Whited v. Whited
| Decision Date | 28 March 2006 |
| Docket Number | No. 34A02-0507-CV-626.,34A02-0507-CV-626. |
| Parties | Kathy L. WHITED, Appellant-Respondent, v. Kenneth B. WHITED, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
Dan J. May, Kokomo, for Appellant.
Timothy P. Spahr, Peru, for Appellee.
Kathy L. Whited ("Kathy") appeals the trial court's final order on her petition to modify support, petition to emancipate children, complaint for determination of arrearages on support, and motion for rule to show cause for contempt. We affirm.
Kathy presents seven issues for our review, which we consolidate and restate as the following four:
I. Whether the trial court abused its discretion by ordering a retroactive modification of the child support obligation of Kenneth B. Whited ("Kenneth");
II. Whether the trial court abused its discretion by using the current child support guidelines to calculate a retroactive visitation credit;
III. Whether the trial court abused its discretion by denying prejudgment interest on Kenneth's delinquent child support obligations; and
IV. Whether the trial court abused its discretion by denying Kathy's request for attorney fees.
We adopt the trial court's findings of fact, which are, in pertinent part, as follows:
1. This Court has personal jurisdiction over the parties and subject matter jurisdiction over pending matters in this case.
2. Petitioner (hereinafter referred to as "Kenneth") and Respondent (hereinafter referred to as "Kathy") were married on September 8, 1973.
3. Kenneth and Kathy had four children, three of whom survived to adulthood. The latter three are the only children with regard to whom there is a present child support dispute.
4. The surviving children's names are Faith Frazier, f/k/a Faith Whited, DOB: January 22, 1974; Benjamin Whited, DOB: May 14, 1975; and Joshua Whited, DOB: March 9, 1977.
5. The parties' marriage was dissolved on or about December 18, 1979, with Kathy receiving custody of the parties' children.
6. An Order dated November 25, 1980, transferred custody of the children to Kenneth.
7. Then, by way of an Order dated December 5, 1985, custody of the children was transferred back to Kathy.
8. No other Orders transferring custody of the children or emancipating them were entered.
9. At various times during the ensuing years, one or more of the children would travel to Kenneth's home, either to reside with him for a time or for extended periods of visitation.
10. While Kenneth was subject to an "in gross" child support order, during times when one or more of the children had an extended stay with Kenneth he reduced the amount of child support that he paid according to the number of children he had with him at the time. When one child was with him and two children were with Kathy, Kenneth paid two-thirds of this court ordered support obligation. When two children were with him and one child was with Kathy, Kenneth paid one-third of his court ordered support obligation. Finally, when all three children were with him, Kenneth did not pay any portion of his child support obligation.
11. During those times, Kathy provided Kenneth no funds whatsoever for the care or support of the children. Kenneth provided any and all funds for the care and general assistance of the children during those times when they lived with him and not with Kathy.
12. On August 2, 1990, Kathy filed a Petition to Modify Support, Motion for Wage Assignment/Determination of Arrearages, and Motion for Rule to Show Cause. While that pleading was pending, a deposition of Kathy was taken on September 27, 1990. That deposition was subsequently filed and made a part of the Court's file.
13. During said deposition, Kathy acknowledged that "you can usually tell by my support records when the children were with him and not with me." Deposition, September 27, 1990, at 31.
14. Kathy further acknowledged during said deposition that she did not believe that Kenneth owed her "a support payment for any of the periods of time that the children actually resided with him under his care and control and under his roof." Id., at 103.
15. She further acknowledged during said deposition that "[Kenneth's] always been pretty good about paying me support." Id., at 104. Kathy also acknowledged during said deposition that she was making no claim for any unpaid support during times when one or more of the children were with Kenneth.
16. Subsequent to the taking of Kathy's deposition on September 27, 1990, Kenneth's child support obligation was increased to $173.00 per week, beginning on March 15, 1991.
17. The Order, like previous orders in the case, did not provide for Kenneth to make reduced child support payments when one or more of the children were with him.
18. Eventually, all three of the children left Kathy's home in Florida to return to Indiana.
19. Due to the passage of a significant amount of time, the memories of all involved make it difficult to set a time line for all relevant events.
20. However, because of the arrangement under which Kenneth would reduce his child support payments when children were with him, Kenneth's child support payment history offers some guidance. The presence of one or more of the children in Indiana can be tracked by reviewing Kenneth's support payment records in order to clarify the parties' other testimony.
21. Beginning around the end of December 1992, Benjamin moved back to Indian[a] to live on Kenneth's property. Benjamin was no longer in school and held a full-time job, first at Mace's grocery store in Peru, Indiana, and then, when he was 18 years old, with Chrysler in Kokomo, Indiana.
22. Joshua moved back to live on Kenneth's property in November 1993. He, too, never returned to school and consistently held a full-time job after that point.
23. Having graduated from high school in June 1993 and never having returned to school thereafter, Faith moved back to Indiana, apparently somewhere between November 1993 and April 1994.
24. It is disputed and unclear how much time Faith spent in her father's home after her return to Indiana. Conflicting testimony indicated that Faith may have been in Kenneth's home for up to four months. Faith also apparently spent some time living in her grandmother's home and on her own in an apartment with a friend.
25. As was the case at all times when the children lived with Kenneth, while Faith was living outside Kenneth's home in Indiana, Kathy did not provide any financial support to Faith.
26. Faith held a series of jobs during 1994 and 1995. In 1994, she held jobs with Hardee's, a/k/a Norris Food Service, Inc., in Kokomo, Indiana; Century Villas, Inc., in Greentown, Indiana; and Manorcare Health Services, Inc., in Indiana, as well. In 1995, she held jobs with Manorcare Health Services, Inc., and Miller's Health Systems, Inc., in Indiana. She then held jobs with three more employers in Florida.
27. Based upon the employment records submitted to the Court, it appears that Faith did not return to Florida until at least February 1995, if not even later.
28. By the time she returned to Florida, she was 21 years old, having reached that age on January 22, 1995.
29. In this case, the parties have agreed that, without question, all of the children were emancipated no later than March 9, 1995, when Joshua reached the age of 18, and so Kenneth's basic child support obligation would not in any event have accrued after that date.
30. Pursuant to the parties' past agreement as acknowledged by Kathy on September 27, 1990, for the remainder of the time that Kenneth paid child support to Kathy, he continued to reduce his child support payments according to the number of the children who were staying with him and/or not living with Kathy at the time, and by agreement of the parties, Kathy continued to not give any funds whatsoever to Kenneth for the care of the children or to the children themselves while they were with him.
31. Kenneth made his last child support payment on November 10, 1993.
32. As of April 22, 2004, Faith was 30 years old, Benjamin was 28 years old, and Joshua was 27 years old.
33. Over a period of approximately one year (between late 1992 and early 1994), all three of the children moved out of Kathy's home and returned to Indiana to live with Kenneth. Benjamin and Joshua never returned to Kathy's home, and Faith only returned after she had reached the age of 21 and had been emancipated.
34. Kathy did not pay any child support to Kenneth during the whole time that the children lived with him, even though it was undisputed that Kenneth was paying a substantial amount of money for the children's care while they were living in Indiana.
On April 22, 2004, Kathy filed a petition to modify support, petition to emancipate children, complaint for determination of arrearages on support order, and motion for rule to show cause for contempt. On April 27, 2004, Kathy filed a motion for change of venue, which the trial court granted the next day. The case was transferred to Howard Superior Court III on May 17, 2004. On January 4 and February 2, 2005, the trial court heard evidence in the case. On March 24, 2005, the trial court issued its findings of fact and conclusions thereon and directed the parties to file proposed child support arrearage calculations.
On April 25, 2005, Kathy filed a motion to correct error, motion for entry of new findings of fact and conclusions thereon, and a calculation of child support arrearage. On May 10, 2005, Kenneth filed a statement in opposition to Kathy's motion to correct error. On May 17, 2005, the trial court issued its final order. The court's conclusions state, in pertinent part:
9. The court calculates the arrearage and parenting time credit as follows:
(a) From March 1, 1991 through March 9, 1995 [Kenneth] paid $16,817.83 in support. (March 1, 199[1] is the day the support order was modified to...
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Whited v. Whited
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