ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JOSEPH A. COLUSSI ANTHONY J. CASTOR
Madison, Indiana Madison, Indiana
COURT OF APPEALS OF INDIANA
TERRY D. HAY, )
vs. ) No. 39A04-9910-CV-459
DANAH S. HAY,
APPEAL FROM THE JEFFERSON CIRCUIT COURT
The Honorable Ted R. Todd, Judge
Cause No. 39C01-9409-DR-403
June 26, 2000
OPINION - FOR PUBLICATION
Terry D. Hay appeals the trial courts order denying his petition for modification
of child support. Terry argues that, despite an agreement between him and
his former wife, Danah, to provide basic child support and college expenses, his
child support obligation is modifiable under Indiana Code § 31-16-8-1. He contends
that the trial court erred by relying on contract law in denying his
petition. Terry asserts that the following changes in circumstances require the court
to modify his support obligation: 1) the enrollment of his daughter, J.H.,
in college, and 2) Danahs increase in income. Terry also argues that
he is entitled to a modification of support because he is paying child
support in an amount that differs by more than twenty percent from the
amount he would be ordered to pay under the child support guidelines.
We conclude that Terry has failed to show a substantial change in circumstances
so as to make the terms of support unreasonable. Further, when a
parent has agreed to a support obligation greater than that required by the
guidelines, he must show a change in circumstances in addition to the twenty
percent deviation. Therefore, absent a change in circumstances, Terry was not entitled
to a modification of child support. However, Terry is entitled to the
benefit of J.H.s scholarship toward tuition. Terry may also be entitled to
partial abatement of child support for the time J.H. is away at college.
Therefore, we affirm in part and remand for further proceedings consistent with
Facts and Procedural History
Terry and Danah Hay were married on February 4, 1978. Two children
were born of the marriage: J.H., born March 22, 1981, and K.H.,
born January 8, 1988. The marriage was dissolved by Summary Decree of
Dissolution on December 6, 1994. The dissolution decree approved and incorporated the
Hays Custody of Children, Child Support and Property Settlement Agreement. Under the
agreement, the Hays established a joint custody arrangement with Terry having primary physical
custody of J.H., and Danah having primary physical custody of K.H. Terry
agreed to 1) pay Danah weekly child support in the amount of $50,
2) carry medical insurance on the children, 3) pay all uninsured medical bills
of the children, and 4) pay for the college education of the children.
The college expense paragraph provided as follows:
Terry Hay shall pay for post high school education at a state supported
trade school or college for the parties children. This shall include tuition,
room and board, books, supplies, laboratory fees, activity fees, travel expense and incidental
expenses. Terry Hay shall not however be responsible for a private college
education of the children.
Record at 12. The children were 13 and 6 at the time
of the agreement.
On October 16, 1996, the Jefferson Circuit Court modified the decree of dissolution
pursuant to the parties agreement. Under the order, Danah was granted primary
physical custody of J.H., and Terrys weekly support obligation was increased to $125.
Terrys obligation to pay uninsured medical expenses continued until Danah obtained primary
medical insurance through her employer. At that time, Terry was responsible for
54% of the uninsured medical expenses and Danah was responsible for 46%.
On July 30, 1999, Terry filed a petition to modify alleging that:
4. [J.H.] has expressed her intention to attend Vincennes University beginning in
August of 1999. Upon the entry of [J.H.] into post high school
education an order is required of the Court modifying child support for [K.H.]
and making provision for payment of the post secondary education of [J.H.] in
accordance with the Indiana Post-Secondary Education worksheet promulgated by the Indiana Supreme Court.
5. A substantial change in circumstances has occurred requiring the modification of
support and payment of college education expenses.
Record at 57-58. At the hearing on the petition, Terry argued that
J.H.s intent to enroll in college was a substantial change in circumstances justifying
modification of his child support obligation. Terry argued that he could not
have known what the actual school costs were until his daughter enrolled in
college and, therefore, the court should modify the order requiring him to pay
all of the college expenses. Discussion and Decision
On September 3, 1999, the court denied Terrys petition for a reduction in
child support. The court stated that the sole issue before it was
whether the college expense paragraph could be modified. The court concluded that
modification was not appropriate and ordered Terry to comply with the terms of
the agreement and reimburse Danah for any payments made toward J.H.s college education.
This appeal now ensues.
I. Modification of Child Support Order Entered Pursuant to an Agreement
First, Terry contends that the trial court erred in denying his petition under
principles of contract law. Terry asserts that under Ind. Code § 31-16-8-1,
child support obligations are modifiable whether they are court ordered or the result
of parties agreements. See Meehan v. Meehan, 425 N.E.2d 157, 160 (Ind.
1981) ([T]he fact that a child support order has been entered pursuant to
the terms of a settlement agreement, even where, as here, it is intended
as forever determinative by the parties, is of no consequence to the question
whether the order should subsequently be modified.).
We agree with Terry that child support orders are modifiable. Further, provisions
for the payment of college expenses are also modifiable, as college expenses are
in the nature of child support. See DeBoer v. DeBoer, 669 N.E.2d
415, 422, 423 (Ind. Ct. App. 1996) (Although modifiable by the trial court,
parties to a dissolution are also free to include a provision for payment
of college expenses within their settlement agreement.), trans. denied; Martin v. Martin, 495
N.E.2d 523, 525 (Ind. 1986) (stating that [b]ecause Ind. Code § [31-16-8-1] expressly
permits modification of an order with respect to child support, educational support orders
are also modifiable); In re Marriage of Loffredi, 232 Ill.App.3d 709, 597 N.E.2d
907, 909 (1992) (We conclude that a provision for the payment of a
childs college expenses is a matter pertaining to children and in the nature
of child support.).
Although Terry correctly states the law, it does not appear from the record
that the trial court relied on contract law in making its decision in
this case. In denying Terrys petition for modification, the trial court stated:
The parties agree that the only factual change in circumstance that is claimed
is that the daughter of the parties is going to college. The
Petitioners desire is to modify the [college expenses] paragraph to comply with the
post-dissolution adopted child support guidelines as it relates to post-secondary education. The
Respondent wishes to have the agreement enforced as written. Her position is
that it is either as [sic] a contractual obligation of the Petitioner or,
because post-secondary education is not a matter that, by itself, gives rise to
a change in circumstances in this case, since the matter was anticipated, agreed
between the parties, and approved by the Court at an earlier time.
And the Court, having heard arguments of counsel and taken the matter under
advisement, now finds that the paragraph should be enforced by the Court as
previously agreed between the parties.
Record at 64. During the hearing, both Terry and Danahs counsel acknowledged
that the child support order was modifiable.
See footnote Thus, although the trial court
did not specifically state its reasons for denying Terrys petition, we do not
believe the trial court improperly relied on contract law. The child support
order is modifiable and Terry is entitled to modification if he satisfies the
Ind. Code § 31-16-8-1.
II. Change in Circumstances
On appeal from the denial of a petition to modify, we review the
trial courts decision under the clearly erroneous standard. Beardsley v. Heazlitt, 654
N.E.2d 1178, 1180 (Ind. Ct. App. 1995), rehg denied. We will reverse
a decision regarding modification of child support only where it is clearly against
the logic and effect of the facts and circumstances that were before the
trial court. Id. Child support awards may be modified only:
(1) upon a showing of changed circumstances so substantial and continuing as to
make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support
that differs by more than twenty percent (20%) from the amount that would
be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least
twelve (12) months before the petition requesting modification was filed.
Ind. Code § 31-16-8-1. On appeal, we do not weigh the evidence
or judge the credibility of the witnesses but, rather, consider only that evidence
most favorable to the judgment, together with the reasonable inferences which can be
drawn therefrom. Bower v. Bower, 697 N.E.2d 110, 113 (Ind. Ct. App.
1998). The petitioner bears the burden of proving a substantial change in
circumstances justifying modification. Weiss v. Frick, 693 N.E.2d 588, 590 (Ind. Ct.
App. 1998), trans. denied.
A. College Enrollment
Terry contends that he has shown a substantial change in circumstances entitling him
to a modification of support. First, he asserts that his daughters decision
to enroll in college is a change in circumstances. Second, he contends
that Danahs increase in income is a change in circumstances. We will
address each claim in turn.
Terry argues that the enrollment of a child in a post-secondary education program
is a substantial change in circumstances justifying a modification of support. Appellants
Br. at 19. This is true where the parties have not made
provision for college expenses or have been unable to reach an agreement.
In such cases, the trial court may require the parents to pay such
expenses upon a petition to modify a support order. See Giselbach v.
Giselbach, 481 N.E.2d 131, 133 (Ind. Ct. App. 1985). In doing so,
the court will consider the childs aptitude and ability as well as the
parties respective financial positions. Ind. Child Support Guideline 3(E)3, commentary 3(b).
However, where the parties have agreed and the child support order provides for
payment of college expenses, the mere fact that a child actually enrolls in
college is not a change in circumstances as such enrollment was contemplated by
the parties. See I.C. § 31-16-8-1 (providing that modification requires a substantial
change in circumstances). Here, the fact that J.H. would go to college
was specifically contemplated by the parties as evidenced by Terrys agreement to pay
for college. That J.H. has actually enrolled does not change the circumstances
under which Terry obligated himself to pay her college expenses. The court
need not modify support in accordance with the computation based on the guidelines
if the change in circumstances was contemplated at the time of the existing
child support order.
Terry further argues that he could not have known the cost of his
daughters education at the time the order was entered and, therefore, he is
entitled to modification now. This argument is equally unpersuasive. Parents can
agree to pay more than a court has the power to order.
Schueneman v. Schueneman, 591 N.E.2d 603, 611 (Ind. Ct. App. 1992) (noting that
the parties to a divorce 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).
Terry has not shown that he is financially unable to pay the
costs of J.H.s college education. Rather, he merely argues that Danah should
be required to contribute to the college expenses. We note that Terry
could have agreed to pay a portion of his daughters college expenses based
on the parties respective incomes, but he chose to obligate himself for all
of his daughters college expenses. Absent a substantial change of circumstances, Terry
is obligated to perform as the agreement requires.
B. Danahs Increase in Income
Terry also contends that he is entitled to a reduction in support because
Danahs income has increased since the initial support order was entered. Initially,
we note that Terry has waived this argument on appeal as he failed
to raise this theory in the trial court. A party may not
advance a theory on appeal which was not originally raised at the trial
court. Van Meter v. Zimmer, 697 N.E.2d 1281, 1283 (Ind. Ct. App.
Notwithstanding waiver, Terrys argument is unavailing. Terry has failed to produce evidence
to demonstrate a change in Danahs income. Terry merely states that Danahs
income has increased to near equality with his income.
See footnote Appellants Br. at
16. Without evidence demonstrating a significant increase in Danahs income, we are
unable to determine that a substantial change in circumstances has occurred.
Vore v. Vore, 563 N.E.2d 154, 158 (Ind. Ct. App. 1990) (Buchanan, J.,
concurring in part and dissenting in part) (noting that while evidence of both
parties current incomes had been introduced, petitioner failed to introduce evidence of the
parties incomes at the time of dissolution; thus, petitioner failed to show a
change in income), affd, 573 N.E.2d 397 (Ind. 1991).
Moreover, in determining whether a support order should be modified, the court considers,
among other factors, the relative financial positions of the parties. See Vore
v. Vore, 573 N.E.2d 397 (Ind. 1991). Although Terry has failed to
present evidence of the parties incomes, based on a review of the record,
it appears the relative income of the parties has not substantially changed.
In an earlier modification proceeding, the court ordered Terry to pay 54% of
uninsured medical costs and Danah to pay 46%. Uninsured health expenses are
generally divided based on the parties proportionate incomes. Child Supp. G. 3(E)2,
commentary 2(b). In his child support worksheet presented in support of the
petition now on review, Terry contends that Danahs income is now 47% and
his is 53% of the parties gross adjusted income. We fail to
see how a one percent differential is a substantial change in circumstances.
Thus, Terry has failed to show a substantial change in circumstances justifying modification
of the child support order.
III. Twenty Percent Deviation
Finally, Terry argues that he is entitled to a modification of support because
he is paying twenty percent more than would be required under the guidelines.
I.C. § 31-16-8-1(b). Terry contends his weekly child support obligation should
be $120 for both children and his weekly educational support obligation for J.H.
should be $57 under the guidelines, with a total weekly obligation of $177.
Based upon the child support order, Terry must pay $125 in child
support for both children and all of the college expenses for J.H.See footnote , making
his weekly support obligation approximately $288. Again, Terry has waived this argument
on appeal for failure to present it to the trial court.
Van Meter, 697 N.E.2d at 1283.
Waiver notwithstanding, however, Terrys argument is unavailing. While we recognize the plain
language of the statute would permit modification under these circumstances, we find it
difficult to believe that the legislature intended to permit a child support agreement
to be so easily circumvented by virtue of the differential in the support
obligation amounts where there was not a change of circumstances independent from that
provided by Ind. Code § 31-16-8-1(2). To reduce support on this basis
alone vitiates the agreement of the parties and runs contrary to the public
policy of encouraging parties to agree on matters of child custody and support.
See Ind. Code § 31-15-2-17(a)(3) (To promote the amicable settlements of disputes
that have arisen or may arise between the parties to a marriage attendant
upon the dissolution of their marriage, the parties may agree in writing to
provisions for: . . . (3) the custody and support of the children
of the parties.); Clark v. Madden, 725 N.E.2d 100, 106 (Ind. Ct. App.
2000) ([W]e encourage parents to come to agreements for educational expenses as soon
as possible.); Mundon v. Mundon, 703 N.E.2d 1130, 1134 (Ind. Ct. App. 1999)
(Indiana law expressly encourages divorcing spouses to reach such agreements.).
Rather, we agree with Danah that when a parent has agreed to pay
support in excess of the guidelines and which could not be ordered by
a trial court, that parent must show a substantial change in circumstances independent
of the twenty percent deviation to justify modification. See Flannery v. Flannery,
950 P.2d 126, 132 (Alaska 1998) (stating that when a party agrees to
pay an amount in excess of that required by statute, the 15% deviation
rule is inapplicable), rehg denied; Knight v. Knight, 702 So.2d 242, 244-45 (Fla.
Dist. Ct. App. 1997) (holding that absent an independent change in circumstances such
as an inability to pay, a support order will not be modified solely
on the basis that the amount agreed to exceeds the amount payable under
the guidelines); Smith v. Collins, 107 Ohio App.3d 100, 105, 667 N.E.2d 1236,
1239 (1995) (holding that when a party voluntarily agrees to a child support
obligation which exceeds the statutory support schedule by more than ten percent, that
party must show a substantial change of circumstances beyond the statutory ten percent
deviation before the trial court may modify the support obligation). We agree
with the holding of the Florida court in Knight that a more reasonable
interpretation of this section . . . is that a change of circumstances
independent of [I.C. § 31-16-8-1] is required and that this section was intended
only to provide one simplified means of establishing that such change was substantial.
Knight, 702 So.2d at 245; see also Flannery, 950 P.2d at 132
(noting that the 15% rule can demonstrate materiality, but is not a definition
of what constitutes a change of circumstances).
Here, Terry agreed to pay all of his daughters college expenses at a
public institution. Thus, he must show a change of circumstances independent of
the deviation. As discussed above, Terry failed to meet this burden.
Terry has not shown that his income has decreased making him unable to
pay the college expenses or that Danahs income has significantly increased making the
terms of the agreement unreasonable. Thus, the trial court did not err
in denying Terrys petition for modification.
However, Terry is entitled to the benefit of J.H.s scholarship. As this
court held in Best v. Best, tuition, unless otherwise defined by the trial
court in its order of payment, means tuition fees less financial aid or
scholarships received by the student. 470 N.E.2d 84, 87 (Ind. Ct. App.
1984). Thus, Terry is responsible for J.H.s tuition less the $250 scholarship,
as well as room and board, books, fees, and other expenses as provided
in the agreement.
Terry also contends he is entitled to an abatement of support for J.H.
for the time that J.H. is away at college as he is responsible
for paying for her room and board at college. Ind. Code §
If the court orders support for a childs educational expenses at an institution
of higher learning . . . , the court shall reduce other child
support for that child that:
(1) is duplicated by the educational support order; and
(2) would otherwise be paid to the custodial parent.
The trial court must consider full or partial abatement of a parents basic
child support obligation where the parent is also obligated to pay a portion
of the childs college expenses in addition to child support. This avoids
the duplication of payment for a single expense, resulting in a windfall to
the custodial parent. Sterrett v. Hartzell, 640 N.E.2d 74, 79 (Ind. Ct.
App. 1994). Terrys child support obligation was $125 when both children were
living at home. Terry is now responsible for the cost of J.H.s
room and board while living at college, and his child support obligation remains
unchanged. The trial court should consider partial abatement of Terrys child support
obligation. We note, however, that Terrys calculations indicate he would be obligated
to pay $120 in child support under the guidelines. Thus, excluding his
obligation for college expenses, Terrys current child support obligation is approximately the same
as required by the guidelines.
Judgment affirmed in part and remanded for proceedings consistent with this opinion.
SULLIVAN, J., and BAILEY, J., concur.
Terrys attorney stated: [S]upport [for college expenses], like all other
support, is modifiable . . . . Record at 77. Danahs
attorney agreed, stating: [E]ven if the Court finds that the paragraph in
controversy here provides for 100 percent payment by Mr. Hay that the Court
nevertheless does still have power and the authority to modify the . .
. agreement under our statute case law . . . . Record
The income of mother had increased to near equality with fathers
income during the five years between 1994 and 1999. In 1994, fathers
income was significantly greater than mothers income. . . . In 1999, fathers
income was not significantly greater than mothers income. Father had weekly income
of $747.00. Mother had weekly income of $661.00. . . . Fathers
income was 53 percent of the total income of the parties and mothers
was 47 percent. Appellants Br. at 16.
The figures presented by Terry are based upon a proportionate contribution
by both parents to child support and college expenses.
Based on the figures presented in Terrys post-secondary education worksheet, Terrys
obligation for J.H.s college expenses is $156. Record at 61.
Under the child support order as modified in October 1996, Terry
pays $125 in support for both J.H. and K.H. Record at 18.
Based on his worksheet, Terry would be obligated to pay $120 in
child support for both children under the guidelines. Record at 60.