ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
John O. Feighner Stephen P. Rothberg
Fort Wayne, Indiana Fort Wayne, Indiana
SUPREME COURT OF INDIANA
MARK STEVEN NILL, ) ) Appellant (Respondent Below ), ) Cause No. 43S03-9611-CV-704 ) in the Supreme Court v. ) ) Cause No. 43A03-9506-CV-205 KAREN (NILL ) MARTIN, ) in the Court of Appeals ) Appellee (Petitioner Below ). )
SHEPARD, Chief Justice.
The Court of Appeals held in this case that divorced parents who agreed to child support payments different than those ordered in their decree of dissolution "substantially complied" with the decree. We hold that such agreements must be submitted for court approval before they can be given legal effect.
The marriage of appellant Mark Nill and appellee Karen (Nill)
Martin ended in dissolution during October 1990. The trial court
gave Karen Martin custody of the couple's three minor children,
George, Bryan, and Daniel. It ordered Mark Nill to pay $2,100 per
month for support of the three boys in what the Indiana Court of
Appeals determined was an order in gross.
While visiting their father, all three boys were involved in
a serious automobile accident on December 29, 1992. George and
Bryan were injured severely enough to require medical treatment,
and the youngest boy, Daniel, was killed.
In January 1993 Mark Nill made his usual $2,100 payment.
Sometime in February 1993, Mark Nill talked to Karen Martin about
reducing child support payments in the aftermath of Daniel's death.
(R. at 152.) On his own initiative, he decreased the support
payment to $1,500 for February 1993. (R. at 152-153, 205-06.) In
March, Karen Martin's lawyer sent Mark Nill a letter agreeing to
accept support of $1,677 per month. (R. at 152-153, 205-06.)
There is conflict in the record about when payment of the new
support amount was to be effective.
The new agreement was
informal; it was not submitted for court action.
About a year later, on March 24, 1994, Karen Martin filed a
petition to modify, later amended and supplemented. Karen Martin
asked the court to order Mark Nill to contribute toward the college
expenses of their eldest son Bryan, and to pay any child support
arrearage. Mark Nill responded with his own petition for
modification. He contended that Daniel's death was a change of
circumstances which required a change in the support amount. He
also sought a determination of responsibility for Bryan's college
The trial court issued a modified order which recognized that
informal agreements modifying child support cannot alter the legal
obligations of court decrees. It nevertheless found that "equity
dictates that the court enforce and adopt this order" as though the
court had previously approved it. (R. at 66.) It also disposed of other issues raised by the petitions of the parties.
Each side appealed. The Court of Appeals considered whether the trial court: 1) erred in giving legal effect to the parties'
modification agreement, pertinent to computing Mark Nill's child
support arrearage; 2) erred in ordering Mark Nill to pay both child
support and college expenses; 3) erred in computing orthodontia
expenses; and 4) erred in awarding Karen Martin attorney fees.
Nill v. Martin, 666 N.E.2d 936, 937-38 (Ind. Ct. App. 1996).
We grant transfer to consider the first issue: whether the
trial court erred in finding that the original support order had
been effectively modified by the couple's informal agreement. As
to the remaining issues, we summarily affirm the Court of Appeals.
Ind. Appellate Rule 11(B)(3).
II. Modification of Child Support
In re Marriage of Baker, 550 N.E.2d 82, 87 (Ind. Ct. App. 1990); Stitle v. Stitle, 245 Ind. 168, 182, 197 N.E.2d 174, 183 (1963).
Our law regards custodial parents who receive child support
funds as trustees who hold the funds for the use and benefit of the
child. Corbridge v. Corbridge, 230 Ind. 201, 102 N.E.2d 764
(1952). The custodial parent, as a constructive trustee, may not
contract away the benefits of the trust. Grace v. Quigg, 150 Ind.
App. 371, 379, 276 N.E.2d 594 (1971).
A corollary to this rule provides that once funds have accrued
to a child's benefit under a court order, the court may not annul
them in a subsequent proceeding. Zirkle v. Zirkle, 202 Ind. 129,
172 N.E. 192 (1930). This is true even with respect to the death
of a child who is one of several children who are the beneficiaries
of an order in gross. Kaplon v. Harris, 567 N.E.2d 1130 (Ind.
In this case, the Court of Appeals correctly noted the foregoing rules. Nill, 666 N.E.2d 936, 938. It nevertheless affirmed the trial court's retroactive modification of support. Nill, 666 N.E.2d at 939. It cited three narrow situations in which credit for accrued support obligations has been allowed: 1) when support payments have been made by the obligated party even though the payments are technically non-conforming; 2) when the parties have agreed to and carried out an alternative method of payment
which substantially complies with the spirit of the decree; and 3)
when the obligated parent takes the child into his or her home,
assumes custody, provides necessities, and exercises parental
control for such a period of time that a permanent change of
custody is demonstrated.
The Court of Appeals held that Nill had
substantially complied by paying through an agreed alternative
This holding confuses the method of payment with the amount of
payment. It is true that credit has been allowed for payments that
do not technically conform to the original support decree. For
example, where the obligated parent makes payments directly to the
custodial parent rather than through the clerk of the court, we
have recognized these payments when there was sufficient proof to
convince a trier of fact that the required payments were actually
made. O'Neill v. O'Neill, 535 N.E.2d 523. (Ind. 1989). We have
also recognized "substantial compliance" where the parties agree to
an alternative method of payment that comports with the spirit of
the original decree. O'Neill, 535 N.E.2d at 424 (citing Payson v.
Payson, 442 N.E.2d 1123, 1129 (Ind. Ct. App. 1982). In Payson, for
example, the non-custodial father typically paid through the clerk
but gave cash directly to the mother, by her agreement, during
weeks when he missed the payments at the clerk's office. Id. at
By contrast, the informal arrangement between Mark Nill and
Karen Martin reduced the actual amount of support below that
ordered in the divorce decree. The new informal agreement thus did
not "substantially comply with the spirit of the original support
decree." O'Neill, 535 N.E.2d at 524.
The legislative and judicial policies against informal
modification may work an occasional inequity, but the relatively
bright-line rules are hardly without their benefits. If parties
could effect legal modifications of child support through informal
means, disputes over amounts and methods and effective dates would
certainly multiply. Disagreements over such issues have led to
expensive litigation in this case through three levels of courts.
A bright-line rule limiting informal arrangements and effecting
modifications only after the date a petition for modification is
filed short-circuits many disputes. The time and money spent
litigating informal agreements that later go awry could be well
spent for the support of children. Compared to the cost of
litigation such as that before us now, submitting for court
approval an agreed order modifying is among the simplest of legal
tasks. It is certainly within the capabilities of diligent laymen.
Judge Shields outlined the rationale for decisions which
promote consistency and predictability in the law of child support
in Whitman v. Whitman, 405 N.E.2d 608 (Ind. Ct. App. 1980). In
declining to give credit for non-conforming payments, she wrote:
One purpose of a rule of law is to provide, with a
reasonable degree of certainty, a rule to which an
individual can conform his conduct...While we do not
condemn or look askance at equity, nevertheless, in this
particular area we feel predictability and certainty has
superior merit. The obligated parent knows payment as
ordered is required and any deviation can result in court
censure. The parent receiving the support can reasonably
plan and depend on the ordered support in fulfilling the
awesome responsibility of providing day-to-day care and
support for the child in his or her custody. Both
parties know that if circumstances change, or any
question arises concerning the use of support funds, or
the necessity of the payment that the available remedy is
through judicial review, as soon as possible.
Whitman, 405 at 613.
Dickson , Sullivan, and Selby, JJ., concur.
Boehm, J., dissents with separate opinion.
John O. Feighner
Stephen P. Rothberg
Fort Wayne, Indiana
ATTORNEY FOR APPELLEE
Fort Wayne, Indiana
John O. Feighner
Stephen P. Rothberg
MARK STEVEN NILL, )
Appellant-Respondent, ) Indiana Supreme Court
) Cause No. 43S03-9611-CV-704
) Indiana Court of Appeals
KAREN (NILL) MARTIN, ) Cause No. 43A03-9506-CV-205
ON PETITION TO TRANSFER
emancipation). Identification of a death requires no legal advice
or ruling. In this regard, it is unlike emancipation, which
presents a question of law and is therefore an even better
candidate to be resolved without unnecessary legal intervention.
More importantly, as the Court of Appeals noted, the determination
of the amount properly attributed to the two surviving children in
this case was not implemented unilaterally by one parent. Rather,
the precise amount was agreed. There is no claim of overreaching,
duress, or anything else that suggests that one of the parents was
not able to evaluate the situation and agree to an appropriate
adjustment. Nor is there any claim of collusion to divert trust
funds from a child.
I agree with the Court of Appeals majority that this case fits within the concept of the "substantial compliance" exception to the requirement of court approval. Prior cases have permitted the parties to agree without court intervention, for example, that property of the value of the order may be provided in lieu of cash. This case presents a very similar issue in that it raises the question whether the parties may agree on the portion of an in gross order attributable to one child. I would recognize an exception to the general rule that modification of in gross orders requires court approval. If the custodial and non-custodial parents agree on a reduction in the total level of support after the death or emancipation of a child under an in gross order, I would not require resort to the courts. The statute explicitly permits a parent unilaterally to terminate support obligations in
the event of emancipation of a child. It does not speak directly
to the consequences of a death, but neither does it prohibit
modification by agreement under those circumstances. I would not
prevent either party from petitioning at any time for modification
of the agreed amount attributable to the remaining children. But
until that happened, I would not force the parties to consult or
engage legal advice where their reasonable expectation is that none
I do not believe my position does violence to existing precedents. The majority cites cases such as Kaplon v. Harris and In re Marriage of Baker. These cases, among others, stand for the rule set out in Kirchoff v. Kirchoff, 619 N.E.2d 592, 596 (Ind. Ct. App. 1993). Kirchoff held that a parent subject to an order in gross -- i.e., one that provides a lump sum for more than one child -- must pay the total amount specified in the order or apply for the modification of the order by a court. This rule and the cases that created and applied it dealt with instances of unilateral action by the obligated parent. However, they say nothing about the power of the parties to reach an agreement on their own, as to the amount attributable to each child. That is what occurred in this case. Thus, the rule in Kirchoff is sensible to protect the custodial parent and the child from a unilateral decrease in support by the non-custodial parent subject to an in gross order. But its rationale disappears where both parents agree. In the absence of collusion the parents can reliably be viewed as adequate representatives of the remaining children's interests. Schrock v.
Gonser, 658 N.E.2d 615 (Ind. Ct. App. 1995), reh'g denied, trans.
denied is to the same effect. In that case the majority found no
agreement where the husband had unilaterally reduced his support
obligation over a nine year period as each of his children became
emancipated. Eventually, the wife decided to seek arrearage for
the unpaid child support. The majority cited Kirchoff and Ort and
held for the wife, noting that even if she had tacitly agreed to
the reductions, the court was free to disregard them. Because the
majority, unlike the dissent, found no agreement as to the
reduction, Schrock simply follows Kirchoff. To the extent the
majority in Schrock suggests that an explicit agreement would not
be honored, I agree with the dissent in that case.
In addition, another line of cases holds that retroactive modification of support payments is erroneous if the modification relates back to a date earlier than the filing of a petition to modify. Donegan v. Donegan, 605 N.E.2d 132, 133 n.1 (Ind. 1992); Reeves v. Reeves, 584 N.E.2d 589, 594 (Ind. Ct. App. 1992), trans. denied. These cases deal with the limits on the power of a court to make adjustments in support for a given child, not the power of the parties to reach an agreement as to the proper allocation of amounts among children subject to an order in gross.
Finally, a handful of cases support the proposition that "[a]n agreement to forego child support is unenforceable because the parent has no right to contract away the child's support benefits." Ort v. Schage, 580 N.E.2d 335, 336 (Ind. Ct. App. 1991); Pickett v. Pickett, 470 N.E.2d 751 (Ind. Ct. App. 1984); Haycraft v. Haycraft,
176 Ind. App. 211, 375 N.E.2d 252 (1978); Grace v. Quigg, 150 Ind.
App. 371, 276 N.E.2d 594 (1971). These cases concern situations
where the husband and wife agree to a reduction or increase in the
amount of support for a child that was entitled to support both
before and after the agreement. The cases hold the court may
refuse to honor the agreement in order to protect the child. But
these cases do not involve the death or emancipation of a child.
Upon death or emancipation, the in gross order no longer accurately
reflects an appropriate amount of support. The agreement by the
parties, then, may fairly be viewed as an implementation of the in
gross order so as to fit the current changed circumstances. It is
simply an agreement as to what the court ordered support obligation
should become under an in gross order that, upon death or
emancipation, can no longer be accurate. Thus, Brewer v. Brewer,
506 N.E.2d 830 (Ind. Ct. App. 1987), reh'g denied, trans. denied,
which prohibits altering the support for a given child without
court approval, is also inapposite.
Rules of law should be structured so far as possible to facilitate the affairs of ordinary citizens without the need for legal advice. Most people believe that a deal is a deal if it is clear, fair, and knowingly reached through arms length bargaining. The requirement of the majority that court approval be sought in the interest of a bright line rule seems to me to miss the point that a bright line rule works to eliminate controversy and expense only if it is also a common sense rule that will be anticipated and understood by the people who are to follow it. In some
circumstances everyone knows and understands that legal assistance
is required and that the rules are sufficiently complex that an
intuitive resolution by lay persons may not work. In this
situation, however, there is nothing to suggest that the
arrangement worked out by the parties would not be honored by the
courts. Indeed, the parties were in fact represented by counsel
who communicated the agreement to adjust the support amount.
Presumably this was done in good faith. That counsel also appear
not to have anticipated that the agreement would be deemed
unenforceable simply underlines the counterintuitive result
generated by the requirement of court approval. The majority
suggests that its bright line rule will help prevent expensive
litigation. But the rule also undoubtedly forces parties into
court unnecessarily. It is true that in this case the parties
found themselves in a dispute on another issue that required court
intervention notwithstanding their agreement as to the proper
adjustment for the deceased child. However, it is unknown how many
others are cheerfully operating without judicial intervention under
agreements that we now declare unlawful. I would not force them
into court to resolve a non-dispute.
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