the parent's petition for modification was filed. Id. at 1132. Here, however, Mark did not unilaterally reduce his support payments; rather, he and Karen expressly agreed to a modification of support. See also Schrock v. Gonser, 658 N.E.2d 615, 616-18 (Ind.Ct.App.1995) (Baker, J., dissenting), trans. denied (where spouse acquiesced to reduced support payments for extended period of time, she was estopped from later seeking to enforce original support decree.) Thus, we hold that the trial court did not err in finding that Mark's child support obligation was modified pursuant to the parties' agreement in early 1993.
Having determined that the trial court correctly found that Mark's support obligation was modified in early 1993, we now must consider whether the trial court correctly calculated Mark's child support arrearage. Initially, we note that the parties disagree regarding the date on which Mark's reduced support obligation was to become effective. According to Mark, the modification was effective in January 1993 because that was when the parties agreed to reduce Mark's support payment. However, Karen argues that although they discussed reducing Mark's support obligation in January, they did not actually agree on the amount of the reduced support obligation until March 1993. The determination of the effective date of an oral agreement is a question for the trier of fact. Tuthill Corp. Fill-Rite Div. v. Wolfe, 451 N.E.2d 72, 77 (Ind.Ct.App.1983) (). Here, although the trial court's order of modification merely stated that the parties modified the support obligation in "early 1993," R. at 66, its determination of the total arrearage indicates that the trial court used March 1993 as the effective date of the parties' agreement to modify Mark's support obligation. Because the evidence regarding the effective date of the agreement is in conflict, we cannot say that the trial court's determination that the agreement took effect in March, and not January, 1993 was clearly erroneous.
Next, we must determine whether the trial court erred in determining that Mark was in arrears for $1,329.92. During the hearing, Karen presented evidence that Mark owed $1,983.86 in back child support. Specifically, she alleged Mark owed:
June 1992 $ 220.38
December 1992 $ 433.56
February 1993 $ 600.00
June 1993 $ 190.06
July 1993 ($ 185.82) (overpayment)
January 1994 $ 303.00
February 1994 ($ 43.28) (overpayment)
July 1994 $ 335.40
August 1994 $ 130.56
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$1983.86
In response, Mark argued that he did not owe back support for any of these months, primarily because he had custody of his children for at least seven consecutive days during these months, entitling him to reduce his child support obligation by 20%. 2 The trial court, in determining Mark's child support arrearage to be $1,329.92, adopted Karen's figures regarding the arrearage but subtracted the amounts owed for June and December 1992 on the basis of Mark's...
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Nill v. Martin
...college expenses; 3) erred in computing orthodontia expenses; and 4) erred in awarding Karen Martin attorney fees. Nill v. Martin, 666 N.E.2d 936, 937-38 (Ind.Ct.App.1996). We grant transfer to consider the first issue: whether the trial court erred in finding that the original support orde......