Cavazzi v. Cavazzi

attorney's nally, the award for we reverse

fees sanctions. part part.

Affirmed in and reversed SHIELDS, JJ.,

ROBERTSON and

concur. CAVAZZI, Appellant-Petitioner, CAVAZZI, Joyce

Appellee-Respondent.

No. 49A05-9104-CV-123. Indiana, Appeals

Court of District.

Fifth

Aug.19,1992. 12), 17, and (ages children

their three child, to on each insurance carry medical unreimbursable and uninsured pay all and to expenses, and dental medical years. The for two a month Maureen following provi- also contained decree sion: provide to shall [Maureen] "[William] salary ad- any

documentary of evidence during received award justment or bonus of 1990, notify shall and [Maureen] upon knowl- or bonus adjustments such same." edge of was added (R. 7). provision This because, although suggestion court's trial that Wil- knew and William Maureen both part the first a raise getting liam would be soon, they did a as well as April At the be. much it would how not know that the court requested Maureen hearing, Sentman, Ronald G. Wright and E. David support order "provisional" type of make a Densborn, & Wright Smith, Johnson, raise, which the amount based on appellant-petition- Heath, Indianapolis, for then asked do. Maureen court refused er. waive prospectively court to the trial T. Niemi- and William T. Gleason Charles 19(A). gener- Rule of Local restrictions Herrin, & Mercer er, Tuohy Gleason Wood from enter- al, prohibits appellee-respondent. Indianapolis, for year until a petition modification taining a support order. last the date after BARTEAU, Judge. exception where allow an (The rule does an ex- alleges and trial court's is verified appeals petition Cavazzi William adversely affects emergency obli- his child treme modifying the chil- not interests should and best petition the welfare argues the He gation. filed so it was Rule 19 sought granted because dren.) waiver have been She petition as file a modification could that she original order was months two a raise much of According to how she knew court. soon as trial by the entered refused get. The court of Marion would William, in direct violation William this is 16, April 19, the rule. On prohibiting, prospectively waive Rule County Local cireumstances, filing Maureen specific notified except in William year $79,000 than a April was less petitions salary, effective of modification new about received bonus We that he entered. had been last order after the for income gross $17,000. William's the modification. reverse agree and - salary and his bonus- 1989-including his $85,000. approximately was FACTS decree dissolution months after Two marriage of nineteen-year The petition to entered, in filed in divorce Maureen ended Maureen Cavazzi not petition was 15, modify the decree. March hearing on After April, 1990. emergency. allege an not and did divi- verified property as to agreement to $158 from $141 maintenance, sup- She sought an increase sion, spousal support based in child per child per week court's in the trial incorporated port was She income. increased on William's April decree dated dissolution Rule 19. waiver part, provided, decree in the any other request for each a week April order; 2 support however, peti- be served on opposite party who request contained a granted she "be all within ten after such service equitable other proper relief in the file counter affidavits opposing said re- premises." (R. 11). William moved to dis- quest Court, in its dis- miss the based on Rule and the cretion, shall then decide on the basis of trial court denied that motion. said sworn statements and any questions ask, he elects to whether said record August 31, indicates that on modifica- petition may be filed. found "LR. 19 waived" and hearing scheduled a on petition Maureen's duty It is the of counsel to determine for modification. After a November the amount of required time by both 1990, hearing, the trial court refused to sides for the hearing. hearing No will be increase weekly William's support obli- scheduled until stated, such time is and it gation, but sponte sua ordered William to will be limited to the time requested. pay of his daughter's 95% oldest college agreed An modification entry shall not expenses. evidence regarding col- approved be by the Court without a mod- lege expenses presented at this hearing petition ification having first been filed testimony. William's He testified setting forth the reasons for such modifi- upon questions from his counsel that he cation." had already paid daughter's his colleges expenses to Upon date. further petition Maureen's was not verified and did questioning by court, trial he stated it allege not that an emergency existed. She was his intent merely alleged: for his children's college education based on ability "That inasmuch as increased [William's] pay at the time and their ability. academic income is April 1, effective as of William was also ordered 40% and this Honorable Court's Decree was any net of performance future bonus "to April 2, 1990, effective re- [Maureen] as support'" and to [Maureen] spectfully requests that Rule 19 of the Maureen's attorney. subsequent William's Rules of Court of the Circuit Superi- motion to correct errors was denied. or Courts of County Marion concerning modification of support year within one DISCUSSION hearing last be waived." argues that the trial court (R. 11). However, argues she it was within should not have entertained pe the trial court's discretion to waive the tition requirements because the of Local provisions 19(A). of Rule 19(A), Rule as it existed at the time of the petition, had not been met. authority of the trial courts to provided This rule as follows:1 adopt rules, local long they as are not petition "No for modification of custo- inconsistent statute or prom dy children, ulgated by court, supreme spousal our or is without maintenance will be entertained question. unless a 34-5-2-2; Ind.Code Ind. Trial year full elapsed has from the date of Rule 81(A). Neither William nor Maureen the last decision of the Court pertaining argues that Rule 19 is inconsistent with a custody, to said support maintenance, or statute or supreme with a court rule.2 Ab except on showing by a petition verified argument, sent such an we will not address requesting hearing setting forth in question. Rather, we confine our dis detail an extreme emergency existing cussion to the parties; issue raised adversely affects the welfare and is, whether, having promulgated best interests of said spouse. children or rule, is bound to strict Copies of said emergency petition application shall of the rule. renumbered, 1. The 31-1-11.5-17, rules have since been alia, governs, Ind.Code inter 14(A) this rule is now found at Rule with some modification of child orders. deletions. ever, held that it is trial court has from the rule that supreme it is clear Our this discretion may only exercise court ex rel. rules. State by its own bound v. Decatur Circuit Crosby allegations of an extreme when faced emergency: court Ind. motion to dismiss respondent's entertained un- granted petition ... will be "No Petition for Writ the date petitioner's elapsed "Verified has less a full except on show- change of the last decision ... venue because Mandate" for a comply with the rele petition petition requesting hear- ing by verified procedure. rules of supreme setting in detail an extreme vant forth existing adversely af- emergency appellee's mo Likewise, granted this court appel appeal an because tion to dismiss and best interests fects the welfare argument emergency present Copies of said lant failed children]. [the opposite shall served on contentions, contrary to the mandate its McKilip (10) days appellate may rules. ten after party who within Poff Poff, 963. In Ind.App. oppos- 18 N.E.2d counter affidavits such service file occasionally Court, we recognized that the court request said discretion, meager on the in its shall then decide "disposed to overlook may be requirements of our of the performance sworn statements basis of said ask, own convenience so far as our said rules he elects to whether questions (em- may filed." petition be at modification at Id. concerned." phasis supplied). Ins. Co. v. quoting Franklin Wolff 534, 537, For N.E. 756. Ind.App. petition was filed nor was no verified strictly have held failure example, we emergen- allegation of an extreme there an requirements mechanical comply with the of the affect the welfare cy which would 8.3, governing the Rule Appellate Ind. Therefore, had no children. briefs, is not arrangement and contents to entertain Maureen's to decide discretion long the issues appeal as fatal to the petition. argument are merits of the raised and the interests of suggests that the Maureen See, Employment e.g., Stepp v. ascertainable. by technical served justice would (1988), Ind. Board Div. Review Se c. opinion, In our to this rule. adherence 350; Terpstra v. Form App., 521 N.E.2d compliance than anything other (1985),Ind.App., Merchants Bank ers and rule, in the face of William's particularly we 749. We do this because petition, would be objection to the specific case merits of the address the prefer to hearing in at the Maureen testified unjust. to fol dismissing it and failure instead getting a March that she knew William not necessar of the rule does low the letter hearing. Further- after the raise sometime of the case. ily preclude review more, obviously aware of attorney was however, he of Rule 19 because liberty, restrictions not at We are deter permit our rules that compliance with the rule to waive court to waive asked the appeal may entertain the we as soon as Wil- mine whether for modification petition (time App.R. place, such as amount of in the first Maureen of the notified liam (jurisdiction). However, Local limits) App.R. 4 the trial raise and bonus. it rules in that to these of the prospective Rule 19 is similar waiver court refused bringing comply the modi rule, attempt limitation for sets a time did not Maureen supreme as the petition. Just fication rule. provisions by the rules court are bound court and this entertaining Mau- erred The trial court regard, trial in this appellate procedure petition for unverified reen's rules. by their local also bound courts are after the divorce months some two filed less than a had been it Nonetheless, argues that decree because emergency was and no last order since the discretion to gives the trial court Rule 19 order trial court's order even alleged. We reverse permit modification obligation on modifying William's alleged. How- emergency though no supporting factual circumstances however, basis; will address we this that conclusion." in the court's order. specific errors guidelines provide a rebuttable ordering erred in The trial court presumption that the amount of the award First of pay college expenses. application which results from their is correct. all, did not contain a Tal arico v. Smithson Ind. college expenses. It was error request for App., 579 N.E.2d 671. When the trial court relief not for the court to order guidelines, deviates from the it "must set Lepper Lepper See deviating forth reason for from the [its] (1987), Ind., 509 N.E.2d 818. guidelines' reviewing amount so that as a Secondly, under IC. 81-1-11.5- may for the court we know basis 12(b), may parent order decision." at 673. court's Id. college education: for a child's here the court There is no indication con- "(b) order guidelines determining sidered the include, appropriate: where go of William's future bonuses should 40% "(1) ele- for the child's education in sums addition, support. and Mau- secondary mentary and schools and agree results in a reen higher learning, taking institutions of support obligation in excess of the amount aptitude and into account the child's application guide- through reached parent or ability ability and the of However, the court did not set forth lines. (em- expenses;" parents to meet these Accordingly, its reasons for its deviation. phasis supplied). this order must be reversed. However, ordering parent pay a to before find, however, that the court We do college expenses, the trial court child's attorney Maureen fees could have awarded aptitude hearing hold a on the child's must argues that the for this action. William parent's ability pay. to ability and the improperly pay ordered him to (1985), Ind.App., Giselbach v. Giselbach attorney the modifica Maureen's fees for Here, no evidence on the 481 N.E.2d 131. specifi because Maureen did not tion action ability daughter's aptitude or on William's cally request fees in her How hearing. pay presented at the to ever, response objection in her to William's presented on this issue was only evidence spe petition, Maureen her modification to voluntarily paid that William had required to requested William be cifically expenses and that he intended college the Thus, put pay attorney fees. William college pay for his children's education to request intended to on notice that Maureen ability depending on their academic attorney fees at is insufficient ability pay. to This evidence posture We are aware requiring William to: an order from a modifi- is somewhat different college expenses. case pay the Id. for one reason petition that is denied cation Likewise, in the court erred order Here, addition to a deci- in or the other. tax of the after "40% merits, held that we have sion on the any per for received from benefit in been entertained petition should not have receipt to 10 of its formance within er- procedural place the first because Support Rule 3 support." Indiana wife However, preclude the this does not rors. provides as follows: attorney fees. award from the evidence "If the court concludes per case that the amount 31-1-11.5-16 particular in a Indiana Code party to "order mits the trial court through application of the award reached cost to the for the amount unjust, a reasonable guidelines would be finding articulating defending maintaining or party of shall enter a written other this is an his brief to this cedes in the court's order whether It is not clear from Appellant's support." "general child for order for of the children or the amount is for Br. 22. con- However, Maureen's support. requiring William to et under proceeding [81-1-11.5-1 attorney is affirmed. court has broad seq.]" The trial discretion fees, not attorney and we will awarding RUCKER, J., a clear abuse concurs. absent such an award disturb Marriage Gray In re of that discretion. MILLER, J., in result with concurs There is 422 N.E.2d 696. Ind.App., opinion. per that the in the statute requirement no MILLER, concurring in result. Judge, prevail in the attorney fees son awarded Farthing Farthing action. See majority separately I because write 941; Farley Ind.App. result, but for reaches the correct Ind.App. Farley had the wrong The trial court reasons. N.E.2d 375. granted by 81-1-11.5- authority Ind.Code Maureen's Petition for Mod 17 to entertain argument on this issue sole William's changing con on substantial ification based have been should not attorney fees original specifically not ditions which rendered they were awarded because 19(A) is incon petition. He Local Rule in the modification unreasonable. other the statute. If it were sistent with discretion, alleged abuse of argues no other ourselves, wise, "Why determining the must ask any. we nor do we find rule to ask in her for the award, must amount of the apparent. The conflicts are be waived?" such as the resources consider factors peti require a verified The statute did condition, parties, their economic did. The statute did not tion-the gainful engage ability parties local rule a time limitation-the income, provide adequate and to earn employment except in an extreme prohibited party, on the rea- factors as bear and such other emergency, exercising his or v. Selke sonableness of award. Selke at least a after a rights modify (1991), Ind.App., N.E.2d 724. changed prior The standard was order.1 of Wil- had before it evidence making the changed circumstances from $96,000 for liam's annual income about original unreasonable to terms of the order income of compared to Maureen's an "extreme requirement of the rule's attorney a about week. $140 emergency." charge modi- total for the testified that the $2,248 (11.35 hours fication would be x mistake of not majority makes the hearing). for plus $113 $100/hour appellate rule of following an established evidence, the court deter- on this Based i.e., rulings by made procedure; find no abuse reasonable. We mined $900 presumptively are considered of discretion. appeal and it is the burden valid on legal in party appealing to establish requiring order summary, the court's Ind., v. validity. Moore State college ex- daughter's William to 778. N.E.2d requiring Wil- penses well as its as many times that all held "It has been pay part of his future liam to bonuses indulged on are presumptions part That of the order reasonable support is reversed. changed (1) showing Upon circum- a and Modification Ind.Code 31-1-11.5-17. continuing as to and so substantial stances and maintenance, termination support unreasonable; dispositions.-(a) an or- or property Provisions of make the terms respect showing order for Upon to child or an that: der with 9(c) (A) ordered under section ... an party maintenance been ordered to A has chapter may Such by be modified or revoked. this differs more amount in child only upon a show- (20%) shall be made modification twenty percent the amount than changed and circumstances so substantial by applying the child be ordered that would continuing unreasonable. as to make the terms guidelines; and 289-1987, section 1.] [P.L. (B) be modified or to The order least twelve months revoked was issued by P.L. 155-1990 to was modified This statute requesting before the read as follows: only: was filed. shall be made Such modification appeal in rulings favor of the Judg- Maureen received more than half of the ments of the trial court ... a court of marital assets, including family home appeals presume will not anything in fa- Carmel, in and a maintenance payment of appellant vor of alleged to sustain his per month for twenty-four months. errors." R. 3. agreed per to on weekly ($428 week) basis per Reilly 29, Robertson 266 Ind. assumed 171, numerous obligations N.E.2d other citing First National the benefit of their They agreed children. Bank Penn-Harris-Madison School joint custody Corp. as the custo- Ind. parent. dial They agreed that before 18-19. any custodial or dispute visitation would be Here, the trial jurisdic- court exercised court, submitted they to a first would sub- right modify granted based on a by mit the dispute to mediation. Unfortunate- statute to party either under certain condi- ly, provision did not extend to the despite tions. He did so the local by support agreement. entering an order that the local rule was (without giving reason). waived The ex- dispute before us change involves a jurisdiction ercise of his presumptively income, in William's change anticipated correct. The majority ignores the burden parties when they negotiated the placed upon Appellant William to show that agreement. settlement Maureen and Wil- it was incorrect. William satisfy cannot liam knew that William usually had an by failing burden to address the issue salary annual in early April review of each in his brief or relying on Maureen's failure year. R. previously 77. He received appellee's raise it in her brief. annual salary increases and bonuses. At overcome presumption validity, Wil- the time of the decree, dissolution 1) liam had to show that: the rule was valid amount salary (for of his 1990) increase statute; and not 2) inconsistent with a (earned 1990) in paid but the trial court abused its discretion waiv- was unknown. R. agreed 79. William ing the rule. William failed meet his notify Maureen of his salary new and bo- (1), therefore, burden as to item there was nus award when he received them. R. 7. no need question to reach the of abuse of The trial court refused prospec- to either discretion. In the cogent absence of argu- tively 19(A) waive Local Rule or to enter ment that overcomes the presumption fa- anything "in the dealing Decree ... with a voring court, ruling of the trial it is our support." future determination of R. 70. duty to affirm ruling. that 16, April On fourteen the question This the leaves of whether the entered, dissolution decree was in accord- supported evidence judge's changes. the ance with the decree William notified Mau- By way background, of story this is the salary reen that his had been increased to the end of a year marriage, nineteen a $79,500 per year and he had received a marriage produced daughters. that three $17,221.11 bonus. William earned a total separation, After a Maureen and William $96,722.11 gross income of in com- determined that marriage was over. pared $85,000 for 1989. They lawyers struggled and their to create later, About two months Maureen filed a property support, settlement and custo- support for modification of the dy, agreements and visitation that would fair agreement. Maureen asked the trial to them and would consider the best court support ($51 payments to increase the They interests of their children. $17 almost week)-from court, per per per daugh- succeeded. As noted week $141 the trial the ($574 per per daughter ter to $158 week "agreement which has been read into the fair, week), today equitable, per record is and in the an increase of about Mau- 12%. best interests of the reen support children." R. 84. based this level of on Wil- This "would very have been a difficult case support liam's new annual income and the for the Court to decide." Support R. 85. levels of the Indiana Child Guide- changed cireum- examples of in total Traditional Annually, the difference lines. educational ex included have stances support is $2652.00 (1986), Ind., 495 v. Martin penses, Martin court the trial majority, by the As stated 523; injury bankruptcy, and Kruse N.E.2d argument and heard Rule 19 Local waived (1984), Ind.App., N.E.2d Kruse re- The trial court Maureen's on denied, and a trans. denied reh'g pay- weekly support the increase fused to (1984), Ind. change custody, Rice v. Rice sponte However, trial court sua ment. - considering "In 1228. App., 460 N.E.2d of their oldest 95% ordered William Sup guidelines Child role [Indiana expenses and book daughter's tuition that opinion we are of port ... Rules] ordered William then The court IUPUI. alone, guidelines, standing of such the use "support," Maureen as 40%

pay to statutory com comply does after tax amount net futwre changed showing of makes a which mand Finally, the court or- might receive. he modifying child circumstances Maureen's dered mandatory." absolutely Stierwalt orders - attorney fees. (1988); Ind.App., N.E.2d Dyer not be guidelines ... "These 1214. Having shown above I address jurisdiction, correctly assumed showing a substantial absent a used v. Vore the trial in circumstances." Vore change of whether remaining issues aff'd, n. Vore 1) finding that Maureen by: erred (1991), Ind., so v. Vore change in circumstances Stier- demonstrated some make the it clear continuing as to and make walt Vore substantial income, change in which unreasonable; thing more than support order terms of child amount result in a different would pay part of 2) ordering William the Indiana payments based on attorney fees. Maureen's Rules, change required to Support Child "there have found that support order. changes in continuing substantial been judge's add that might I former order of making the circumstances applied to future bonuses-not support." as to child unreasonable clearly There weekly support payments. Mau increased trial court then R. 30. The in circum- change of a no evidence was by giving payments reen's future months) on the bo- (after only two stances of Wil (40%) the net amount forty no more about judge knew nus issue. my opinion, future bonuses.2 liam's the time of he did at than bonuses future failed to because error to me that appears It original decree. substantial any evidence of present hearing using a modification judge changes in circumstances. continuing omission thought was an he to correct what peti supporting only evidence original decree. in the income had gross that William's tion was majority's conclusion due increased, twenty percent, agree I by less than do its discretion anticipated at court abused parties the trial that both to a bonus expenses college ordering This evidence agreement. of their 'the time raised in was not The issue sponte. current order was sua that the only established it petition nor was guide with conformance not in exact Therefore, this is argued at the lines. 2. The ture benefit received April. support. lished Indiana only." ance within (5)(C) bonuses. This order trial court This is in accordance "Father shall This bonus 10 case law. The order shall of its any bonus for clearly "A operate states: 40% of the usually petition to receipt affects prospectively received well estab- perform- modify after tax only wife as fu- Pickett v. date tion of 319. See Ind.App., Ind.App., riage N.E.2d 755. after the order Wiley also Smith Pickett A 504; N.E.2d filing of the N.E.2d (1983),Ind.App., N.E.2d operates payments (1984), Ind.App., 470 N.E.2d Andrews 219; Kruse v. Mobley only prospectively ...." trans. effective v. make Andrews (1990), Ind.App., v. Kruse denied. a modifica In re Mar as of (1988), merely question TR. 15 conform- not a pleadings only to the evidence. The the court was that William

evidence before expenses voluntarily paying these so, continue to do con-

that he intended to daughters' academic abili-

sistent with capacity pay.

ty and authority Lepper to the addition Ind.,

Lepper cited majority, found that it this court has sponte

is error for a trial court to raise sua support. issues of child Gielsdorf-Aliah Ind.App.,

Aliah parents agree "Where being

needs of their children are met under order, existing peti neither is an modification,

tioning the court for required

is not to initiate modifications

..." Id. increase in Maureen asked an

weekly support payments. She did required

not ask that be

colleges expenses, he had probably because Therefore, agree

voluntarily paid them. I in or-

that the court abused its discretion

dering payment college expenses. agree majority's

I decision with

respect payment attorney fees. Since jurisdiction

the court had to hear Mau- it its discre- petition,

reen's abuse legal finding of Maureen's

fees was a reasonable amount should apportioned to William. BROWN, Ann L.

In re MARRIAGE Of

Appellant-Petitioner, Brown, Appellee-Respondent.

Mike E.

No. 52A05-9201-CV-18. Indiana, Appeals

Fifth District.

Aug.

Case Details

Case Name: Cavazzi v. Cavazzi

Court Name: Indiana Court of Appeals

Date Published: Aug 19, 1992

Citation: 597 N.E.2d 1289

Docket Number: 49A05-9104-CV-123

Court Abbreviation: Ind. Ct. App.