Statzell v. Gordon
| Decision Date | 12 November 1981 |
| Docket Number | No. 2-381A97,2-381A97 |
| Citation | 427 N.E.2d 732 |
| Parties | Margaret STATZELL, Appellant (Plaintiff Below), v. Stephen M. GORDON, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
Edward V. Minczeski, Chapleau, McInerny, Minczeski & Farabaugh, South Bend, for appellant.
Richard A. Molique, Logansport, for appellee.
Margaret Statzell (Margaret) appeals from the denial of her Petition to Establish Amount of Judgment, alleging that the denial is not supported by the evidence and is contrary to law.
We reverse.
The marriage of Margaret and Appellee Stephen Gordon (Stephen) was dissolved in the Circuit Court of Cass County, Indiana, on June 6, 1973. The parties had one son, Michael, born July 29, 1955. The decree incorporated a property settlement agreement, Article I of which provides:
Michael enrolled at Purdue University in September 1973 and continued as a full-time student through June 1977. At that time he lacked one credit towards his degree, which he later completed, and was graduated in August, 1979.
Stephen paid Michael's college expenses for approximately 11/2 to 2 years. Stephen stopped payments, then, apparently because he was experiencing financial problems. Thereafter, Margaret made payments for Michael's college expenses.
In November 1975, Margaret filed an affidavit for citation against Stephen, alleging he was delinquent in payments for Michael's college expenses totalling $2685.33. The citation was dismissed January 16, 1976. Appellant's counsel conceded both in oral argument and in appellant's brief that the dismissal was most likely proper because Michael by then was emancipated, and a contempt citation was therefore an inappropriate remedy. See: Corbridge v. Corbridge (1952) 230 Ind. 201, 102 N.E.2d 764; Grace v. Quigg (1971) 150 Ind.App. 371, 276 N.E.2d 594.
Margaret continued to pay Michael's college costs, and on November 27, 1979, she filed a Petition to Establish Amount of Judgment in Cass Circuit Court, under the same Cause Number as the original decree. The Petition asked the court to determine that the amount due and owing to her from Stephen was $13,019.83. Stephen's answer, filed December 17, 1979, contended, inter alia, that Article I vested no rights in Margaret and did not constitute a judgment in her favor. A hearing was held on February 21, 1980, and on August 8, 1980, the court entered judgment against Margaret. In its Special Findings of Fact and Conclusions of Law the Court found that Margaret acted as a volunteer in making payments for Michael's college expenses. It also held that Article I of the Property Settlement Agreement vested no rights in Margaret and did not constitute a judgment in her favor.
Margaret argues on appeal that she paid $11,357.03 1 for Michael's college education which Stephen was obligated to pay and that in so doing she was not a "volunteer" and is entitled to reimbursement from Stephen.
Stephen concedes that this appeal may be resolved by the determination of one issue: whether Margaret was required to file an independent complaint and achieve jurisdiction by issuance and service of summons in a separate lawsuit in order to reduce the unfulfilled order for college expenses to a judgment independent of that represented by the original decree. Stephen contends that our Supreme Court's decision in Kuhn v. Kuhn (1980) Ind., 402 N.E.2d 989, requires that an independent lawsuit be commenced to recover payments alleged to be owed under the Property Settlement Agreement as incorporated in the decree rather than a petition such as the one Margaret filed, which was an outgrowth of the original action.
The First District of this Court originally held in Kuhn v. Kuhn (1st Dist. 1977) 172 Ind.App. 665, 361 N.E.2d 919, that a judgment for arrears was necessary before a support order could be enforced. In a second appeal after remand, the First District held that court ordered support installments become final judgments as they accrue, and therefore a second judgment for arrears is not necessary. Kuhn v. Kuhn (1st Dist. 1979) Ind.App., 389 N.E.3d 319. Margaret Statzell filed her Petition to Establish Amount of Judgment after the second appeal of Kuhn, but prior to the Indiana Supreme Court's consideration of the case on April 2, 1980. The Supreme Court in Kuhn v. Kuhn (1980) Ind., 402 N.E.2d 989, vacated the Court of Appeals' opinion, stating:
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