ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KEVIN C. TANKERSLEY STEVE CARTER
Winamac, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
COURT OF APPEALS OF INDIANA
DALLIS J. TIREY, )
vs. ) No. 66A03-0310-CV-410
MARLA L. TIREY, )
STATE OF INDIANA, )
Intervener Appellee. )
APPEAL FROM THE PULASKI CIRUCIT COURT
The Honorable Michael A. Shurn, Judge
Cause No. 66C01-9402-DR-7
April 20, 2004
OPINION - FOR PUBLICATION
Dallis and Marla Tirey divorced in 1994. Their dissolution decree addressed child
support with respect to two children: then eight-year-old R.T., who was the Tireys
biological child, and then three-year-old A.L., who was the biological daughter of Marlas
brother, Neal Lloyd. A.L. had lived with the Tireys since she was
five days old, as will be explained more fully below. The court
See footnote of both children to Marla, and Dallis was ordered to pay
child support for both children. Dallis filed a motion to terminate his
obligation as to A.L., and the trial court denied the motion. Dallis
appeals that ruling, presenting the following restated issues for review:
1. May a court impose a child support order upon a man who volunteered
to pay support but is neither the biological father nor the adoptive parent
of the child?
2. Did the trial court err in denying Dalliss request to modify his child
support obligation with respect to A.L.?
The facts favorable to the ruling are that in 1991, Victoria Shorter gave
birth to a daughter, A.L. Sometime thereafter, a paternity proceeding was initiated
and Lloyd was determined to be A.L.s biological father. Lloyd was in
prison at the time of A.L.s birth. While Shorter was pregnant with
A.L., she had indicated to Marla that if the child turned out to
be a girl, she was not interested in raising the child. When
A.L. was born, Marla and Dallis assumed custody of the child almost immediately.
The record does not illuminate the details, but Dallis and Marla apparently
took A.L. home in February of 1991, when A.L. was five days old.
On September 13, 1991, Shorter executed an Agreement of Custody that stated,
in relevant part, I
do hereby consent to and request that Marla
and Dallis Tirey
have full custody and control over the above named
Appellants Appendix at 49. It appears that the parties did
not initiate legal proceedings to establish formal guardianship or legal custody of A.L.
In fact, the only legal proceeding that has, to date, addressed the
issue of custody of A.L. was the dissolution action between Dallis and Marla.
The documentary evidence on that point is found exclusively in the Custody
and Visitation paragraph of the dissolution decree, which provided as follows:
The Wife is not now pregnant and the following minor child was born
of the marriage, to-wit: [R.T.], born November 2, 1985. In addition, the
parties have assumed custody of another minor child, to-wit: [A.L.], born February 28,
1991, as is more clearly shown by a copy of the custody agreement
which was entered into by the parties and which is attached hereto and
made a part hereof.
The Wife shall have custody of the minor children, and the Husband shall
have visitation with said children at all reasonable times and places
In addition, the Husband shall have the right to have access to the
childrens school records
Id. at 45. Marla testified on the subject of how Dalliss child
support obligation arose in the first place:
When we divorced, I had a feeling that I didnt feel like [Dallis]
should have been obligated to [A.L.] because it wasnt his biological child, and
so I only asked for child support for [R.T.]. And he fought
me on it, and he said that he was her dad, he raised
her, and he wanted to continue to have part of her life.
He wanted to pay child support and he wanted to have visitation.
Transcript at 20. The court set Dalliss child support obligation at $164.00
With respect to visitation privileges and his child support obligation, Dallis abided by
the terms of the dissolution decree until 2000. In that year, Dallis
was the subject of an unrelated criminal prosecution. In an attempt to
avoid that proceeding, Dallis moved to Kentucky. After he did so, he
stopped paying child support. On August 29, 2002, a bench warrant was
issued in Indiana against Dallis for failure to pay child support. By
that time, he had accumulated a child support arrearage of $13,275. On
January 28, 2003, Dallis filed a Verified Petition for Modification of Child Support
in which he asked [t]hat the child support arrearage should be recalculated to
exclude any obligation for [A.L.] since any child support order for said child
would be illegal. Appellants Appendix at 50. The illegality to which
the modification motion alluded was the fact that Dallis was not A.L.s biological
parent, nor was he her legal guardian or custodian.
We review the denial of a petition to modify child support under the
clearly erroneous standard. Scoleri v. Scoleri, 766 N.E.2d 1211 (Ind. Ct. App.
2002). The trial courts decision will be reversed only where it is
clearly against the logic and effect of the facts and circumstances before the
trial court. Id. We do not reweigh evidence or judge witness
credibility. Rather, we consider only the evidence most favorable to the judgment,
together with the reasonable inferences that can be drawn from that evidence.
Id. The person seeking modification bears the burden of proving a substantial
change in circumstances justifying modification. Id.
Dallis frames the issue before us as follows: Is an agreement to pay
child support, set forth in a divorce decree enforceable when the parties are
not the parents of the child and there has been no adoption of
[sic] guardianship over the child[?] Appellants Brief at 9. In support
of his contention that it is not, Dallis offers an argument focused primarily
upon public policy considerations. According to Dallis, at stake is the strong
public policy of enforcing a natural parents obligation to support his or her
child. Dallis claims that if our courts force him to abide by
the terms of his agreement, then we are, in effect, condon[ing] what amounts
to criminal conduct on the part of the biological parents[.] Id. at
14. We assume that the criminal conduct to which he alludes is
the failure of A.L.s biological parents to provide for her. Moreover, quoting
Fairrow v. Fairrow, 559 N.E.2d 597, 600 (Ind. 1990), Dallis notes that our
courts have established that [t]here is a substantial public policy, namely justice, which
disfavors a support order against a husband who is not the childs father.
Taking all of this together, Dallis contends that his agreement to pay
support for A.L. should be voided because (1) it contravened the established public
policy of having a childs biological parents (in this case, Lloyd and Shorter)
assume the financial responsibility of raising a child, and (2) our sense of
justice counsels against ordering someone to pay support for a child that is
not their biological child or legal ward. We find neither argument persuasive
on the facts of this case.
Dallis correctly notes that there is a strong public policy in favor of
parents supporting their biological children and that sound public policy, as well as
an innate sense of justice, also counsels against imposing that burden on someone
who is not a biological parent of the child. The principal
case on this point cited in Dalliss brief, Fairrow v. Fairrow, 559 N.E.2d
597, provides authority for those uncontroversial propositions. That case does not, however,
supply a theoretical framework for applying those principles to the facts of this
case. In Fairrow, a husband and wife divorced. The wife had
a child during the marriage. Assuming the child was his, the husband
did not challenge the portion of the dissolution decree ordering him to pay
child support. Some years later, while he was still making support payments,
the husband was inadvertently apprised of medical information that led to the discovery
that the child was not his. He instituted proceedings to dismiss the
child support order. Our supreme court reversed the denial of his petition
for relief from the child support order. The court determined that, in
certain cases, a man believed to be a childs father may challenge a
support order entered on the basis of that alleged paternity, so long as
the challenge is mounted based upon externally obtained,
See footnote clear medical proof that the
child was not his.
Dallis knew he was not A.L.s biological father, as did the court went
it entered the child support order. Therefore, the child support obligation was
not imposed on the ground that Dallis was A.L.s biological father. Rather,
it was entered because Dallis insisted upon it. Thus, Fairrow is inapposite.
In fact, Dallis does not address the critical fact that we consider
to be dispositive of this appeal, i.e., that he volunteered to subject himself
to a court-ordered support obligation. Thus, Dalliss argument suffers the infirmity of
being unmoored from the critical fact of this case.
Ind. Code Ann. § 31-15-2-17 (West 1998) provides that parties in a dissolution
proceeding may enter into agreements to settle terms related to maintenance, property division,
and child support. With respect to child support, the freedom to agree
on terms is limited only by the childs best interests. See Duillon
v. Duillon, 696 N.E.2d 85 (Ind. Ct. App. 1998), trans. denied. Thus,
for example, neither party has the right to contract away a childs support
benefits. See Schrock v. Gonser, 658 N.E.2d 615 (Ind. Ct. App. 1995).
This case, on the other hand, involves a valid agreement between the
parties establishing what might be described as gratuitous child support. We are
persuaded that in such circumstances, the rules of contracts come into play in
a way that is not the case with respect to court-imposed support.
In this situation, we are guided not only by the relevant statutory guidelines,
but also by contract principles. When parties enter into a valid agreement
with adequate consideration, the terms of the agreement are mutually and permanently binding
on the parties if the court approves the agreement. This principle applies
with respect to child support obligations in a dissolution action. See Carson
v. Carson, 120 Ind. App. 1, 89 N.E.2d 555 (1950). Moreover, the
court can include in its support order an obligation that the obligated party
voluntarily agreed to, but that the court would not have had authority to
impose in the first place without such agreement. See Schueneman v. Schueneman,
591 N.E.2d 603 (Ind. Ct. App. 1992).
In Schueneman, the father agreed at a hearing that he would pay all
of his childrens uninsured medical expenses until they were out of college, and
the court entered an order to that effect. Thereafter, the father sought
to modify the order and terminate the obligation to pay medical expenses for
his children who were past the age of twenty-one. He correctly noted
that, pursuant to the statute then in effect, the trial court did not
have statutory authority to order him to pay medical expenses for children over
the age of twenty-one. This court rejected that argument, stating, Clearly [the
father] agreed to pay the childrens past and future medical expenses
the courts order reflected [the fathers] agreement. Therefore, error, if any, was
invited by [the father] and he must now abide by the courts order.
Id. at 611. Significantly, the court went on to state, the
parties are free to agree to the custody and support of their children,
even though the trial court may not have the authority to order
the parties to do as they agree. Id. (emphasis supplied).
The only distinction between Schueneman and the instant case is that A.L. is
not their (meaning the Tireys) child. That distinction might make a difference
if we were guided by only I.C. § 31-16-6-1(a), which authorizes ordering parents
to pay child support. We must read this statute, however, in harmony
with the holdings in Carson and, especially, Schueneman. In the instant context,
that means a trial court has jurisdiction to fashion child support orders (pursuant
to I.C. § 31-16-6-1(a)), and the court has the authority to enter a
child support order in a dissolution proceeding against a non-parent (pursuant to the
rationale in Carson and Schueneman) so long as the obligated party agreed to
that term and the agreement was not the product of artifice or mistake.
That is especially so where, as here, the obligated party requested that
the obligation be imposed in exchange for consideration (in this case, visitation).
The trial court had the authority to order Dallis to continue paying support
Dallis contends that the trial court erred in denying his motion to modify
the original child support order. Dallis offers no argument independent of the
one we rejected in Issue 1 above in support of his contention that
his child support obligation should be terminated with respect to A.L. Thus,
Dallis has failed to carry his burden of proving that there has been
a substantial change in circumstances justifying the modification of support that he seeks.
The trial court did not err in denying his motion.
KIRSCH, C.J., and BARNES, J., concur.
For reasons that will become obvious to the reader, the
term custody, as it relates to A.L., is used advisedly. It appears
that in a de facto sense, Marla stands in loco parentis to A.L.
The legal classification of that relationship, if indeed there is one, is
problematic, to say the least. It is not inconceivable that the implications
of that classification could send ripples throughout the rest of this case.
The parties did not present that question, however, so we will not address
Footnote: In this case, externally obtained means that the evidence establishing
non-paternity was not actively sought by the putative father, but was discovered almost
inadvertently in a manner that was unrelated to child support proceedings.