Summerville v. Summerville

679 N.E.2d 1344, 1997 Ind. App. LEXIS 521, 1997 WL 253771
CourtIndiana Court of Appeals
DecidedMay 16, 1997
Docket28A01-9702-CV-59
StatusPublished
Cited by8 cases

This text of 679 N.E.2d 1344 (Summerville v. Summerville) 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
Summerville v. Summerville, 679 N.E.2d 1344, 1997 Ind. App. LEXIS 521, 1997 WL 253771 (Ind. Ct. App. 1997).

Opinion

OPINION

ROBERTSON, Judge.

Gilbert Summerville [Father] appeals certain post-dissolution orders entered which pertain to the two children born of his marriage to Melanie Cravens [Mother]. Father raises three issues. We affirm in part and reverse and remand in part.

FACTS

The facts in the light most favorable to the trial court’s judgment reveal that Father and Mother are the parents of a boy born August 23,1977 [Son], and a girl born September 16, 1982 [Daughter], The parents were divorced in 1990. Mother was awarded custody of the children subject to Father’s reasonable visitation, and Father was ordered to pay a specified sum of undivided support for both children.

Father and Son had a falling out in 1994, and Son has not visited with Father since *1346 that time. Son graduated from high school in May of 1995 and has not attempted to obtain any further education. Son turned eighteen years-old on August 23, 1995. Except for short periods of unemployment, Son has worked full-time since graduating from high school. Son refused to honor Father’s discovery requests or the trial court’s discovery orders resulting in the delay of these proceedings. Father has had visitation with Daughter on alternating weekends, every other holiday, and two full weeks in the summer.

On April 11, 1996, Father filed the instant petition seeking to have Son declared emancipated and the child support obligation adjusted accordingly. Father also requested the trial court to order an increase in his visitation with Daughter. Trial was held on October 17, 1996. The trial court interviewed Daughter in chambers. On October 30, 1996, the trial court entered an order declaring Son emancipated effective as of that date. The trial court denied Father’s request to increase visitation with Daughter. This appeal ensued. Additional facts are supplied as necessary.

DECISION

I.

Emancipation — Date that Support Terminates

Father argues the trial court erred in ordering Son emancipated effective the date it entered its judgment, October 30, 1996, asserting that Son’s circumstances have not changed since his eighteenth birthday. Father argues that the trial court should have ordered Son’s emancipation retroactive to his eighteenth birthday, or in the alternative, to the date Father filed his petition. Mother does not challenge the trial court’s judgment that Son was emancipated but argues that the date chosen for Son’s emancipation was an appropriate exercise of the trial court’s discretion.

A successful assertion of emancipation will be deemed effective as of date of emancipation, rather than of date of filing of petition. Donegan v. Donegan, 605 N.E.2d 132, 133 (Ind.1992). Thus, where there have been no material changes in the facts and circumstances relevant to the issue of emancipation, the trial court’s finding that a child is emancipated as per a certain arbitrary date, and not before, is clearly erroneous. Id. at 134. Where only one child is subject to a support order, the trial court abuses discretion in requiring the obligor parent to continue making payments beyond the actual date of the child’s emancipation, regardless of when the obligor parent petitioned for relief. Beckler v. Hart, 660 N.E.2d 1387, 1389 (Ind.Ct.App.1996). In Beckler, we held the trial court abused discretion by requiring the father to make payments until the date the Father filed his petition which, based on a static set of circumstances, was beyond the actual date of the daughter’s emancipation. Id. Judge Staton concurred noting:

if several children are covered by the support order, the date of emancipation for one of the several children does not terminate the obligation of support as it does in the case of the single child support order. When one of several children covered by a support order is emancipated, the obligated party under the support order must petition for a modification to reduce the amount of the support obligation.

660 N.E.2d at 1390 (Citing Kirchoff v. Kirchoff, 619 N.E.2d 592, 596 (Ind.Ct.App.1993)). In Kirchoff, we noted that a father who paid a specified sum of undivided support for multiple children was obligated to pay the amount ordered at least until he petitioned the court for relief. Id. at 596-97. The present case involves the circumstances anticipated by Judge Staton in Beckler. See 660 N.E.2d at 1390.

In the present case, Father was paying an undivided sum for child support for more than one child. There have been no material changes in the facts and circumstances relevant to the issue of Son’s emancipation since the date Father filed his petition, April 11, 1996. Thus, under the authorities cited above, we hold that Father’s obligation to pay support for Son terminated as of that date. Therefore, we reverse and remand with instructions that the *1347 trial court order its modified child support order effective retroactive to April 11, 1996.

II.

Child Support

A trial court’s calculation of child support obligations pursuant to the child support guidelines is presumptively valid. Marmaduke v. Marmaduke, 640 N.E.2d 441, 443 (Ind.Ct.App.1994), tram, denied. The party seeking deviation from the guideline amount carries the burden of demonstrating that the guideline amount is unjust or inappropriate under the existing circumstances. Id. Reversal of a trial court’s child support order is merited only where the trial court’s determination is clearly against the logic and effect of the facts and circumstances. Kinsey v. Kinsey, 640 N.E.2d 42, 43 (Ind.1994). On the appellate review of a child support order, weight and credibility issues are disregarded and only the evidence and reasonable inferences favorable to the judgment are considered. Id. at 43-44. Judges are advised to avoid the pitfall of blind adherence to the computation of support without giving careful consideration to the variables that require changing the result in order to do justice. Id.

Father asserts the trial court erred in setting the modified child support order pertaining to Daughter. Father works for the U.S. Navy which is required to deduct money from his paycheck for “Mandatory Civil Service Withholding” which goes to pay for his anticipated civil service retirement benefits. Father argues that this deduction, along with all the taxes deducted, reduces his available income by 30%. Therefore, Father argues that, since Guideline 1 of the Indiana Child Support Guidelines assumes a 21.88% tax rate, the trial court should have granted him a deviation from the presumptive guideline amount.

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Bluebook (online)
679 N.E.2d 1344, 1997 Ind. App. LEXIS 521, 1997 WL 253771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summerville-v-summerville-indctapp-1997.