Ort v. Schage

• Decision Date: 30 October 1991
• Docket Number: No. 20A03-9104-CV-107,20A03-9104-CV-107
• Citation: 580 N.E.2d 335
• Parties: David L. ORT, Appellant-Respondent, v. Sabella E. (Ort) SCHAGE, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 335

580 N.E.2d 335

David L. ORT, Appellant-Respondent, v. Sabella E. (Ort) SCHAGE, Appellee-Petitioner.

No. 20A03-9104-CV-107.

Court of Appeals of Indiana Third District.

Oct. 30, 1991.

Charles C. Wicks, Elkhart, for appellant-respondent.

John J. Gaydos, Elkhart, for appellee-petitioner.

HOFFMAN, Judge.

On November 15, 1971, the trial court dissolved the marriage of David and Sabella Ort. The dissolution decree provided Sabella with custody of the couple's only child, Julie Ann, then age 12. David received reasonable visitation rights and was ordered to pay $10.00 per week child support until further order of the court. On May 14, 1990, Sabella filed a motion for rule to show cause why David should not be held in contempt of court for non-payment of support since the date of the decree. The court held a hearing on the motion on November 7, 1990, and on January 10, 1991, the court denied the motion but entered judgment in favor of Sabella in the amount of $7,800.00. ¹ David filed a praecipe for the record of proceedings on January 16, 1991, and Sabella filed a motion to correct error on February 8, 1991, which the court denied that same day. This appeal and cross-appeal ensued.

David raises the following issues for review on appeal:

(1) whether the trial court erred in extending the support order beyond Julie Ann's 21st birthday without determining, prior to that time, that Julie Ann was incapacitated; and

(2) whether the trial court erred in finding that neither laches nor equitable estoppel barred Sabella's claim for unpaid support.

David claims the trial court erred in extending the support order beyond Julie Ann's 21st birthday without determining, prior to that time, that Julie Ann was incapacitated. IND.CODE Sec. 31-1-11.5-17(d) (1990 Supp.) provides in pertinent part that, absent an agreement or specific provision in the court order to the contrary, provisions for child support are terminated by the emancipation of the child. According to IND.CODE Sec. 31-1-11.5-12(d) (1988 Ed.), a child is emancipated upon reaching the age of 21; however, if the child is incapacitated, child support continues during the incapacity or until further order of the court. IND.CODE Sec. 31-1-11.5-12(d)(2). The undisputed evidence at the instant hearing disclosed that Julie Ann has been incapacitated since the age of 3 months. Although there was no mention in the 1971 divorce decree of any incapacity, the decree expressly provided that David was to pay $10.00 per week child support until further order of the court. (Emphasis supplied.) The court at no time terminated the original support order, and Julie Ann's incapacity occurred prior to her 21st birthday; therefore, a duty to support existed, and David was bound to comply with the original support order.

David also argues that the trial court's extension of the support order constitutes an improper retroactive modification. See Cardwell v. Gwaltney (1990), Ind.App., 556 N.E.2d 953, 954 (any modification of a support order must act prospectively). However, as previously discussed, the court neither modified nor extended the original order; it simply never terminated the order. Considering Julie Ann's incapacity, the court's decision was proper.

David further contends the trial court erred in finding that neither laches nor equitable estoppel barred Sabella's claim for unpaid support. A party raising the equitable defense of laches must show that the other party's delay in seeking relief was both unreasonable and prejudicial. Pickett v. Pickett (1984), Ind.App., 470 N.E.2d 751, 754. The defense of equitable estoppel is similar to the laches defense but contains the additional element of reliance. Id. at 754-755. In Pickett, this Court held that even if a custodial parent agrees to forego child support, an estoppel defense would not preclude the parent from asserting a claim for past due child support. Id. at 755. An agreement to forego child support is unenforceable because the parent has no right to contract away the child's support benefits. Id. Accordingly, the trial court did not err in finding that neither laches nor equitable estoppel barred the claim for unpaid support.

Sabella raises the following issues for review on cross-appeal:

(1) whether the trial court erred in failing to award interest on the delinquent child support payments;

(2) whether the trial court erred in failing to find David in contempt of court for his failure to pay child support; and

(3) whether the trial court erred in denying Sabella's request for attorney's fees.

First, Sabella claims the trial court erred in failing to award interest on the delinquent child support payments. In support of her claim, Sabella cites IND.CODE Sec. 31-6-6.1-15.5 (1990 Supp.) which states as follows:

"(a) A court may, upon application by a person or agency entitled to receive child support payments ordered by that court, order interest charges equal to one and one-half percent (1.5%) per month to be paid on any delinquent child support payment that occurs. An application may be made by the person or agency at the time the support order is issued or modified, or whenever support payments are not made in...