Ogle v. Ogle

• Decision Date: 10 June 2002
• Docket Number: No. 34A02-0109-CV-634.,34A02-0109-CV-634.
• Citation: 769 N.E.2d 644
• Parties: Jerry D. OGLE, Appellant, v. Margaret C. OGLE, Appellee.
• Court: Indiana Appellate Court

769 N.E.2d 644

Jerry D. OGLE, Appellant, v. Margaret C. OGLE, Appellee.

No. 34A02-0109-CV-634.

Court of Appeals of Indiana.

June 10, 2002.

Thomas J. Hilligoss, Russell, McIntyre, Hilligoss & Welke, Kokomo, IN, Attorney for Appellant.

Russell T. Clarke, Jr., Emswiller, Williams, Noland & Clarke, Indianapolis, IN, Katherine J. Noel, Noel & Noel, Kokomo, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Appellant, Jerry Ogle, appeals the trial court's judgment finding him delinquent in the payment of previously ordered child support in the sum of $43,960.00. Jerry claims that the trial court erred in finding that, pursuant to a property settlement agreement, he was obligated to pay non-educational child support upon the parties' youngest child attending an institution of higher learning.

We affirm.

On May 22, 1987, the trial court issued an order dissolving Jerry and Margaret Ogle's marriage and adopting the parties' Property Settlement Agreement ("Settlement Agreement"). Pursuant to the Settlement Agreement, Margaret received custody of their two children, Nicholas, then twelve, and Stephanie, then eight, and Jerry agreed to pay $231.00 per week ($115.50 per child) in child support. The Settlement Agreement further provided:

"When either of the minor children are able and elect to attend a college, trade school or other post-secondary educational institution, [Jerry] shall pay the room, board, books, tuition and fees incidental to such education together with such support as the court may from time to time deem proper." Appellant's Appendix at 8.

On February 15, 1990, Margaret filed a petition to modify child support. On April 30, 1990, Jerry and Margaret agreed that Jerry's child support would be increased to $280.00 per week, and the trial court approved this modification.¹

Thereafter, Jerry made regular support payments of $280.00 until August 24, 1996, which was Stephanie's eighteenth birthday and the day after she went to Asbury College in Kentucky. Stephanie attended Asbury College for one year, and then attended Anderson University in Anderson, Indiana for three years until she received her degree. While Stephanie attended college, Jerry paid all of Stephanie's expenses pursuant to the Settlement Agreement, including room, board, books, tuition, and other incidental costs associated therewith. Jerry, however, did not make any non-educational child support payments, i.e. $280.00 per week. At no point after the 1990 modification did Jerry or Margaret attempt to further modify the prior child support order of $280.00 per week.²

On February 15, 2001, Margaret filed a verified motion to show cause alleging Jerry's failure to pay non-educational child support from August 24, 1996 through August 24, 1999, and seeking to establish a delinquency.³ On July 12, 2001, Margaret moved to dismiss her verified motion to show cause and filed a motion to reduce support delinquency to judgment. The trial court held a hearing on August 27, 2001. The day after the hearing, the trial court issued an order finding Jerry delinquent in the payment of previously ordered child support in the sum of $43,960.00, or $280.00 per week for the three-year period.

Upon appeal, Jerry argues that the Settlement Agreement did not obligate him to pay non-educational child support when the youngest child, Stephanie, attended an institution of higher learning. In the alternative, Jerry argues that if we conclude that he was obligated to pay such non-educational child support in addition to Stephanie's college expenses, at the very least, he should receive a credit against the arrearage for the time Stephanie was away at school.

We begin by noting that upon dissolution of marriage, parties are free to draft their own settlement agreements. Niccum v. Niccum, 734 N.E.2d 637, 639 (Ind.Ct.App.2000). Such agreements are contractual in nature and become binding upon the parties once the trial court merges and incorporates such into the divorce decree. In re Marriage of Loeb, 614 N.E.2d 954, 957 (Ind.Ct.App.1993). This court will enforce an agreement concerning the custody and support of children even though the divorce court would otherwise not have the authority to do as the parties agreed. Id.; see also Schueneman v. Schueneman, 591 N.E.2d 603 (Ind.Ct. App.1992) (holding that although a parent's general duty to support his or her child ends when the child reaches twenty-one years of age, parents are free to enter into binding agreements to do so). When interpreting such agreements, we apply the general rules applicable to construction of contracts. Niccum, 734 N.E.2d at 639.

The interpretation and construction of contract provisions is a function for the courts. Id. Upon appeal, we employ the same standard of review as applied by the trial court, that is, unless the terms of the contract are ambiguous, they will be given their plain and ordinary meaning. Id. Where the terms of a contract are clear and unambiguous, the terms are conclusive, and we will not construe the contract or look to extrinsic evidence, but will merely apply the contractual provisions. Id. The terms of a contract are not ambiguous merely because the parties disagree as to the proper interpretation of the terms. Id.

In their respective briefs, Jerry and Margaret assert that the terms of their Settlement Agreement are unambiguous, but they disagree as to the proper interpretation of the terms regarding child support. Jerry and Margaret both direct us to the language of the Settlement Agreement. Jerry asserts that the terms of the Settlement Agreement clearly indicate that he and Margaret provided for two separate and distinct support scenarios— child support until the time "the minor children are able and elect to attend a college ...," and child support in the form of educational expenses associated with college when, and if, the minor child so decides.

Jerry argues that the language of the Settlement Agreement should be interpreted to mean that "when" Stephanie went off to college, he was obligated to pay only the expenses associated with such higher education "together with such support as the court may from time to time deem proper." Jerry focuses on the emphasized portions and argues that because the language is "permissive," it clearly indicates that the child support obligation of $280.00 per week terminated once Stephanie went to college, and that he was not obligated to pay non-educational child support unless a subsequent support order was entered.

Our review of that portion of the Settlement Agreement indicates that the provision concerning child support is clear and unambiguous. However, we do not accept Jerry's interpretation as to how it should be construed. The Settlement Agreement does not provide that Jerry's non-educational child support obligation terminated when Stephanie went to college. Giving the terms their plain and ordinary meaning, it is apparent that Jerry was obligated to pay non-educational child support in addition to college expenses "[w]hen either of the minor children [were] able and elect[ed] to attend a college." The language "together with such support as the court may from time to time deem proper" is appropriately construed, not as suggested by Jerry, but as permitting the court to further modify the then current amount of non-educational support if such was later determined to be inappropriate given the circumstances. We therefore conclude that pursuant to the Settlement Agreement, Jerry was obligated to pay non-educational support in the amount of $280.00 per week from August 24, 1996 through August 24, 1999.

Given that we have concluded that Jerry was obligated to pay non-educational child support in addition to college expenses, we now address Jerry's argument that he is entitled to a credit against his arrearage for the time Stephanie was away at college and he provided support by paying all of her college expenses. Specifically, Jerry asserts that it would amount to a windfall to pay Margaret the arrearage for expenses she did not incur.

It is a long-standing rule that the non-custodial parent may not unilaterally reduce a child support obligation but must make payments in the manner, amount, and at the times required by an in gross support order until a court orders a modification or all of the children are emancipated or reach the age of twenty-one years. Thacker v. Thacker, 710 N.E.2d 942, 944 (Ind.Ct.App.1999); Nill v. Martin, 686 N.E.2d 116, 117 (Ind.1997); Kirchoff v. Kirchoff, 619 N.E.2d 592, 596 (Ind.Ct.App.1993). An extension of this rule is that any modification of a support obligation may relate back, at the earliest, to the date a petition to modify was filed. Beehler v. Beehler, 693 N.E.2d 638, 641 (Ind.Ct.App.1998). Indeed, a court is without power to retroactively modify an obligor's duty to pay a delinquent child support obligation. Ind.Code § 31-16-16-6 (Burns Code Ed. Repl.1997); Beehler, 693 N.E.2d at 640. "[O]nce funds have accrued to a child's benefit under a court order, the court may not annul them in a subsequent proceeding." Martin, 686 N.E.2d at 118.

Here, Jerry's argument is essentially a request for us to disregard the Settlement Agreement and retroactively modify his child support obligation. Jerry and Margaret executed a Settlement Agreement wherein they agreed upon the terms of child custody and child support, including a provision which required Jerry to pay college expenses in addition to non-educational child support. Jerry and Margaret subsequently modified the amount of non-educational child support, and it is this in gross support order which remained in effect until the court ordered a modification or Stephanie turned twenty-one. At no time, however, did either Jerry or Margaret petition to modify or terminate the then existing child support order. Thus, Jerry was obligated to pay Stephanie's college expenses and make the support payments in the manner, amount, and at...