Julie D. Himes v. Todd A. Himes (mem. dec.)
2016 Ind. App. LEXIS 241
| Ind. Ct. App. | 2016Background
- Parents divorced in 1997 and in January 2014 executed a detailed Mediated Agreement allocating post‑secondary educational expenses for daughter Maggie (b. 1992) and son Bryant (b. 1994), naming the children as third‑party payees.
- The Mediated Agreement required father (Todd) to pay specified semester amounts contingent on the children meeting GPA thresholds; mother (Julie) and each child also had contribution obligations.
- Mother later filed contempt proceedings alleging father failed to pay his share for fall 2013, spring 2014, and some summer 2014 semesters; the trial court issued a Contempt Order finding nonpayment and holding father in contempt, ordering specific payments and attorney’s fees.
- Nearly a year later father petitioned to terminate the educational expense order and sought leave to have Maggie and Bryant intervene as parties (the children signed under penalty of perjury). A July 2015 hearing found a substantial arrearage (about $22,217 total). The children did not appear at the July hearing.
- In August 2015 the trial court: granted the children leave to intervene; terminated the educational expense order effective January 26, 2015; held mother’s overpayments were gifts; declined to hold father in contempt for the later period; and denied mother’s request for attorney fees. Mother appealed.
Issues
| Issue | Plaintiff's Argument (Himes) | Defendant's Argument (Todd) | Held |
|---|---|---|---|
| 1. Whether adult children were properly allowed to intervene | Intervention improper: children failed to comply with intervention rules and did not appear | Children were third‑party payees and asked to intervene; father’s petition sought their leave | Reversed: trial court abused discretion — children failed to follow Trial Rules and did not appear despite subpoenas |
| 2. Whether children may have exclusive right to pursue arrearage | Mother argued she should be able to enforce overpayments/arrears | Father/children argued payee status made them proper parties to collect arrears | Affirmed: children’s status as third‑party payees (agreed in Mediated Agreement) supports exclusive right to collect |
| 3. Whether terminating the educational expenses order was proper | Mother: no substantial and continuing change in circumstances to justify termination | Father: changed circumstances (e.g., Maggie’s bursar refund, Bryant’s co‑op earnings) justify termination | Reversed: termination was an abuse of discretion — father failed to meet burden to show substantial, continuing change |
| 4. Whether father should be held in contempt and mother awarded fees for contempt | Mother: father willfully disobeyed Contempt Order; contempt sanctions and attorney fees appropriate | Trial court: wouldn’t find contempt because children joined in termination and father provided informal support | Reversed: evidence shows willful noncompliance; trial court erred in declining contempt finding; remanded to determine attorney fees as sanction (sanction may exceed fees) |
Key Cases Cited
- Citimortgage v. Barabas, 975 N.E.2d 805 (Ind. 2012) (standard of review for motions to intervene)
- White v. Vermillion County Bd. of Zoning Appeals, 568 N.E.2d 1106 (Ind. Ct. App. 1991) (timeliness and procedural requirements for intervention)
- Reno v. Haler, 734 N.E.2d 1095 (Ind. Ct. App. 2000) (mediated agreements ordinarily enforced absent unfairness or fraud)
- Schacht v. Schacht, 892 N.E.2d 1271 (Ind. Ct. App. 2008) (educational expenses treated as child support)
- Carpenter v. Carpenter, 891 N.E.2d 587 (Ind. Ct. App. 2008) (voluntary overpayments of child support may be treated as gratuities/gifts)
- Sutton v. Sutton, 773 N.E.2d 289 (Ind. Ct. App. 2002) (contempt requires willful disobedience; appellate standard of review)
- Adler v. Adler, 713 N.E.2d 348 (Ind. Ct. App. 1999) (trial court’s authority to compensate aggrieved party for losses from contempt)