Lepper v. Lepper

GARRARD, Judge,

dissenting in part.

I concur in parts I, II and IV of the majority opinion.

On the issue of child support I would reverse because there was not sufficient evidence adduced at trial to enable the court to establish a reasonable support allowance to be paid by the mother. In reaching that determination I find it unnee-essary to determine whether IC 31-1-11.5-12 provides a litany which must be chanted in a section 17 proceeding.

I agree that the change in custody constitutes a substantial change of circumstance es justifying a modification of support. Whether or not IC 31-1-11.5-12 technically applies, to be reasonable the new award must consider the needs of the child and the resources of the parents.

The record before us, while disclosing the mother's income, is silent concerning the needs of the child and the father's income. The determination that the mother should pay $70 per week is thus necessarily arbitrary and not sustained by the evidence. The majority would apparently avoid this failure by its assertion that the mother has not claimed she could not afford this amount. She has, however, challenged the propriety of the order and, fairly taken, her claim is that the amount ordered was in error in the absence of any evidence of the father's income or the child's needs.

I would therefore reverse as to the award of child support and remand for a hearing thereon.