ATTORNEYS FOR APPELLANT
R. SCOTT HAYES
NATALIE M. SNYDER
Hayes Copenhaver Crider
New Castle, Indiana
COURT OF APPEALS OF INDIANA
BARRY D. THURMAN, )
vs. ) No. 33A01-0205-CV-177
KAYLA R. THURMAN, )
APPEAL FROM THE HENRY SUPERIOR COURT 1
The Honorable Michael D. Peyton, Judge
Cause No. 33D01-8904-DR-049
October 22, 2002
OPINION - FOR PUBLICATION
Appellant, Barry D. Thurman (Father), appeals from the order of the trial court
upon his petition to modify visitation and child support. Father presents three
issues, which we restate as:
I. Whether the trial court erroneously admitted evidence regarding Fathers child support arrearage;
II. Whether the trial court violated the statute of limitations in calculating Fathers child
support arrearage; and
III. Whether the trial court erred in not abating portions of Fathers child support.
We affirm in part, reverse in part, and remand. Standard of Review
The record reveals that Father was divorced from Kayla R. Thurman (Mother) on
February 9, 1990. At the time of the dissolution, Mother and Father
had two minor children, S.T. and A.T. Pursuant to the original decree
of dissolution, Father was to pay $143 per week in child support.
On June 28, 1991, the trial court found that Father owed an arrearage
of $325. Fathers support payments remained at $143 per week until September
13, 1991, when his obligation was reduced to $110 until November of 1999.
On November 19, 1999, the trial court increased Fathers payments to
$182 per week for a period of six weeks, after which the amount
increased to $255 per week.
On January 5, 2001, Father filed a petition to modify custody and child
support. A hearing on this petition was held on May 3,
2001. At this hearing, Mother made arguments and asked questions regarding Fathers
lack of payment of his child support and the resulting arrearage. Father
objected to several of these questions. Mother also attempted to introduce into
evidence a worksheet prepared by her together with records from the court clerks
office showing the amount of Fathers arrearage. Father objected to the introduction
of this evidence. The court overruled Fathers objection and indicated that it
would grant the parties further time to respond to the arrearage issue.
On January 29, 2002, the trial court issued an order wherein it found
Father to be in arrears on his child support payments in the amount
of $4,986. The trial court ordered Father to pay a total of
$225 per week, with $33 per week going toward the arrearage.
Regarding visitation, the trial court determined that the parties should follow the Indiana
Parenting Time Guidelines.
Father filed a petition to submit omitted evidence and/or motion to correct error
on February 26, 2002. The trial court failed to respond to this
motion, which was therefore deemed denied on April 12, 2002. See Ind.
Trial Rule 53.3. Father filed a notice of appeal on May 8,
Generally, decisions regarding child support are left to the sound discretion of the
trial court. Thacker v. Thacker, 710 N.E.2d 942, 944 (Ind. Ct. App.
1999). We will not disturb a trial courts order modifying child support
absent an abuse of discretion or a determination that is contrary to law.
Id. We also note that Mother has failed to file an
appellees brief. In such a case, we need not undertake the burden
of developing arguments for the appellee. Railing v. Hawkins, 746 N.E.2d 980,
982 (Ind. Ct. App. 2001). Applying a less stringent standard of review,
we may reverse the trial court when the appellant establishes prima facie error.
Id. In this sense, prima facie means at first sight, on
first appearance, or on the face of it. Id.
Notice of Arrearage Issue
Father claims that the trial court erred when it allowed Mother to introduce
evidence regarding the amount of child support arrearages he owed. The admission
of evidence is entrusted to the sound discretion of the trial court.
Potts v. Williams, 746 N.E.2d 1000, 1007 (Ind. Ct. App. 2001). An
abuse of discretion is found where the trial courts decision is against the
logic and effect of the facts and circumstances before the court. Id.
Father claims that neither he nor his counsel were prepared to address the
issue of any arrearage. Father argues that he had no notice that
the issue of his arrearage might come up at the hearing on his
motion to reduce his child support payments and that the trial court violated
his right to due process when it heard evidence regarding the arrearage issue.
In support of his position, Father relies upon Indiana Code § 34-47-3-5
(Burns Code Ed. Repl. 1998), which sets forth the notice requirements for one
charged with indirect contempt. In the present case, however, there was no
contempt petition filed, nor does the record reveal that Father was ever held
in contempt. Therefore, the statute is inapplicable.
Our research reveals that in the case of Bagal v. Bagal, 452 N.E.2d
1070, 1072-73 (Ind. Ct. App. 1983), it was held that an arrearage judgment
rendered by the trial court violated the fathers due process rights when the
trial court entered the mothers tendered judgment and abstract of payments without prior
notice to the father and without giving the father an opportunity to be
heard. Bagal, however, is distinguishable from the present case. In Bagal,
the mother filed a petition for a contempt citation against the father, and
the trial court had indicated that it would hold further hearings on the
issue of the amount owed by the father, but failed to do so.
Here, Mother did not petition to have Father held in contempt for
failure to pay support. It was Father who filed the motion to
reduce his support payments. Moreover, unlike the father in Bagal, Father was
given an opportunity to be heard, and the trial court granted the parties
additional time to submit arguments regarding the arrearage issue.
Father seems to argue that the only proper way to determine if there
is an arrearage is through a contempt citation. To be sure, a
contempt citation is one means of determining an arrearage.
See Pettit v.
Pettit, 626 N.E.2d 444 (Ind. 1993) (noting that, in Indiana, child support obligations
have long been enforceable by contempt). However, such is not the only
appropriate way to enforce child support obligations. See Ind. Code § 31-16-12-1
(Burns Code Ed. Supp. 2002) (listing means available to enforce child support orders);
Ind. Code §§ 31-16-2-1 through 31-16-2-8 (Burns Code Ed. Repl. 1997) (governing
actions for child support); Kuhn v. Kuhn, 273 Ind. 67, 402 N.E.2d 989
(1980) (plaintiff filed suit against ex-husband seeking judgment for accrued child support with
no mention of contempt); Haton v. Haton, 672 N.E.2d 962 (Ind. Ct. App.
1996) (dealing with a petition to determine and reduce delinquent child support to
judgment with no mention of contempt), trans. denied.
We conclude that, if a party petitions the trial court to modify a
child support order, the entire issue of child support, including arrearages, may be
heard without unfair surprise to the party seeking the modification. Father should
have been aware that all issues relevant to his support payments, including any
arrearage, might be brought before the trial court upon his motion. Cf.
Tatum v. Tatum, 773 N.E.2d 371 (Ind. Ct. App. 2002) (issue of modification
of child support was properly before the trial court although neither party requested
a partial reduction in support where father petitioned for termination of support); In
re Marriage of Johnson, 625 N.E.2d 1331 (Ind. Ct. App. 1993) (where mother
in her petition requested all other relief, trial court had power to award
back child support even though mother did not specifically request to recover delinquent
support in her petition); Huffman v. Huffman, 623 N.E.2d 445 (Ind. Ct. App.
1993) (issue of visitation was properly before trial court and mother had notice
that a change in visitation might result upon Fathers petition to modify custody
because visitation is inextricably linked to custody and a change in custody will
often necessitate a change in visitation), trans. denied; OCampo v. OCampo, 597 N.E.2d
1314 (Ind. Ct. App. 1992) (recognizing that, under limited circumstances, modification of support
is permissible even in the absence of a petition therefor).
Here, the issue of child support arrearage was linked with the issue of
Fathers petition to reduce his child support payments. Indeed, this issue is
but a part of the broader issue of child support. Father knew
that he was behind in his support payments and petitioned to reduce his
support payments. Therefore, we cannot say that he was unfairly surprised when
Mother introduced evidence as to the amount of his arrearage. Father has
failed to demonstrate prima facie error in the trial courts admission of evidence
regarding his child support arrearage.
Statute of Limitations
Father claims that the trial court erred when it included in its calculation
of arrearage delinquent child support for which the applicable statute of limitations had
expired. Father cites Kuhn, which held that the general statute of limitations,
Ind. Code § 34-1-2-3, now found at Ind. Code § 34-11-1-2, was applicable
to actions to recover accrued, court-ordered child support payments. 273 Ind. at
72, 402 N.E.2d at 991. This statute states that, [a] cause of
action that . . . arises on or after September 1, 1982[,] and
. . . is not limited by any other statute[,] . . .
must be brought within ten (10) years. I.C. § 34-11-1-2 (Burns Code
Ed. Repl. 1998). Father also cites Haton, which followed Kuhn, and applied
the general statute of limitations to an action to recover accrued court-ordered child
support. 672 N.E.2d at 963. The Court in Kuhn held that
the statute of limitations begins to run on each installment of child support
as it becomes due and unpaid. 273 Ind. at 72, 402 N.E.2d
at 991. Applying the rule of these cases, Father claims that the
trial court improperly included in its arrearage calculation payments which had become due
and unpaid more than ten years ago.
We note, however, that on May 8, 1995, Ind. Code § 34-1-2-1.6 was
enacted and given emergency effect. See Connell v. Welty, 725 N.E.2d 502,
506 (Ind. Ct. App. 2000). This section has since been recodified at
Ind. Code § 34-11-2-10 (Burns. Code Ed. Repl. 1998), and states:
An action to enforce a child support obligation must be commenced not later
than ten (10) years after:
(1) the eighteenth birthday of the child; or
(2) the emancipation of the child;
whichever occurs first.
Thus, a more specific statute of limitations has been enacted to cover actions
to enforce child support obligations. III
Two general rules apply with respect to the enactment of a new statute
of limitations: (1) the period of limitation in effect at the time the
suit is brought governs in an action even though it may lengthen or
shorten an earlier period of limitation; (2) however, a new statute of limitations
cannot revive a claim which was foregone under the prior statue of limitations
before passage of the new one. Connell, 725 N.E.2d at 506.
In the present case, Fathers oldest child support obligations became due and unpaid
in 1990. However, prior to the expiration of the then-applicable general statue
of limitations, our General Assembly enacted what is now I.C. § 34-11-2-10, which
specifically governs actions to recover delinquent child support obligations. Therefore, according to
the rule set forth above, I.C. § 34-11-2-10 applies to the present case
whether it lengthens or shortens the earlier applicable period. Pursuant to I.C.
§ 34-11-2-10, any action to enforce a child support obligation must be commenced
not later than ten years after the eighteenth birthday or the emancipation of
the child who is the object of the support order, whichever occurs first.
Here, at the time of the hearing, S.T. and A.T. were fourteen
and twelve years old respectively, and there is no suggestion that either child
has been emancipated. Therefore, the ten-year period set forth in I.C. §
34-11-2-10 has not even begun to run in the present case, and the
trial court did not therefore err in calculating Fathers child support arrearage.
Abatement of Child Support
Father claims that the trial court erred when it failed to abate his
child support payments during periods of extended visitation. As set forth in
the decree of dissolution, Father was to have no less than one month
of summer visitation with S.T. and A.T., and during such visitation, Fathers support
was to abate. (A-55). On November 24, 1999, the court entered
an order increasing Fathers child support. (A-39, 46). Included in this
order was a provision that any time that [Father] shall have the minor
children with him for seven (7) or more consecutive days, the support shall
abate by one-half (1/2). Appendix at 47. In its order on
Fathers petition to modify custody and child support, which is the subject of
the present appeal, the trial court acknowledged this abatement provision, stating, Part of
that order [of November 1999] included an abatement of ½ of the support
for any period of visitation of 7 days or more. Appendix at
39. In the next sentence, however, the trial court stated that it
ha[d] received no evidence to require an abatement calculation. Id. It
is this conclusion that Father challenges.
At the hearing on Fathers petition to modify custody and child support, Father
testified regarding his summer visitation with his children, [Mother] usually told me when
I had to have them. I got them for a month in
the summer. Transcript at 8. Father also testified that these visitations
went well. Mother likewise testified that, prior to the filing of Fathers
current petition, that Fathers visitations had gone well. Mother further testified that
Father had visitation with the children every other weekend, every other holiday and
four weeks in the summer. Transcript at 41.
Thus, there was uncontradicted evidence before the trial court that Father had extended
visitation with the children in the summer for a period of four weeks
to one month. Yet the trial court concluded that it had received
no evidence requiring an abatement. We conclude that Father has established prima
facie error upon the part of the trial court for failure to abate
his child support for the summer visitation to which both parties testified.
We therefore reverse the trial court as to this issue and remand with
instructions to calculate any abatement that may be due to Father pursuant to
the trial courts orders for any period of extended summer visitation.
The order of the trial court is affirmed in part, reversed in part,
and remanded for proceedings not inconsistent with this opinion.
BAILEY, J., and MATHIAS, J., concur.
Indeed, when asked if ten days would be sufficient additional time
to submit arguments regarding the arrearage, Fathers trial counsel indicated in the affirmative.