McGuire v. McGuire

880 N.E.2d 297, 2008 Ind. App. LEXIS 126, 2008 WL 251958
CourtIndiana Court of Appeals
DecidedJanuary 31, 2008
DocketNo. 49A02-0705-CV-421
StatusPublished
Cited by8 cases

This text of 880 N.E.2d 297 (McGuire v. McGuire) 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
McGuire v. McGuire, 880 N.E.2d 297, 2008 Ind. App. LEXIS 126, 2008 WL 251958 (Ind. Ct. App. 2008).

Opinion

[299]*299OPINION

MAY, Judge.

Cathy McGuire (“Mother”) and Edith McGuire (“Daughter”) appeal the trial court’s judgment in their action for child support against Maxin McGuire (“Father”). They raise five issues, which we consolidate and restate as:

1. Whether the court erred in calculating child support due;
2. Whether the court erred in ordering Father to pay $50 per week on the arrearage;
3. Whether the court abused its discretion in denying prejudgment interest; and
4. Whether the court abused its discretion in denying Mother’s request for attorney fees.

We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Mother and Father married in early 1978 and Mother gave birth to Daughter in December of that year. In 1981, Father was to begin reimbursing the welfare department $25 per week for assistance received. A February 3, 1986, divorce decree gave Mother custody of Daughter and ordered Father to pay $25 per week in child support. Daughter lived with Mother until 1990, when she lived a few months with Father and a few months with an aunt, Phyllis. She then returned to Mother’s care for three years.

Daughter began living with a maternal aunt and uncle, Rhonda and Kenneth Day, in September 1993. In December 1993 and January 1994, Daughter, Mother, and Father signed consents transferring Daughter’s custody to the Days. A court order on January 23, 1994, transferred custody of Daughter to the Days but was silent regarding child support. Daughter remained with the Days through December 1994, when she returned to Mother’s house. No court order ever modified custody from the Days back to Mother. Daughter was emancipated on December 26, 1996, which was her eighteenth birthday.

On December 18, 2006, Mother asked the court to calculate Father’s child support arrearage and to add Daughter as a party.1 The court made Daughter a party, then ordered, in pertinent part:

4. The child support obligation owed by [Father] accrued in this cause from February 3, 1986 to February 23, 1994 (the date custody was transferred from [Mother] to [the Days]) at the rate of $25.00 per week which equals a total gross child support obligation of $10,450.00 during that period (418 weeks x $25 per week).
5. [Mother] argues that child support should extend to and be paid to her through December 26, 1996, the date of [Daughter’s emancipation. However this Court declines to follow that argument for the following reasons:
a) The court order granting custody of [Daughter] to [the Days] (dated February 23, 1994) did not provide for child support and pursuant to Whited v. Whited, 844 N.E.2d 546 [ (2006) ] (a January 2007 Indiana Court of Appeals decision) a change of custody terminates the existing child support order paid to Petitioner despite the lack of an express order of the Court to do so.
“Still we conclude that Kenneth had no child support obligation during the 1993 through 1995 time-frame. Kenneth made his last child support payment on November 10, [300]*3001993, the day that his youngest son, Joshua, permanently moved back to Indiana .... once Joshua moved back to Indiana ... no child remained in Kathy’s care. Therefore, the change of custody exception terminated Kenneth’s support obligation in its entirety.” Whited v. Whited, 844 N.E.2d 546 [859 N.E.2d 657] (January 9, 2007).
b) to require [Father] to pay to [Mother] child support during a period of time that [Mother] did not have custody of [Daughter] but rather [Daughter] was in the care of [the Days] would serve as an unjust enrichment to [Mother].
6. A certified Marion County Child Support Account Record was admitted into evidence, on Petitioner’s motion, showing that Respondent made payments against this child support obligation in the total amount of $2,048.00 between November 20, 1986 and the present.
7. [Mother] argues that [Father] should not be given credit for [Father’s] payment made on November 20, 1986 in the amount of $425.00 and [Father’s] payment made on November 25, 1987 for the reason that [Mother] testified that she did not receive those payments. However this Court finds that [Mother’s] own exhibit (the Marion County Child Support Account Record) certifies that [Father] made such payments on said dates and thus should be given credit for the same. If [Mother] feels or believes that she has not received monies paid to the Clerk and due her, [Mother’s] claim is with the Marion County Clerk’s Child Support Division and not [Father].
8. As a result of the foregoing [Father] is in arrears in his child support obligation in the amount of $8,402.00 ($10,450.00 due minus $2,048.00 paid) as of the emancipation of [Daughter] on December 26,1996.
9. [Father] shall pay said arrears in full by paying $50.00 per week toward the arrears, through the Marion County Clerk’s Child Support Division, beginning the first Friday following entry of this order and every Friday thereafter until paid in full.
10. Pursuant to Ind.Code 34-51-4-8, prejudgment interest should not be awarded in this matter.
11. [Mother] argues for contribution toward her attorney fees by [Father]. However, as is properly stated by [Mother] in her own petition, pursuant to Trent v. Trent, 829 N.E.2d 81 (Ind.App.2005) [sic], [Mother] does not have a contempt of court remedy for [Father’s] failure to pay child support and, as a result, no statutory or case law authority exists to award attorney fees against [Father]. Additionally, [Mother] appears, at trial and in her petition, to be making an “equity” argument for the award of attorney fees against [Father]. However, in examining the equities in this case, the Court finds that, per the testimony of all parties, [Father] was in prison for the greatest share of [Daughter’s] minority and thus not, as a practical matter, able to pay support (albeit that the support order does not abate). Further, the Court finds that [Mother] waited fifteen years to file this action against [Father] despite [Father’s] last child support being made on April 22, 1992. [Father] has been out of prison for at least three and one-half years and [Mother] and [Daughter] have both always known where to locate [Father]. In fact, the testimony indicated that [Daughter] had lived with [Father] on a few occasions between [Father’s] prison stints and has had significant contact [301]*301with [Father] since his last release from prison over three years ago. As a result the equities do not favor [Mother’s] request for attorney fees. No attorney fees are awarded. Both parties shall pay their own respective attorney fees without contribution from the other.

(Appellant’s App. at 2-4) (emphases in original).

DISCUSSION AND DECISION

1. Arrearage Due

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Bluebook (online)
880 N.E.2d 297, 2008 Ind. App. LEXIS 126, 2008 WL 251958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcguire-v-mcguire-indctapp-2008.