Tucker v. Tucker

• Decision Date: 26 June 1980
• Docket Number: No. 1-1279A336,1-1279A336
• Citation: 406 N.E.2d 321
• Parties: In re the Marriage of Judith A. TUCKER, Appellant (Petitioner Below), v. Frankie L. TUCKER, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 321

406 N.E.2d 321

In re the Marriage of Judith A. TUCKER, Appellant (Petitioner Below), v. Frankie L. TUCKER, Appellee (Respondent Below).

No. 1-1279A336.

Court of Appeals of Indiana, First District.

June 26, 1980.

Mark W. McNeely, McNeely & Sanders, Shelbyville, for appellant.

RATLIFF, Judge.

STATEMENT OF THE CASE

Appellant appeals from an award of increased child support payments in the

amount of $3.80 per week and of attorney's fees in the amount of $100 alleging that both are inadequate.

FACTS

Judith A. Tucker Goode (Goode) and Frankie L. Tucker (Tucker) were divorced in June 1975, whereupon Goode was awarded custody of the parties' two minor children, Elizabeth, aged 8, and Frankie, Jr., aged 4. Tucker was ordered to pay $30 per week total child support. In August 1976 the support order was modified to $38 per week and, in addition, Tucker was ordered to pay any reasonable medical and dental expenses incurred by the children. At that time Tucker was earning a base pay of $120 per week as an hourly employee of K. T. Corporation. At the time of appellant's petition in this case, however, Tucker was earning $285 per week as a salaried employee of the same corporation. On July 27, 1979, the court ordered an increase in support payments from $38 per week to $41.80 per week and also awarded appellant $100 in attorney's fees.

ISSUES

Appellant contends that the trial court committed reversible error in three respects:

1. The trial court abused its discretion in modifying the support order from $38 per week to $41.80.

2. The trial court erred in excluding evidence of all financial resources available to Tucker's household.

3. The trial court erred in awarding only $100 in attorney's fees to appellant.

DISCUSSION AND DECISION

We note at the outset that appellee has filed no brief in this case. Therefore, appellant need make only a prima facie showing of reversible error in order to upset the trial court's decision. Jahn v. Jahn, (1979) Ind.App., 385 N.E.2d 488.

On appeal, a modification of a support order pursuant to IC 1971, 31-1-11.5-17 (Burns Code Ed., 1979 Supp.) is reviewable only for abuse of discretion. Macauley v. Funk, (1977) Ind.App., 359 N.E.2d 611. Ind. Code 31-1-11.5-17 provides that while orders for child support may be modified, "(s)uch modification shall be made only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable." It is clearly an abuse of the trial court's discretion to modify a support order when there has been no showing of changed circumstances so substantial or continuing as to warrant a change in the support order. Loeb v. Loeb, (1969) 252 Ind. 96, 245 N.E.2d 831. When the trial court determines that substantial and continuing changes in the circumstances of the parties has occurred so as to warrant a change in the order, however, the amount of the award, is within the sound discretion of the court. Jahn v. Jahn, supra. "When confronted with such a petition to modify, the trial court must consider the totality of the circumstances involved in order to ascertain whether the modification is warranted." Id., 385 N.E.2d 488, at 491-492. Ind. Code 31-1-11.5-12 spells out the most obvious factors and circumstances which courts must consider in making an award of child support:

"(1) The financial resources of the custodial parent;

"(2) Standard of living the child would have enjoyed had the marriage not been dissolved;

"(3) Physical or mental condition of the child and his educational needs; and

"(4) Financial resources and needs of the noncustodial parent."

It is only where the result reached is clearly against the logic and effects of the circumstances before the court that an abuse of discretion will be found. In re Marriage of Osborne, (1977) Ind.App., 369 N.E.2d 653, tr. denied.

Under the facts of this case we note that the evidence reveals an increase in the noncustodial parent's resources of over 130%, whereas the increase in support granted was only 10%. During the period under consideration Tucker's income increased from approximately $120 per week to $285 per week; no unusual or concomitant increase in expenses was shown. We note also that there has been no substantial or continuing change in the income of the custodial parent, although there was evidence of her remarriage which could conceivably result in a substantial and continuing change in her resources. There was also evidence that she had been employed for short periods of time subsequent to the divorce and that she was currently seeking employment. Any references to the custodial parent's earnings or earning ability were not admitted by the trial court. Likewise, evidence as to other financial resources available to the noncustodial parent were not admitted into evidence by the trial court, and appellant alleges this as error. Because appellant failed to make an offer of proof, however, she failed to preserve this issue for appeal. Gradison v. State, (1973) 260 Ind. 688, 300 N.E.2d 67. We would point out that the financial resources of both the custodial and noncustodial parent are relevant in child support cases under I.C. 31-1-11.5-12 and certainly should be included in the totality of the circumstances to be considered by the trial court in making an award. See, Jahn v. Jahn, supra. We would note further that the evidence revealed that the children at the time of the hearing aged almost twelve and eight had increased physical and educational needs. The daughter, Elizabeth, was about to enter...