Wendorf v. Wendorf

• Decision Date: 31 August 1977
• Docket Number: No. 3-975A198,3-975A198
• Parties: Robert H. WENDORF, Appellant, v. Dian WENDORF, Appellee.
• Court: Indiana Appellate Court

Page 703

366 N.E.2d 703

174 Ind.App. 172

Robert H. WENDORF, Appellant, v. Dian WENDORF, Appellee.

No. 3-975A198.

Court of Appeals of Indiana, Third District.

Aug. 31, 1977.

Cohen & Cohen, Cicil B. Cohen, Stephen B. Cohen, Thomas R. Bullard, East Chicago, for appellant.

Robert J. Walker, Chesterton, for appellee.

GARRARD, Judge.

This is an interlocutory appeal from a provisional order entered in a marriage dissolution proceeding. The husband argues that the court abused its discretion in the determination of the amounts to be paid by the husband for temporary maintenance and for support for the four minor children of the parties, ¹ and for attorney fees pendente lite. ² We affirm.

At the outset we reiterate three principles developed under prior law which apply with equal force to interlocutory orders of this nature entered in proceedings under the Marriage Dissolution Act, IC 1971, 31-1-11.5-1 et seq. (Burns 1977 Supp.).

First, the determination of temporary maintenance and child support is committed to the sound discretion of the trial court even though the statute alters the common law duty of the husband to support the family regardless of the means of the wife. See, Castor v. Castor (1975), Ind.App., 333 N.E.2d 124.

Secondly, on appeal we will consider the evidence most favorable to the court's decision. We will then reverse only where the decision is clearly against the logic and effect of the facts and circumstances before the court. McFarlan v. Fowler Bank City Trust Co. (1938), 214 Ind. 10, 12 N.E.2d 752.

Finally, while the trial court's decision on temporary, or pendente lite, orders is reviewable for an abuse of discretion, in exercising its discretion the court may properly consider the temporary duration of the order. Thus, in matters of maintenance and support the court must consider the needs of the receiving party and the resources available to meet them. See, e. g., Snider v. Snider (1913), 179 Ind. 583, 102 N.E. 32; Bill v. Bill (1972), 155 Ind.App. 65, 290 N.E.2d 749. However, the court may also consider the prospective temporary duration of the order and the ability for further modification should that become necessary. It does not establish an abuse of discretion per se that a temporary order for support requires a husband to exceed his present earnings and invade his assets or borrow funds. Bill v. Bill, supra ; cf., Crowe v. Crowe (1965), 247 Ind. 51, 211 N.E.2d 164. Moreover, the broader purpose of a support award, within the limitation of available resources, is to provide for minor children the standard of living they would have enjoyed had the marriage not been dissolved. IC 1971, 31-1-11.5-12(a)(2).

The court ordered the husband to pay temporary support and maintenance for four minor children and the wife in the amount of $200 per week. The husband attacks this figure on two grounds. First, that the wife failed to establish need for this amount, and secondly that the court ignored his ability to pay.

As to the family's need, it is clear the wife was unemployed and had no special qualifications for employment. While there is some conflict in the evidence, that favoring the result and detailing the cost of operating the household was ample to support a figure of two hundred dollars ($200) per week. ³

Husband next argues that, assuming arguendo a two hundred dollar ($200) order was justified by need, it was an abuse of discretion to find he could pay this amount. The principal misconception in this argument, maintained throughout appellant's brief, is that the trial court may look only to a party's current weekly net earnings in determining what he may reasonably pay for support.

The evidence established that the husband currently received weekly paychecks in the amount of $225 as director of operations for American Transit Lines, Inc. He grossed another $1,000 per month as vice president of Calumet Storage and Transfer Corp. From this latter salary, $850 per month was paid to a former wife pursuant to an Illinois decree. ⁴ However, the evidence viewed most favorably to the wife also established the following: The husband received bonuses from his employer the 1975 bonus having been $4,000. He had additional income from sale of commodities such as steel and anti-freeze. Profit on these transactions in 1975 had been approximately $2,800. In 1975 his tax refund was $3,200. He was owed $393 from an individual which was to be paid within ninety days. Additionally, the evidence established that in 1974 he had purchased a motor home for $10,000 cash. In 1975 he had paid $4,000 for cosmetic surgery for the wife and had purchased a $12,000 boat on credit. From this evidence the court could reasonably infer his ability to pay the necessary temporary support and maintenance of $200 per week. ⁵

Finally, it is argued that the court erred in ordering the husband to pay $500 as attorneys' fees for the benefit of the wife's attorneys.

IC 1971, 31-1-11.5-16 provides:

"The court from time to time may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter (31-1-11.5-1 31-1-11.5-24) and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceedings or after entry of judgment. The court may order the amount to be paid directly to the attorney, who may enforce the order in his name."

It vests the court with board discretion in awarding allowances for attorney fees. In exercising this discretion the court may look to the superior earning power of one of the parties. While it must...