Thacker v. Thacker

SULLIVAN, Judge,

concurring in part and dissenting in part.

I agree with the majority opinion insofar as it holds that a support order in gross for two or more children may not be modified by the mere fact of emancipation of one of the children. Such a modification must be obtained by petition and court order. Therefore, I concur in that portion of the majority opinion which binds Father to the $135 support ordered at the outset and which holds that he erroneously reduced his support payments to $100 when the son left the custodial home from August 22, 1991 through June 8, 1993, during which period he was the sole provider of his own support.1

However, by way of clarification, I do not agree with the majority’s blanket statement that a support modification may never be made effective earlier than the date of the filing of a modification petition. See op. at 944-45. The statement is inaccurate insofar as it purports to deny a retroactive modification when an only child or all children have become emancipated.

*948The son was an adult child, i.e. over the age of 18, when he left home and was on his own from August 22, 1991 through June 8, 1993. He was truly emancipated during this period. If he had been the only child of the marriage, Father’s assertion of emancipation would have merit. In Donegan v. Donegan (1992) Ind., 605 N.E.2d 132, our Supreme Court held that unlike a modification sought for changed circumstances, an assertion of emancipation is deemed effective as of the date of emancipation rather than as of the date of the filing of the petition for modification.

Here, it is only because during the period in question the daughter was not emancipated and the amount of support due was in gross that Husband’s claim for retroactive modification from 1991 to 1993 must be rejected. Kirchoff v. Kirchoff (1993) Ind.App., 619 N.E.2d 592; Ross v. Ross (1979) Ind.App., 397 N.E.2d 1066.

With respect to the daughter, however, I respectfully dissent. The trial court specifically found that the daughter, “age 17, left the residence of her mother on September 1, 1997 and since that date has been living on her own and under her own dominion.” Record at 35. I am unable to read this finding of fact as anything other than a statement that as of that date, the daughter became emancipated. In furtherance of that finding, the court “vacated” the child support order as of that daté. Record at 35. I can conceive of no basis why the trial court could relieve Father of his support obligation unless the court found daughter to be emancipated.

The holdings of the majority in this respect seem to be inconsistent. On the one hand, my colleagues hold that daughter was not emancipated during the time she was not living in her mother’s home. However, by ordering Father to pay directly to daughter, amounts representing his support obligation, our opinion seems to be stating that she is entitled to such sums because, like the son, she was her own sole support.

I would affirm the trial court’s termination of all support, with the exception of college expenses, effective September 1,1997.

I concur with respect to the trial court’s order concerning payment of daughter’s college expenses.

Furthermore, I heartily endorse and concur in the holding that the arrearage owed for such period should be paid directly to the son and not to Mother.

. That the son may have returned to his mother’s home before reaching age 21 and that he may have been partially or folly dependent upon his mother and/or father for support, does not in fact or law invalidate a determination that during a prior period he was emancipated. Corbridge v. Corbridge (1952) 230 Ind. 201, 208, 102 N.E.2d 764. (following emancipation, "if the child becomes unable to support itself (sic), the father’s duty revives”).