May 08 2014, 6:07 am
FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:
BRUCE N. MUNSON JESSICA S. LACY
Bruce N. Munson, P.C. Law Office of Jessica S. Lacy
Muncie, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BELINDA DOUGLAS, )
)
Appellant-Petitioner, )
)
vs. ) No. 32A01-1309-JP-403
)
NEIL SPICER, )
)
Appellee-Respondent, )
)
and )
)
L.S., )
)
Intervenor-Appellant/Petitioner. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable David H. Coleman, Judge
Cause No. 32D02-1302-JP-26
May 8, 2014
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Belinda Douglas (“Mother”) and L.S. appeal the trial court’s judgment on
Mother’s petition for adjudication of Neil Spicer’s (“Father”) child support arrearage.
Mother and L.S. present a single issue for our review, namely, whether the trial court
erred when it ordered Father to pay $6,600 in back child support.
We affirm.
FACTS AND PROCEDURAL HISTORY
Father and Mother were unmarried and living together when, on February 11,
1994, Mother gave birth to L.S. Father was listed as L.S.’s father on her birth certificate.
Father and Mother shared expenses in providing a home for L.S. When L.S. was
approximately four years old, Father moved out of the family home.
On December 31, 2004, Mother initiated a paternity action and filed a petition for
child support. And on February 5, 2005, the trial court entered a provisional order for
Father to pay Mother $200 per week in child support. On October 13, after both parties
had failed to appear at a status hearing, the trial court dismissed the paternity action.
Father did not pay any of the court-ordered child support.
Father continued to provide financial support for the care of L.S., including
providing health insurance for L.S. In February 2010, Father moved back in with Mother
and L.S. Father paid rent to Mother.
On October 8, 2012, Mother filed a “Motion to Re-Open the Case,” which the trial
court granted. And on October 29, Mother filed a “Petition for Adjudication of Support
Arrearage and for entry of Judgment Thereon.” When Father learned about Mother’s
2
petition, he moved out of the family home. Father continued to provide financial support
for L.S.
Following an evidentiary hearing on June 20, 2013, the trial court issued an order
stating in relevant part as follows:
The evidence revealed that the respondent never paid $200.00 per week
through the Clerk as ordered on February 23, 2005. The parties apparently
decided to drop the case and both contributed to [L.S.]’s support. Neither
party filed a motion to dismiss the case. They simply did not appear for the
hearing on October 12, 2005. The respondent’s contribution for [L.S.]
during this time is not clear. For a period of time, the parties lived together
with [L.S.] in the petitioner’s home.
The court finds that there were 33 weeks between February 23, 2005
and October 12, 2005 when the court dismissed the case.
The court determines that the respondent owes the petitioner child
support for 33 weeks at $200.00 per week for a total of $6,600.00.
Appellants’ App. at 49-50. Mother filed a motion to correct error alleging that Father’s
child support arrearage was $74,000, and L.S. filed a motion to intervene. The trial court
denied Mother’s motion, but granted L.S.’s motion. This appeal ensued.
DISCUSSION AND DECISION
In this matter neither party requested findings of fact or conclusions thereon.
Generally, when, as here, a trial court enters findings of fact and conclusions thereon sua
sponte, we apply a two-tiered standard of review; first we determine whether the
evidence supports the findings, and second, whether the findings support the judgment.
Davis v. Davis, 889 N.E.2d 374, 379 (Ind. Ct. App. 2008). In deference to the trial
court’s proximity to the issues, we disturb the judgment only where there is no evidence
supporting the findings or the findings fail to support the judgment. Id. We do not
3
reweigh the evidence, but consider only the evidence favorable to the trial court’s
judgment. Id. Those appealing the trial court’s judgment must establish that the findings
are clearly erroneous. Id. Findings are clearly erroneous when a review of the record
leaves us firmly convinced that a mistake has been made. Id. We do not defer to
conclusions of law, however, and evaluate them de novo. Id.
Decisions concerning the payment of child support rest within the sound discretion
of the trial court. Dore v. Dore, 782 N.E.2d 1015, 1018 (Ind. Ct. App. 2003). On review,
we will reverse a trial court’s decision in child support matters where we find that there
was an abuse of discretion or if the trial court’s determination on the issue is contrary to
law. Id.
Here, Mother’s1 argument is two-fold. First, Mother contends that the February
2005 provisional child support order did not terminate with the dismissal of the paternity
case in October 2005. Second, Mother contends that Father did not come “close to
meeting his obligation to support his daughter from 2005 onward.” Appellants’ Brief at
4. We cannot agree.
Indiana Code Section 31-15-4-14 provides in relevant part that a provisional order
in a dissolution action terminates when the final decree is entered or the petition for
dissolution is dismissed. While this is a paternity action, we hold that the same principle
applies here. See, e.g., In re Paternity of V.A.M.C., 768 N.E.2d 990, 1000 n.4 (Ind. Ct.
App. 2002) (noting we may consider case law holdings on custody and visitation made in
dissolution proceedings when determining issues related to custody and visitation in
1
While Mother and L.S. are both appellants, for ease of discussion, we refer to the contentions
on appeal as Mother’s.
4
paternity proceedings because in both types of cases the predominant concern is the best
interests of the child). Mother does not dispute that the February 2005 child support
order was a provisional order for “temporary support” pending a hearing on child
support. See Appellants’ App. at 1. Thus, we conclude that the trial court did not err
when it determined that Father’s court-ordered child support obligation terminated after
thirty-three weeks in October 2005.
Still, Mother contends that Father did not satisfy his common law duty to support
his daughter. See Pettit v. Pettit, 626 N.E.2d 444, 445 (Ind. 1993) (noting parent’s
obligation to support child is founded in nature, not contract). But Father testified that,
over the course of L.S.’s life, he had provided “over fifty percent” of L.S.’s financial
support. Transcript at 35. And the evidence shows that Father provided health insurance
for L.S. throughout her life, and he made consistent and significant contributions to L.S.’s
car insurance, clothing, food, school expenses, and the like. Mother’s contention on this
issue amounts to a request that we reweigh the evidence, which we will not do.
Finally, Mother maintains that, if the parties agreed to “operate without court
involvement” in providing financial support for L.S., such an agreement was “contrary to
Indiana’s public policy of protecting the welfare of children.” Appellants’ Brief at 5. In
support of that contention, Mother cites to Straub v. B.M.T., 645 N.E.2d 597, 600 (Ind.
1994). Our supreme court has explained that case as follows:
In Straub, we addressed the enforceability of a contract between two adults
engaged in a sexual relationship to the effect that the father would not be
held financially responsible in the event that a child was born. We held that
while we generally enforce properly formed contracts, a contract may be
void as against public policy in certain very limited circumstances. The
contract in Straub was one such example because the right to support lies
5
with the child and cannot be contracted away by others; the consideration
for the contract was sexual intercourse; and the contract did not contain
certain formalities generally thought necessary in agreements enabling
childless individuals to bear children. It was this unique set of
circumstances that led our court to hold that contract void as against public
policy.
K.S. v. R.S., 669 N.E.2d 399, 405-06 (Ind. 1996) (citations omitted).
We do not find Straub apposite here, where Father and Mother did not have a
formal support agreement but both have provided financial support for L.S. But in K.S.,
the court addressed an agreement where the parties stipulated
that because of the joint custody arrangement, there shall be no support
paid from one party to the other party unless the parties decide that it would
be best for one party to have more than 50% of the actual physical custody
of the minor child and at that time the parties will negotiate a support figure
between the parties.
669 N.E.2d at 406. Our supreme court held:
Although not without some doubt, we do not believe that this agreement
constitutes contracting away D.S.’s right to child support from a parent, as
was clearly prohibited by Straub. This agreement merely states that, at this
time, there is no need for one parent to provide another parent with support
payments. It in no way provides that one parent is not now and never will
be responsible for supporting D.S.
Id.
Here, again, the evidence shows that Father provided significant and consistent
financial support for the care of L.S. throughout her life totaling more than fifty percent
of the expenses. Indeed, while Mother initially sought court-ordered child support in
2005, she did not follow through on that request after the paternity case was dismissed.
The evidence shows that Father and Mother worked together, amicably, to provide for
L.S. without court intervention for most of L.S.’s childhood. And there is no evidence to
6
support Mother’s contention that Father attempted to contract away L.S.’s right to child
support from him. The evidence supports the trial court’s conclusion that Father’s child
support arrearage is $6,600.
Affirmed.
VAIDIK, C.J., and BROWN, J., concur.
7