Griswold v. Savage

569 N.E.2d 970, 1991 Ind. App. LEXIS 561, 1991 WL 53952
Indiana Court of Appeals·Decided April 10, 1991·No. 82A01-9012-CV-00509·Published·Cited by 4 cases

Opinions

ROBERTSON, Judge.

Milton R. Griswold (Griswold) appeals from a portion of the trial court's judgment in favor of Janet Savage (Savage), his former wife, with regard to modification of child support for their son. We affirm.

After Griswold had fallen behind numerous times in his child support payments, Griswold's mother died and left him as her only heir. Savage subsequently petitioned the trial court for modification of the $30.00 per week child support order which had remained effective for thirteen years, and for a requirement that Griswold place security for the payment of future child support and college expenses with a financial institution from a distribution from his mother's estate. Griswold paid his child support arrearages from the estate funds but asked the trial court not to require him to deposit a lump sum for future support, college expenses, and medical expenses in an account. On July 5, 1990, the trial court entered its judgment, in relevant part:

IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the Husband's weekly child support obligation shall be in the sum of Seventy-five Dollars ($75) per week effective February 9, 1990.
* # * * * #
IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the Husband shall remit the sum of Thirty-seven Thousand Five Hundred Dollars ($87,500) which sum shall be placed in an interest-bearing type of escrow /security savings accounts in accordance with I.C. 81-1-11.5. Said funds on deposit shall represent weekly child support in the sum of Seventy-five Dollars ($75) per week for a period of five (5) years, together with one-half (%) of college tuition in the sum of Four Thousand Five Hundred Dollars ($4,500) for a period of four (4) years.

The parties subsequently requested that the trial court clarify its order, so the court issued the following on September 7, 1990;

IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED, by the court that any funds withdrawn from the account heretofore established for payment of college tuition, room, board, books and fees shall be made payable to the institution.
[972]*972IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that any funds withdrawn for reimbursement of unpaid medical bills, Wife shall notify counsel for Husband ten (10) days in advance of the withdrawal with copies of documents supporting said withdrawal.
IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the Husband, or his counsel, shall have the right to examine the records of said account, but not to make withdrawals therefrom. The Wife shall execute any and all documents necessary to permit said inspection that may be required by the Bank.
IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the Order made herein is meant to be full and final obligation of the Husband's support obligations, in-eluding direct support, educational expenses and medical expenses.
IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that in the event the parties' minor child does not go to college, or becomes emancipated prior to age 21, and as a result not all of the funds are utilized, all remaining sums attributable to the child not going to college or becoming emancipated prior to age 21, shall be returned to the Husband, less any acerued interest which shall become the Wife's.
IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that interest generated by the funds on deposit shall be applied as follows:
(A) First, to State and Federal income taxes on the interest accrued on the funds;
(B) Second, to uninsured medical, hospital, dental and pharmaceutical expenses; and,
(C) Third, annual child support increases.
IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the Wife shall be permitted to withdraw any balance of annual interest less State and Federal income taxes, uninsured medical, hospital, dental and pharmaceutical expenses, and annual child support increases on the anniversary date of the deposit of said monies in said savings accounts.

DECISION

We review a trial court's decision to modify child support only for an abuse of discretion. Only when the decision is clearly against the logic and effect of facts and circumstances before the trial court will it be reversed. Gerber v. Gerber (1985), Ind.App., 476 N.E.2d 531.

We note that when the child support of seventy-five dollars per week is multiplied by fifty-two weeks per year and by five years, and then this amount is added to the $4,500.00 per year for four years of college expenses, the total equals $87,-500.00, the amount the trial court required Griswold to deposit in the account. We take note of this because it shows the trial court simply added the required payments together to calculate a lump sum for deposit and did not discount the payments over time to establish a net present value sum. The trial court might have chosen to operate this way due to the uncertainty of the interest rate the account might receive over the next five years or because the income from the account was to be used for income taxes on the interest, for subsequent increases in child support, and for uninsured medical expenses. The way the trial court structured the deposit, the child support and college expense monies will almost assuredly be in the account when the obligations acerue even if the account bears little or no interest.

Indiana Code Section 31-1-11.5-14 unequivocally authorizes trial courts to order that child support be paid into a trust. Stutz v. Stutz (1990), Ind., 556 N.E.2d 1346, 1352. Griswold does not contend the actions of the trial court were improper except where they allowed Savage to withdraw excess income from the account. Griswold claims the support order in this case is a self-adjusting support order sim[973]*973ilar to the self-adjusting order proscribed in Hunter v. Hunter (1986), Ind.App., 498 N.E.2d 1278.

In Hunter, the court found four defects in a child support order which was to escalate based solely on the income of the noncustodial parent. First, the order did not give due regard to the actual needs of the child. Second, the order did not consider the non-custodial parent's financial means in relation to the other three factors required under IND.CODE 831-1-11.5-12(a): the financial resources of the custodial parent, the standard of living the child would have enjoyed had the marriage not been dissolved or had the separation not been ordered, and the physical or mental condition of the child and the child's educational needs. Third, the order produced an amount of support that was speculative and changing. Fourth, the order might have caused administrative or enforcement problems or encouraged animosity and additional litigation by the parties because they did not request or agree to the order fashioned by the trial court. We find none of these factors mandates reversal of this case.

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Griswold v. Savage, 569 N.E.2d 970, 1991 Ind. App. LEXIS 561, 1991 WL 53952 (Ind. Ct. App. 1991).

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