Kirchoff v. Kirchoff

619 N.E.2d 592, 1993 Ind. App. LEXIS 1019, 1993 WL 321811
CourtIndiana Court of Appeals
DecidedAugust 26, 1993
Docket63A01-9302-CV-48
StatusPublished
Cited by35 cases

This text of 619 N.E.2d 592 (Kirchoff v. Kirchoff) 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
Kirchoff v. Kirchoff, 619 N.E.2d 592, 1993 Ind. App. LEXIS 1019, 1993 WL 321811 (Ind. Ct. App. 1993).

Opinion

BAKER, Judge.

Appellant-petitioner Elaine Kirchoff appeals the trial court's order denying her petition for contempt and granting appel-lee-respondent Bruce Kirchoff's petition for modification of child support. Elaine raises the following two issues for our review:

I. Whether the trial court abused its discretion when it granted Bruce's petition for modification of child support.
II. Whether the trial court abused its discretion when it failed to find Bruce in contempt of court for his unilateral reduction of child support payments for the parties' minor children.

We affirm and remand.

FACTS

The facts most favorable to the trial court's judgment are that on May 28, 1991, the Kirchoff's marriage was dissolved and the parties entered into an agreement of property settlement and child custody. Under this agreement, which was approved by the trial court and incorporated in the decree of dissolution and approved by Elaine's attorney 1 Elaine was given custody of the parties' children 2 while Bruce was given reasonable visitation. Bruce agreed to pay Elaine $500 per week as child support beginning on May 24, 1991, and continuing until each child graduated from college.

Since the marriage dissolution the following changes in circumstances have taken place. On December 7, 1991, Seott Kir-choff, the parties' eldest child and a college student, became twenty-one years old. Scott has not lived with either parent for approximately one year. On April 6, 1992, Julie Kirchoff, the parties' eighteen-year-old daughter, left Elaine's home to live with Bruce until she began college out of state, at which time Bruce assumed total financial responsibility for Julie. In August 1992, Elaine began full-time employment at a compensation rate of $220 per week. The original support agreement was based on Elaine's earning $175 per week during holiday seasons only. Bruce's *595 income from his law practice declined to $1,500 per week from the $2,000 per week upon which the agreement was based. Jason Kirchoff, the parties' fourteen-year-old son, has continued to live with Elaine since the divorce.

On May 14, 1992, approximately one year after the dissolution, Bruce unilaterally and without petitioning the court decreased payments to Elaine for the support of the parties three children from $500 per week to $884 per week.

Thereafter, Elaine petitioned to have Bruce found in contempt of the court's support order. Bruce then filed a petition for modification of the support order. After conducting a hearing on Elaine's petition for contempt and Bruce's petition for modification, the court denied the contempt petition and granted the modification petition.

The trial court denied Elaine's petition for contempt, based on IND.CODE 31-1-11.5-12(d), which provides that the duty to support a child ceases upon the child's twenty-first birthday unless certain conditions exist which were not present here. However, the court ordered Bruce to pay back support of $799 finding Bruce's reduced weekly payments from May 14, 1992, through September 14, 1992, the date of modification, were $47 per week less than the support guidelines for two minor children. The trial court then granted Bruce's petition for modification of child support finding that Bruce showed a change in circumstances so substantial and continuing as to make the court's prior support order unreasonable.

DISCUSSION AND DECISION

I. Modification Order

We review a trial court's decision to modify a support order to determine only if the trial court abused its discretion in finding "changed circumstances so substantial and continuing as to make the terms unreasonable." IND.CODE 31-1-11.5-17(a)(1); Halum v. Halum (1986), Ind.App., 492 N.E.2d 30, 32-33. This statutory standard applies to all support and maintenance orders, regardless of the origin of its terms and even though the parties intend it as forever determinative. Id. at 83. Therefore, the fact that the support order was entered pursuant to a property settlement and child custody agreement and was to "continue on each child until graduation from college" did not deprive Bruce of the right to seek modification and is of no consequence to the question of whether the support order should be subsequently modified.

To determine whether the trial court abused its discretion in modifying a support order, this court will not assess the witnesses' credibility nor weigh the evidence, but will consider only the evidence most favorable to the judgment and the reasonable inferences flowing therefrom. Rice v. Rice (1984), Ind.App., 460 N.E.2d 1228, 1230. Under this standard, if there is substantial evidence to support the trial court's finding, its conclusion will not be disturbed, even though this court may have reached a different decision. Id.

The dissolution occurred on May 28, 1991. The court ordered Bruce to pay Elaine $500 per week "for the support of said children." Record at 62. Child support payments began on May 24, 1991, and were to continue "on each child until graduation from college." Record at 62. At the time of the agreement, Elaine had custody of each of the parties three children, who then ranged in age from thirteen to twenty.

Despite Elaine's contention that the $500 was in part maintenance, the settlement agreement and the court order clearly indicate that Bruce's weekly payments to Elaine were solely for child support. In addition, since none of the statutory conditions exist here, any maintenance payments to Elaine would directly contravene the statutory prohibition of court-ordered maintenance to a spouse. See IND.CODE 31-1-11.5-9(c) and IND.CODE 81-1~11.5-11(e).

In 1992, when petitioning the trial court for modification of the support order, Bruce presented evidence that since the agreement, Elaine was employed on a full- *596 time basis significantly increasing her seasonal income, while his income had significantly declined. On the basis of changes in relative financial resources of both parents alone, this court has found no abuse of discretion in a trial court's modification of a support order. Carlile v. Carlile (1975), 164 Ind.App. 615, 617, 618, 330 N.E.2d 349, 351.

The evidence revealed other substantial and continuing changed circumstances which buttress the trial court's decision to modify the support order. The record reveals that at the time of Bruce's petition, the oldest son, Seott Kirchoff, had turned twenty-one and had not lived with Elaine for almost one year. The middle child, Julie Kirchoff, had been living with Bruce, who had assumed total financial responsibility for her for almost five months. Bruce will continue total responsibility for Julie who plans to attend college and to reside with Bruce during vacation periods. Jason Kirchoff, the youngest child, is now the only child in Elaine's care and custody.

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Bluebook (online)
619 N.E.2d 592, 1993 Ind. App. LEXIS 1019, 1993 WL 321811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirchoff-v-kirchoff-indctapp-1993.