Smith v. Smith, 71A03-0212-CV-416.
| Decision Date | 15 August 2003 |
| Docket Number | No. 71A03-0212-CV-416.,71A03-0212-CV-416. |
| Citation | 793 N.E.2d 282 |
| Parties | In re the Marriage of Ronald Allen SMITH, Appellant-Respondent, v. Julie Ann SMITH, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
Aric J. Rutkowski, The Blanford Law Office, South Bend, IN, Attorney for Appellant.
Mark S. Lenyo, South Bend, IN, Attorney for Appellee.
Appellant-respondent Ronald Allen Smith appeals the trial court's order that he was in arrears on his child support obligation in the amount of $20,302.00 pursuant to a dissolution decree where the appellee-petitioner Julie Smith was granted custody of the parties' two minor children and Ronald was ordered to pay $76.00 per week in child support. Concluding that the trial court abused its discretion in ordering Ronald to reimburse Julie for all past due support because a de facto split custody arrangement existed between the parties and that it was erroneously determined that Ronald should not receive any credit toward an arrearage for the period of time that he had one of their unemancipated children in his custody, we reverse and remand.
The parties were married in 1976, and two daughters were born of the marriage. Heather was born on October 17, 1978, and Melissa was born June 16, 1980. In January 1996, Julie and Ronald entered into a settlement agreement which was "approved in open court and incorporated into the final decree" of dissolution. Appellant's App. p. 15. Pursuant to the agreement, Julie was given physical custody of the children, and Ronald was to "pay the sum of $76.00 per week" in gross for "support and maintenance of the two (2) minor children." Appellant's App. p. 12. The trial court ordered the parties "to comply with the terms of" their "approved and incorporated" agreement. Appellant's App. p. 7. The agreement also provided, "No modification or waiver of any of the terms or conditions of this agreement shall be effective unless executed in writing ... and duly filed with and approved by the court, or by further order of the court." Appellant's App. p. 15.
Almost immediately after the dissolution, Heather began living with Ronald in Florida and continued to live with him until the summer of 1998. During that time, Melissa continued to live with Julie and Ronald paid no support because he and Julie agreed that each parent would provide the support for the child in their care. In the summer of 1998, Heather moved back in with Julie and shortly thereafter, Melissa moved in with Ronald with whom she resided until she reached majority in June 2001. Again, Ronald paid no support in light of the agreement he made with Julie.
It is undisputed that neither party sought to modify the court's order with respect to custody or support. However, in April 2002, the State filed a petition seeking "to determine the amount of arrears owing" by Ronald to Julie and for the court to order his payment of such arrears. Appellant's App. p. 17.
On June 18, 2002, the trial court heard argument by counsel and testimony from Ronald and Julie as to where their daughters had resided through the years. Ronald argued that he should receive a credit against any support arrearage because he always had one of the two daughters living with him and Heather was emancipated in 1999. Following the hearing, the trial court observed that the parties were "in a pickle of their own creation." Appellant's App. p. 18. It then issued an order citing the absence of case law allowing for such a credit where there is a "support order for multiple children" that is "in gross"; and noting that if the imputed income shown for Ronald on the child support worksheet filed with the decree were used to calculate support for split custody, Julie would have had to pay an $8 weekly child support obligation to Ronald. Appellant's App. p. 19. The trial court directed the parties to submit further authority and argument.
Thereafter, the trial court reviewed the parties' submissions and concluded "that under the specific facts of this case, to-wit, an in gross order of support with a de facto split custodial arrangement not sanctioned by Court order, the Court has no authority under the existing case law to award credit for non-conforming payments." Appellant's App. p. 4.1 Its order also noted that the parties had "created this problem," which could have been avoided by seeking a modification of the court order. Appellant's App. p. 5. The trial court then concluded that "under the facts of this case," any credit against the arrearage would be "as much arbitrary as equitable" and found the arrearage to be the full amount as originally ordered from the date of the dissolution decree until the date that Melissa attained the age of 21. Appellant's App. p. 5. Ronald now appeals.
Decisions regarding child support generally rest within the sound discretion of the trial court. Painter v. Painter, 773 N.E.2d 281, 282 (Ind.Ct.App. 2002). We reverse such a determination only if there has been an abuse of discretion or the trial court's determination is contrary to law. Id. By the same token, the purpose of child support is the welfare of the child and not the punishment of the father. Rohn v. Thuma, 408 N.E.2d 578, 582 (Ind.Ct.App.1980). In some circumstances, a credit may be granted to the noncustodial parent in the event of nonconforming support payments. DeMichieli v. DeMichieli, 585 N.E.2d 297, 302 (Ind.Ct. App.1992). More specifically, the trial court may afford relief from an unmodified support order if the noncustodial parent has, by agreement with the custodial parent, assumed custody and has provided food, clothing, shelter, medical attention, and school expenses and has exercised parental control for an extended period. Isler v. Isler, 425 N.E.2d 667, 670 (Ind.Ct. App.1981).
Ronald contends that the trial court erred in holding him liable for the full amount of unpaid child support. Specifically, Ronald asserts that he should not be ordered to pay any support arrearage because he had primary custody of one of the children at all relevant times during the children's minority in accordance with the agreement he reached with Julie.
As noted above, circumstances do exist where a credit may be granted to the noncustodial parent in the event of nonconforming support payments. In DeMichieli, we observed that a credit will attach:
Where the obligated parent by agreement has taken the children in his or her home, assumed custody of them, provided them with necessities, and has exercised parental control over their activities for such an extended period of time that a permanent change of custody has in effect occurred.
DeMichieli, 585 N.E.2d at 302. This court has also determined that the conduct of the parties may create an agreement by implication with respect to a custodial arrangement in the absence of a written contract. The law creates the benefits and obligations of contract in order to promote justice and equity. Timothy F. Kelly & Assocs. v. Ill. Farmers Ins. Co., 640 N.E.2d 82 (Ind.Ct.App.1994). As this court observed in Retter v. Retter, 110 Ind.App. 659, 663-64, 40 N.E.2d 385, 386 (1942):
An implied contract, that is, one wherein an agreement is arrived at by the acts and conduct of the parties, is equally as binding as an express contract, wherein the agreement is arrived at by their words, spoken or written. In either case it grows out of the intention of the parties to the transaction.
Turning to the circumstances here, it is apparent that while Ronald and Julie did not enter into an express written contract concerning the custodial arrangement, their conduct gave rise to an agreement by implication. The undisputed evidence shows that Ronald exercised primary custody over one of his daughters at all relevant times during the child's minority. Both parties agreed to that arrangement and Julie did not raise a voice in protest until April 2002—more than six years after Heather began living with Ronald. Thus, while neither Julie nor Ronald took steps to modify the settlement agreement in the trial court, it is apparent that a true split custody arrangement was effectuated and continued to exist.
Given the similarities of the parties' incomes in this case, it made sense to both Julie and Ronald that they each would provide financially for the child in their care. Thus, it is certainly reasonable under these circumstances to conclude that neither party petitioned the court to modify the settlement agreement because doing so would be unnecessary. To that end, Ronald and Julie were able to communicate and cooperate with each other in deciding what was best for their children and what method of support was required. It is also without dispute that when Ronald took the children on separate occasions, he assumed custody of them, provided for their necessities of life and exercised parental control over their activities. Considering the extended period of time that Ronald performed in that fashion, it is apparent that a permanent change of custody occurred. Both parents were providing for their daughters in a manner that was acceptable to both of them, and it is obvious that they believed this arrangement to be in the children's best interests.
It was not until both children were emancipated by virtue of their twenty-first birthdays, and after more than six years of this de facto split custody arrangement, did Julie return to court and allege that Ronald failed to support his children and fell into arrears with respect to that obligation. In essence, Julie permitted Ronald to accumulate thousands of dollars in support arrearage, while at the same time he faithfully provided large sums of money for the girls' food, shelter, medical and other financial needs while they were in his custody. Had Julie protested the arrangement at an earlier time, Ronald could have sought a modification of the settlement agreement...
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