DeLong v. DeLong

315 N.E.2d 412, 161 Ind. App. 275, 1974 Ind. App. LEXIS 934
CourtIndiana Court of Appeals
DecidedAugust 15, 1974
Docket2-673A131
StatusPublished
Cited by25 cases

This text of 315 N.E.2d 412 (DeLong v. DeLong) 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
DeLong v. DeLong, 315 N.E.2d 412, 161 Ind. App. 275, 1974 Ind. App. LEXIS 934 (Ind. Ct. App. 1974).

Opinions

Sullivan, P.J.

This appeal is occasioned by a series of proceedings in the Superior Court of Hamilton County.

In September 1969, appellee (Husband) was granted an absolute divorce from appellant (Wife). The terms of the divorce decree awarded custody of the three minor children— Ellen (born 9-22-52), Bonney (born 8-27-54), and Valerie (born 2-28-60) — to the Wife, and Husband was ordered to pay a total of $400.00 per month in child support.1 The decree thus contemplated annual support payments totalling $4800.00. Within two weeks of the decree, Husband and Wife, submitted, and there was granted, a Joint Petition to Modify whereby custody of the children was given to Husband and the support order was dissolved.

In November of 1970, Wife, by Petition to Modify the Decree, sought to again obtain custody of the children. The court, on November 5, 1970, granted custody of the children to Wife, and ordered Husband to pay monthly support of $266.67 for Bonney and Valerie and annual education expenses and support of $3519.00 for Ellen. Therefore, Husband’s total annual obligation was $6719.04 pursuant to this order.

[277]*277In July, 1972, Husband filed a Petition to Modify the Decree seeking a reduction in support for Bonney who was commencing her college education at Earlham College in Richmond, Indiana. In August of 1972, Wife counter-filed a Petition for Contempt Citation and Modification of the Decree alleging failure by Husband to make all support payments and education expense payments for Ellen, and seeking incremental adjustments in support for general cost of living expenses and educational expenses for Bonney and Ellen. Additionally, Wife sought a “one-time” payment of $1000.00 in order that Ellen might purchase an automobile for transportation to school. In sum, Wife sought to maintain monthly support of $183.84 for Valerie, and to obtain an annual college expense and support award of $1831.00 for Bonney2 and $3050.00 for Ellen.3 Thus, the total annual obligation contemplated was $6461.08.

At trial a number of facts come to light which were susceptible to formulation of the court’s ruling:

(1) Ellen had transferred from Hillsdale College to I.U. P.U.I. where the tuition expense was approximately $365.00 per semester.
(2) Ellen had secured educational loans (National Defense Student Loans) in the sum of $1200.00 and Bonney secured a similar loan in the amount of $400.00 Payment on these loans are deferred until nine (9) months following college graduation or other cessation of academic studies.
(3) Both Ellen and Bonney were excellent students, and, through academic industry, had obtained superior grades.
(4) Wife, with similar industry, was nearing completion [278]*278of her undergraduate studies at I.U.P.U.I. and ready to assume an occupation in life. During this period, Wife had engaged in various employments, part and full time, ill order to meet the total family needs.
(5) Both Ellen and Bonney regularly worked during their summer vacations in order to defray some of their expenses.
(6) Husband’s gross income had increased from over $22,000.00 in 1969 to over $25,000.00 in 1972.
(7) Husband, in 1970, had remarried, and thereby, acquired a “new” and existing family of five children. Further, the Husband’s second wife received a total of $20.00 per week support for all five of her children; and, at the time of trial, appellee and his second wife were expecting a child of their own.

The court’s judgment here appealed was entered January 26, 1973. It granted Husband’s Petition to Modify and denied Wife’s. Husband was required to pay $133.33 per month for the total support of Valerie; and the tuition of Bonney and Ellen, not to exceed $365.00 per semester per child; and books and supplies for Bonney and Ellen, not to exceed $65.00 per semester per child; and a food allowance of $245.00 per semester per child. Graphically, and for purposes of clarification, the court’s order may be translated into annual maximum payments as follows:

(a) Valerie — $133.33 x 12 months $1,599.96
(b) Bonney
$730.00 Tuition at Earlham
130.00 Books and Supplies
490.00 Food Allowance 1,350.00
(c) Ellen
$730.00 Tuition at IUPUI
130.00 Books and Supplies
490.00 Food Allowance 1,350.00
Total Annual Obligation $4,299.96
The court also ordered:
“. . . that in the event any of the costs for tuition, costs for school books and related supplies, and/or board or food costs are covered, discharged, paid, or are non-existent because of the obtaining of any scholarship or scholarships for or by either Ellen DeLong or Bonney DeLong, then [279]*279Plaintiff is not required to pay for any expense or item otherwise ordered herein which is covered, discharged, paid, or is non-existent because of such scholarship or scholarships; . . .”

Further, the court ordered that Husband’s obligation to provide support and college expenses terminate automatically upon each child reaching age twenty-one (21) ; that such obligation for educational expenses was effective only two semesters of each academic school year, and that Husband pay $100.00 to Wife’s attorney for attorney’s fees.

Wife timely filed her Motion to Correct Error which was overruled on March 14, 1973. On March 26, 1973, Wife filed a Petition for Funds with Which to Prosecute an Appeal and For Funds and Waivers for Said Purpose to Allow the Prosecuting of Said Appeal as an Indigent or Poor Person. This self-styled petition sought to require Husband to pay the expense — including attorney’s fees, record and transcript costs, clerk’s costs, filing fees, and preparation of briefs — of Wife’s appeal.

The court heard evidence with respect to the parties’ relative financial ability to pay appeal expenses, declared Wife to be financially unable to provide appeal costs, but denied her petition. Wife then filed a Motion to Correct Errors directed to that ruling which the trial court overruled.

Both causes have been consolidated in this one appeal.

The contentions presented are as follows:

(1) That the court’s ruling granting Husband’s modification petition and denying Wife’s petition was excessive and unnecessary, contrary to law, and contrary to the evidence.
(2) That the court’s ruling on Wife’s Petition for Contempt was contrary to law and contrary to the evidence.
(3) That the court’s order on the petition for modification is vague, uncertain, and incapable of performance.
(4) That the award of $100.00 for attorney’s fees is contrary to the evidence, and constitutes an abuse of discretion.
(5) That the trial court erred in denying her Petition for Funds With Which to Appeal.

[280]*280I

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Bluebook (online)
315 N.E.2d 412, 161 Ind. App. 275, 1974 Ind. App. LEXIS 934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delong-v-delong-indctapp-1974.