Connell v. Welty

725 N.E.2d 502, 2000 Ind. App. LEXIS 337, 2000 WL 307385
CourtIndiana Court of Appeals
DecidedMarch 27, 2000
Docket49A02-9906-CV-400
StatusPublished
Cited by23 cases

This text of 725 N.E.2d 502 (Connell v. Welty) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Connell v. Welty, 725 N.E.2d 502, 2000 Ind. App. LEXIS 337, 2000 WL 307385 (Ind. Ct. App. 2000).

Opinion

OPINION

BAKER, Judge

Appellant-respondent Eugene Connell appeals the trial court’s award of $34,618 in child award arrearage to appellee-peti-tioner Mary (Connell) Welty. Connell makes several specific arguments which we rephrase as follows: (1) the trial court erred in finding that Connell’s support obligation extended until December 5, 1991; (2) that the doctrine of laches or the statute of limitations bars the enforcement of child support obligations in this case; and (3) that the judgment of the trial court is not supported by sufficient evidence, with the result that the award is excessive. 1

FACTS

Connell and Welty were divorced on August 16, 1976, and Welty was awarded custody of their two daughters, M.L. and S.D., then ages four and five respectively. The trial court ordered Connell to pay $40 per week in child support for the two girls. On October 9, 1981, the court found that the father owed a child support arrearage of $6,162. Father agreed to a wage assignment. On March 12, 1982, the court *504 increased child support to $55 per week, and an assignment of wages was entered. The child support modification order provided for an undivided amount of support for both children.

Two separate accounts were opened at the Marion County Child Support office to receive support payments from Connell, and Welty learned of only one such account when she solicited information from that office for this cause of action. That account was opened to handle payments to the arrearage, and it had taken in $4,812 in payments. 2 A second account had received payments totaling $18,615. Welty, having since learned of the second account, now concedes that the trial court’s award should be reduced by $18,615.

S.D. last attended high school in January 1990 at age nineteen. She quit school prior to graduation and went to work part-time as a nurse’s aide, earning $80 per week. She still lived with Welty and was supported by Welty beyond her twenty-first birthday on December 5,1991.

M.L. gave birth to a baby on January 25, 1990 when she was eighteen years old. She dropped out of high school during her pregnancy and was supported by Welty until she married on December 31, 1990, at the age of nineteen.

Connell stopped paying child support on September 22, 1989 and quit his job, thus ending the wage assignment. On August 11, 1998, Welty filed the instant action to enforce child support.

A bench trial was held on February 1, 1999. On February 26, 1999 the court entered its judgment against Connell and in favor of Welty in the amount of $34,618. Connell filed a motion to correct errors which the trial court denied on April 26, 1999. Connell now appeals.

DISCUSSION AND DECISION

I. When Child Support Obligation Ended

Connell first contends that M.L. and S.D. were both emancipated prior to the date found by the court, which was December 5, 1991. Specifically, he contends that M.L. became emancipated at age eighteen, on October 1, 1989, because she had dropped out of high school. He also argues that S.D. was emancipated when she quit high school at age nineteen, in 1989, and began working as a part-time nurse’s aide.

We note initially that, in reviewing a trial court’s determination regarding the date of emancipation, we will neither reweigh the evidence nor reassess the credibility of witnesses, and we will not set aside the finding of the trial court unless it is clearly erroneous. Brancheau v. Weddle, 555 N.E.2d 1315, 1317 (Ind.Ct.App.1990). We will not reverse unless there is a total lack of supporting evidence or the evidence is undisputed and leads solely to a contrary conclusion. Id.

Furthermore, pursuant to I.C. § 31-16-6-6(a), the duty to support a child continues until the child becomes twenty-one years of age unless one of the following conditions occurs:

(1) The child is emancipated before becoming twenty-one (21) years of age....
(2) The child is incapacitated.
(3) The child:
(A) is at least eighteen (18) years of age;
(B) has not attended a secondary or postsecondary school for the prior four (4) months and is not enrolled in a secondary or postsecondary school; and
(C) is or is capable of supporting himself or herself through employment.

In order to find that a child is emancipated under I.C. § 31-16-6-6(a)(l), the court must find that the child has joined the armed services or married, or that the child is not under the care and *505 control of either parent or an individual or agency approved by the court. I.C. § 31-16 — 6—6(b). Furthermore, the party seeking to have a child declared emancipated prior to age twenty-one under the criteria of I.C. § 81 — 16—6—6(a)(3) bears the burden of proving the capacity of self-support. Marshall v. Marshall, 601 N.E.2d 9, 12 (Ind.Ct.App.1992) (discussing prior version of this statute, I.C. § 81 — 1—11.5—12(d)(3)). Finally, when a parent is obligated to pay a specified amount of undivided support for more than one child, that amount must be paid until either the support payments are modified or all of the children are emancipated. Kirchoff v. Kirchoff, 619 N.E.2d 592, 596 (Ind.Ct.App.1993). A parent desiring a reduction of the undivided support order as the children become emancipated must petition the court to modify its original order. Id.

In this case, because the child support order was undivided and Connell never petitioned to modify it, the order continued until both children were emancipated. The evidence reveals that M.L. was born on October 1, 1971. She left high school at age seventeen and bore a child on January 25, 1990. Record at 126. She lived with Welty at that time. R. at 126. She married when she was nineteen years old, on December 31, 1990. R. at 126. Thus, by statute she was emancipated on December 31, 1990. Connell contends that she was emancipated at age eighteen. However, he did not petition the court to declare her emancipated prior to her marrying.

S.D. left high school at age nineteen, in January, 1990. R. at 117. She worked part-time as a nurse’s aide, earning $80 per week. R. at 151-52. She continued to live at home and be supported by Welty until beyond her twenty-first birthday on December 5, 1991. R. at 120, 154. Connell does not carry his burden of demonstrating that S.D. was supporting herself through employment or was capable of doing so prior to her twenty-first birthday. Thus, I.C. § 31-16-6-6(a)(3) above cannot apply to her. Nor does I.C. § 31 — 16—6—6(a)(1) apply because the court did not find that S.D.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cynthia Worrell v. Brian Worrell (mem. dec.)
Indiana Court of Appeals, 2017
Norman Bernstein v. Patricia Banker
702 F.3d 964 (Seventh Circuit, 2012)
Bernstein v. Bankert
733 F.3d 190 (Seventh Circuit, 2012)
Annette (Oliver) Hirsch v. Roger Lee Oliver
970 N.E.2d 651 (Indiana Supreme Court, 2012)
Hirsch v. Oliver
944 N.E.2d 956 (Indiana Court of Appeals, 2011)
Skolak v. Skolak
895 N.E.2d 1241 (Indiana Court of Appeals, 2008)
Burns v. Johnson
877 N.E.2d 826 (Indiana Court of Appeals, 2007)
In Re Paternity of SJJ
877 N.E.2d 826 (Indiana Court of Appeals, 2007)
Whited v. Whited
859 N.E.2d 657 (Indiana Supreme Court, 2007)
Gray v. Schachel
846 N.E.2d 752 (Indiana Court of Appeals, 2006)
In Re Paternity of PWJ
846 N.E.2d 752 (Indiana Court of Appeals, 2006)
Trent v. Trent
829 N.E.2d 81 (Indiana Court of Appeals, 2005)
Ratliff v. Ratliff
804 N.E.2d 237 (Indiana Court of Appeals, 2004)
Garcia v. Garcia
789 N.E.2d 993 (Indiana Court of Appeals, 2003)
Dore v. Dore
782 N.E.2d 1015 (Indiana Court of Appeals, 2003)
Thurman v. Thurman
777 N.E.2d 41 (Indiana Court of Appeals, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
725 N.E.2d 502, 2000 Ind. App. LEXIS 337, 2000 WL 307385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connell-v-welty-indctapp-2000.