Whitman v. Whitman, 2-378A95

• Decision Date: 17 June 1980
• Docket Number: No. 2-378A95,2-378A95
• Citation: 405 N.E.2d 608
• Parties: Cheryl WHITMAN, Appellant (Respondent and Cross-Petitioner Below), v. Don Edward WHITMAN, Appellee (Petitioner Below).
• Court: Indiana Appellate Court

Page 608

405 N.E.2d 608

Cheryl WHITMAN, Appellant (Respondent and Cross-Petitioner Below), v. Don Edward WHITMAN, Appellee (Petitioner Below).

No. 2-378A95.

Court of Appeals of Indiana, Second District.

June 17, 1980.

Raymond I. Klagiss and Charles E. Johnson, Heeter, Johnson, Salb & Jones, Indianapolis, for appellant.

Michael A. Kiefer and J. Gregory Garrison, Graber & Sandifer, P. C., Indianapolis, for appellee.

SHIELDS, Judge.

Wife appeals the trial court's judgment modifying custody of the parties' minor children and determining Husband's delinquent support obligation.

Reversed in part; affirmed in part.

Under terms of the 1974 decree dissolving the parties marriage, Wife was granted custody of their two children and Husband was ordered to pay $15 per week for each child as support. In August, 1977 Husband filed a petition to modify the custody order alleging a substantial change of conditions. Wife then petitioned to cite Husband for contempt for unpaid support of more than $1,000. ¹ After a consolidated hearing on the petitions, the trial court found Husband delinquent under the support order, although not in contempt. Specifically considering expenditures made by Husband, the trial court ordered Husband's delinquency satisfied by the transfer of $450 to Wife. ² The trial court also found a substantial change of conditions warranted transfer of the custody of the children to Husband.

Wife contends the trial court abused its discretion and acted contrary to law by

(1) modifying the original custody order,

(2) computing Husband's support delinquency to allow for his expenditures for the children; and

(3) failing to find Husband in contempt for not paying the required support;

Modification of Custody

IC 31-1-11.5-22(d) (Burns Code Ed., Supp.1979) permits the trial court to modify custody provisions only upon "a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable." The trial court's determination that conditions justify modification rests in its sound discretion, and to challenge this determination Wife must demonstrate the trial court abused its discretion. Campbell v. Campbell, (1979) Ind.App., 396 N.E.2d 142, 143.

Although the evidence is conflicting, that favorable to the trial court's decision supports a finding of a substantial change of circumstances. ³ During the three years the children were in Wife's custody they had moved seven times. There was evidence indicating that for a period in 1976 the children's living quarters were cramped and unsanitary. When the children visited with Husband and his new wife in summer, 1976, the children were initially so unruly that one babysitter threatened to quit. However, their behavior improved over the summer and the children were described as healthier looking after their visit with Husband. Husband's ability to care for the children had substantially improved since the decree, he had bought a home with room to accommodate the children and was married to a woman who cared for the children and for whom the children had affection. In the latter part of 1976, Wife and the children moved to Georgia with Husband's consent, but for several months Husband was unable to locate them.

However, IC 31-1-11.5-22(d) requires that prior to modifying a custody order the trial court determine not only that changed conditions be substantial but that they be continuous. The evidence presented at trial relates to conditions dating one to one-and-one-half years prior to the hearing. There was no evidence that the conditions continued even months before the modification determination. Indeed, uncontroverted evidence presented by Wife indicates the children most recently were not unruly nor dirty and were doing well in school. ⁴ At the time of the hearing Wife was providing as much living space for the children as Husband, each child having a separate bedroom.

When reviewing the trial court's discretionary determination, this Court examines the evidence to determine if there is any evidence supporting the trial court's determination; and it is only when the trial court's determination is "against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be draw therefrom" that we will reverse. Marshall v. Reeves, (1974) 262 Ind. 107, at 115, 311 N.E.2d 807, at 812. The overlying concern in any custody determination is the best interest of the child. Franklin v. Franklin, (1976) Ind.App., 349 N.E.2d 210. When initially determining the custodian of a child in a dissolution, IC 31-1-11.5-21(a) (Burns Code Ed., Supp.1979) requires the court make its determination "in accordance with the best interests of the child." At that point, there is no presumption favoring either parent, the statute requiring certain factors to be considered by the trial court, all focusing on the child's welfare. ⁵ Once the initial determination has been made pursuant to these guidelines, a petition seeking modification must establish a substantial and continuing change in the original conditions necessitating the modification. IC 31-1-11.5-22(d). Such strict showing promotes the stability of the child, therefore ensuring the child's best interests will be paramount.

Because there is no evidence to support a finding that any changes continued to affect the children so as to make its original order unreasonable, ⁶ we find the trial court abused its discretion in modifying its earlier custody order.

Computation of Delinquency

Specifically considering expenditures made by Husband, the trial court ordered Husband to transfer $450 to Wife in satisfaction of his delinquency. At the hearing Husband had affirmatively defended a delinquency of approximately $1350 by requesting the court reduce that amount by expenditures for clothing, toys, food, and entertainment which he directly furnished the children. He additionally requested credit for actual support furnished by him May through August, 1976 while the children were in his custody.

Wife contends the trial court's allowance for Husband's payments not conforming to the support order effected a retroactive modification of the order and was therefore contrary to law. Husband responds the trial court was merely acknowledging compliance with the purpose of the support order to care and provide for the children.

As Husband indicates, an order for child support, established as part of a dissolution action, is intended to provide for the support and maintenance of the parties' minor children. IC 31-1-11.5-12 (Burns Code Ed., Supp.1979); In re Marriage of Honkomp, (1978) Ind.App., 381 N.E.2d 881, 882. In accordance with this duty the trial court frames its order establishing the obligated parent's legal responsibility to support the children, retaining continuing jurisdiction to modify that responsibility when conditions require. Brokaw v. Brokaw, (1980) Ind.App., 398 N.E.2d 1385; See IC 31-1-11.5-17 (Burns Code Ed., Supp. 1979). ⁷ All modifications to a support order, however, must operate prospectively. Jahn v. Jahn, (1979) Ind.App., 385 N.E.2d 488. Until the terms of the support order are modified, the obligated parent must make the payments in the manner, amount, and at the times required by the original order. Stitle v. Stitle, (1964) 245 Ind. 168, 197 N.E.2d 174. This court has therefore refused to credit individual debts of the custodial parent paid by the obligated parent but not provided for in the support order against the obiligated parent's support obligation, In re Honkomp, supra ; and has treated excess payments made by an obligated parent pursuant to an extrajudicial agreement with the custodial parent as voluntary contributions. Haycraft v. Haycraft, (1978) Ind.App., 375 N.E.2d 252. By promoting stability in enforcement of the orders, these restrictions on modification of support orders ensure the best interest of the child will remain the paramount concern in a support determination. Cf. Franklin v. Franklin, (1976) Ind.App., 349 N.E.2d 210 (The guiding principle of the Dissolution of Marriage Act, IC 31-1-11.5, is the best interest of the child).

Arguing his expenditures provided direct support for the children and thus complied with the purpose of the support order, Husband attempts to distinguish his situation from those present in Honkomp and Haycraft. He argues he cared for and supported his children during the summer of 1976 and also provided them with the type of support which he thought Wife failed to adequately provide with the support payments she received clothing, toys, food, and entertainment. ⁸ He concludes because the children are the beneficiaries of the support order, the trial court properly credited him for support furnished in compliance with that order.

Indiana appellate decisions assume divergent approaches to this issue. In Franklin v. Franklin, (1976) Ind.App., 349 N.E.2d 210, this court held that because "(t)he purpose of the support payments is to provide for the support and maintenance of the minor child." the trial court did not abuse its discretion by crediting husband's delinquency for the period the child was in his custody and husband was in fact supporting him. However, in Jahn v. Jahn, (1979) Ind.App., 385 N.E.2d 488, this court held case law requiring all modifications of a support order be prospective prevented the trial court from crediting husband for the period he had custody of the children.

Courts of other jurisdictions also reach conflicting results. Appellate decisions allowing the trial court discretion to credit the obligated parent for nonconforming payments have emphasized the equitable nature of the proceedings. Although an obligated parent is generally required to abide by the specific terms of the support order, "compulsion of circumstances" may allow him credit for nonconforming payments. The Alabama Supreme Court found circumstances sufficient to allow...