*1 (Gonser) Judy Marriage of In re the
SCHROCK, Appellant-
Petitioner, GONSER, Appellee- A.
Respondent. Indiana. Appeals of
Nov. 25,
Rehearing Denied Jan. Auburn, Appellant.
Hugh Taylor, N. Stout, Wheat, Angola, Wheat & Latriealle Schultess, LaGrange, Appellee. LeRoy K. OPINION HOFFMAN, Judge. (Gonser)
Appellant-petitioner judgment in court's appeals the trial Schrock appellee-respondent favor appeal are The facts relevant Gonser. recited below. granted a dissolution parties were
The August 1980. marriage in per week was ordered support of the directly Judy for the proceed- No other minor children. ties' five a verified filed ings transpired cause June petition for a rule to show on the A was that he February 1994. Williamtestified support payments, unilaterally reduced children were that certain as he determined that he did not stated emancipated. William reducing his modifying or seek a court court entered May the trial finding law conclusionsof findings of fact and equity prevented enforcement not held in was support order. William not order a contempt, the court did arrearage. A written letter judgment for the a motion treated as by Judy to the court was reconsider, hearing was held. *2 hearing. judgment No was entered after the remand, is reversed and remanded. On the appeal ensued. sup This trial court is instructed to fix the child port arrearage in accordance with the evi restated, Judy for As raises one issue dence adduced at the Febru failing the trial court erred in view: whether ary 1994. judgment fixing an to enter a arrearage amount. Reversed and remanded. parent pay to When a is ordered GARRARD, J., concurs.
specified support for more sum undivided child, parent pay than one the must BAKER, J., opinion. dissents with support payments amount until the are modi BAKER, Judge, dissenting. by or all of the children fied emancipated or reach the of 21 itself, The law is not an end in nor does it provide preeminently ends. It is a means Kirchoff Kirchoff N.E.2d 596. The Court noted: right. to serve what we think is "Although emancipa- to modificationdue Brennan, -Justice William J. Jr. tion can be effective as of the date of theme, respectfully Pursuant to this dis- ..., emancipation if one or more uneman- sent. cipated by children are also covered the notes, majority correctly As the the order, obligated support parent's duty the support nal required order support remaining the minor children pay Judy support week for the according original sup- to the terms of the parties' the five children. Because this order continues, port emancipa- order even after gross, required was in William was children, tion or of one more the that amount until all of the children were parent's duty support the the minor emancipated, sought or until he a modifica- by children is modified the trial court.... original tion of the order from the court. Therefore, long as as there remains one Ind.App., 619 Kirchoff Kirchoff child, unemancipated parent minor the is 596. This court has required support payments to make circumstances, some under which manner, amount, and at the times an order can be modified without a original support the order.... If (1) parent court such as when: parent desires a reduction of the undivid- non-conformingpayments makes to the cus- ed order as children become (2) parent, todial parties agree the to and emancipated, parent the must the carry out an payment alternative method of trial order." substantially complies (Citations omitted.). (8) obligated the or the Further, parent if a custodial parent home, takes the children into his as- agrees forego support, estoppel an custody them, provides sumes them preclude parent laches not defense would the necessities for such an extended asserting past a claim for due child permanent change custody of time that a support. Marriage effect occurred. In re 336. An Baker is unenforceable because the Here, Judge Petersen found that parent right away has no to contract tacitly agreed ties had to a modification of child's benefits. Id. order when each rely the trial court and William child left the emancipa- home his or her entirely Judy's complain failure to Additionally, tion. Record at based sup about the unilateral reduction in child equity, Judge Petersen port amounts to find that she has "unclean determined that no arrearage equitable hands." Judy's Given doctrines prolonged acqui- was owed because of estoppel of laches and not do control child escence to the reduced and her failure to determinations, arrearage the cause equitable princi Having determined at 55. R. support decree. original child and child applicable to divorcee ples are still that no Judge Petersen agree with Because I I believe that one proceedings, owed, com- arrearage I am is particular applicable table doctrine pelled to dissent. action, specifically, the doctrine present *3 England, the ecclesiastical Historically in estoppel springs estoppel. The doctrine of of jurisdiction grant a had the sole courts designed equitable principles, and it is from 105 Evans v. Evans divorcee. where, justice aid in the administration 24, in 209-10, aid, injustice might result. Levin 204, N.E. without granted by Indiana, originally 601, were (1994), Ind., divorcees 645 N.E.2d v. Levin enactments, prescribed the which cireum- is not limited to Use of this doctrine legislature, represen divorcee. The involving causes for an actual or false various stances ques- difficulty determining existing material had tation or concealment of Rather, Thus, equitable estoppel is a adoption to the fact. alimony. prior tions of through remedy party if his available one in divorce Indiana Constitution belonging to knowingly or in regarded as conduct misleads proceedings were course of and act party to believe duces courts, authority had to de- equity who knowledge good in faith without his conduct as well as decisions termine child doctrine, a facts. Id. Under parties. rights between all settle asserting rights precluded from party is result, were consid- a while divorces Id. As a might exist because of otherwise actions," not included were ered "civil party. Eg change position an innocent in the Bill of cases" as found the term "civil (1991), Ind. v. Medical Protective Co. nats prac- Id. This Rights of our Constitution. 488, 441. App., 581 N.E.2d last several dec- changed over the tice has ades, however, pri- divorcee law is now case, the record reveals In the instant per sup- in child paid week William $137.00 marily statutory. when the trial court port from eus- change, divorcee and child Despite this decree, to June entered its many equitable tody still contain statutes date, graduated oldest child when his although the stat attributes. eighteen years high and turned school power to a grants court the ute old, support payment reduced his William § 31-1- IND.CODE child Thereafter, as each week. 11.5-17, a at such modification the date which high school and reached graduated from court's sound within the trial is effective is years, further eighteen William (1995), Ind., Hazuga Hazuga v. discretion. 1984, he his duced also has 394. The trial court 648 N.E.2d $87.50, in 1986 to payment to reduced the to determine significant discretion $27.50, $55.00, which he was and in 1991 to granted, al support to be amount of child hearing. Fur- at the time of the paying still legislature indicated certain though the ther, child resided with during the time one making this deter considered factors be immediately grandparents, her William - 31-1-11.5-12; § mination. - his transferred v. Coster Coster result, time As a at the grandparents. signif Similarly,the trial court has past support, Wil- instituted this action the amount $81,241.00 icant discretion determine in child over paid liam had party a At no to be awarded after years and 21 weeks. period of modification, Howard v. Reeck seeks period did during this William time (1982), Ind.App., support obli- modifying his child prescribes the cireum- though the statute Judy seek an order gation, nor did may a modification support obligation under which such as it was stances Thus, § 81-1-11.5-17. sought. action, I.C. be where- current nally until the entered $51,591.50. It requested must be considered when table she facts, obligation to deter- statutory provisions re as well as his these applying the various who credibility the witnesses mine the support modification. garding child testified, Judge pay support grandparents Petersen found that the when one them; agreed rather, to a modification of the with resided order. R. at 56. To private ordering, adjust- William made the ignore Judy's would extended hold otherwise ment on his own. without need of acquiescence which induced supervision, William continued to compliance the child to believe he was support directly to his former wife for and allow to benefit Thus, Judy's request over eleven from her failure to inform William he was not the court to intervene at this time and en- compliance or to seek an order force a child order which she and comply privately modified must be denied. Equity would not allow such I would affirm the decision of the trial *4 a result. court. Moreover, Judge Petersen's decision is longstanding policy Indiana consistent with practice, encourages private
and or
dering among parties than rather continuous example,
assistance from the courts. encourage parties
our divorcee statutes differences, counseling to work out their cannot, they
and the event that to come to
private agreements regarding spousal main disposition prop
tenance and the of marital Indiana, Appellant-Defendant, STATE of 31-1-11.5-9, erty. §§ 31-1- 11.5-10; (1994), Voigt Voigt Ind.App., v. (parties 628-29 are free make CARTER, Individually Kayla Debbie continuing arrangements financial Woods, by conciliation). her next friend spirit and natural amicability When mother, Carter, Appellees-Plain Debbie agreements regarding come to such tiffs. property, the division of marital our courts accept division agreement
unless determine the was the unfairness, product of some unreasonable Appeals of Indiana. terms, inequity ness or manifest in its or that fraud, procured through misrepresen it was Dec. tation, coercion duress or lack of full disclo sure. Atkins v. Atkins 760, 762, trans. denied. parties' agree
we have not interfered with
ments to follow alternative methods of child
support payment, provided agreements
substantially comply
original support Payson Payson 1129.1 pursuant William and acted coming scheme to an regarding amount judicial
owed without the need for interfer- unnecessary
ence. For it was
Judy to
seek a court order
recognize
private
agreements
this court has held
and enforced
to mod-
agreements
ify
in the context of in
orders,
orders unenforceable. such as the order in the instant
App.,
this court
Baker,
case.