Family Law Case Review: Fathers Petition to Modify College Expense Sharing Provision Denied

Case: Robert O. Hedrick v. Angela R. Gilbert
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred when it issued a general attorney fee award against a Father when there was no finding that Father had litigated in bad faith or pursued his petition to modify child support frivolously and, further, the evidence established that Father’s economic circumstances were lesser than Mother’s.

HELD: Trial court acted within its discretion when it denied Father’s petition to modify the college expense sharing provision of the parties’ agreed-upon 2000 Decree. The evidence presented established that the parties’ incomes had not materially changed since the Decree.

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in 2000, with one Child. The parties’ settlement agreement, incorporated into the Decree, provided in relevant part that Child’s future post-secondary educational expenses would be divided 50/50 between the parents.

In 2011, by which time Child was 17-years-old, Father filed a petition to modify child support, reciting that the incomes for both parents had changed since the Decree. Mother responded with her own petition, which included a contempt component for Father’s failure to pay 50% of Child’s college related expenses as had been ordered in the Decree.

At the trial court’s hearing, evidence was presented that Father had been a cook at Burger King for 26 years, and was making $9.41/hr, but that his hours had recently been cut back. Mother was an LPN with a base pay of over $20/hr, but she worked only part-time. After the hearing, the trial court denied Father’s requested modification – finding no substantial and continuing change in circumstances – and finding Father in contempt for not paying his share of Child’s college expenses. The trial court also issued an attorney fee award against Father in the amount of $1500. Father appealed.

The Court of Appeals rejected Father’s argument that the trial court erred by not requiring the parties to submit child support worksheets. Because neither party submitted a worksheet at the hearing, and Father did not raise an objection at the time, any error was waived. Similarly, while Father claimed error for a lack of written findings, Father also never filed a motion for findings with the trial court. The Court of Appeals also concluded that the denial of Father’s request for modification was not an abuse of discretion, since the evidence established that the parties’ incomes had not materially changed since Decree.

Finally, the Court addressed the trial court’s attorney fee award. The fee award of $1500 was a combination of $500 arising from Father’s contempt, and $1,000 for a general award of fees. The Court of Appeals affirmed the $500 contempt award, noting that it was undisputed that Father had failed to comply with the order to pay half of Child’s college expenses. However, as to the $1,000 general fee award, the Court of Appeals reversed it, finding that there was no evidence that Father had acted in bad faith or otherwise improperly, and that the parties’ economic circumstances generally favored Mother.

The $1,000 general attorney fee award was reversed, but the balance of the trial court’s order was affirmed.

To view the text of this opinion in its entirety, click here: Robert O. Hedrick v. Angela R. Gilbert

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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