FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
GEORGE R. LIVARCHIK I. ALEXANDER WOLOSHANSKY
Chesterton, Indiana Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: )
)
MICHAEL DORE, )
)
Appellant-Petitoner, )
) No. 64A03-0206-CV-208
vs. )
)
DONNA DORE, )
)
Appellee-Respondent. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Thomas W. Webber, Sr., Judge
Cause No. 81-PSC-DR-3088
February 6, 2003
OPINION - FOR PUBLICATION
ROBB, Judge
The trial court entered an Order on Child Support Arrears, awarding
Donna Dore child support and medical arrears and reducing the arrears to
judgment. Her ex-husband, Michael Dore, now appeals the decision of the
trial court. We affirm.
Issue
Michael raises a single issue for our review, which we restate as
whether the trial court abused its discretion in awarding child support and
medical arrears.
Facts and Procedural History
On December 11, 1981, the trial court issued a Dissolution Decree
dissolving Michael and Donna’s marriage. Donna was awarded custody of the
couple’s only child, Danielle (born 4/1/1981), and Michael was granted
visitation and ordered to pay child support. When Michael failed to make
the child support payments, Donna made repeated attempts to enforce
Michael’s obligation to pay child support. Michael was arrested on a Bench
Warrant issued by the trial court on July 26, 1985, due to his failure to
appear at hearings. Once arrested, he entered into an agreement to pay
child support. When he changed employers, however, he ceased payments for
a time. A new Order was entered in November 1988, but Michael failed to
make payments again. Another Order was entered on June 14, 1989.
Donna filed a Motion for Rule to Show Cause in August 1990 due to
Michael’s non-payment. Another Order was entered September 13, 1991. Yet
another Order was entered on October 3, 1991, finding Michael in arrears on
child support in the sum of $15,046.98.
Donna filed another Motion for Rule to Show Cause on April 8, 1992,
due to Michael’s non-compliance with his child support obligation. In an
order dated June 10, 1993, Michael was found to be in Contempt of Court and
sentenced to ninety days in the Porter County Jail. That sentence was
stayed conditioned upon Michael meeting certain obligations. When he did
not meet the obligations, another Bench Warrant was issued for his arrest.
Donna filed another Motion for Rule to Show Cause on August 1, 1996.
On March 17, 2000, Michael was arrested and on March 24, 2000, the trial
court approved an Agreed Order. The Order made no mention of child support
arrearages as of that date.
Danielle turned eighteen on April 1, 1999. On October 31, 2000,
Danielle married and was therefore emancipated. On June 19, 2001, Michael
filed his Petition to Emancipate Danielle. The Petition was granted the
same day. On January 29, 2002, Donna filed her Petition to Establish Child
Support Arrearage. The trial court held a hearing on May 23, 2002, and
entered an Order on Child Support Arrears calculating Michael’s child
support arrears at $16,248.70 and medical arrears at $9,581.32 and reduced
both to judgment in favor of Donna. This appeal ensued.
Discussion and Decision
I. Standard of Review
Generally, decisions regarding child support rest within the sound
discretion of the trial court. Painter v. Painter, 773 N.E.2d 281, 282
(Ind. Ct. App. 2002). We will reverse a trial court’s decision in child
support matters only for an abuse of discretion or if the trial court’s
determination is contrary to law. Id.
II. Statute of Limitations for Child Support Arrearage
Michael argues that the trial court erred in calculating his child
support arrearage for two reasons: first, he argues that the prior Orders
were never reduced to judgment and therefore, reflect only findings which
were not preserved beyond the statute of limitations in effect when each
Order was handed down; second, he argues that enforcement of each
installment was barred ten years after it became due and unpaid and
therefore, he should not be required to pay any child support installment
which was more than ten years overdue when Donna filed her Petition to
Establish Child Support on January 29, 2002. We address each contention in
turn.
First, Michael argues that the prior Orders were not reduced to
judgment and therefore, constitute only findings.[1] Donna, however,
argues that each ruling made reference to the previous ruling in
determining the arrearage at that time, thereby keeping the judgments from
expiring. She contends that she has kept the case alive through hearings,
contempt citations and rulings from the trial court. Therefore, she argues
that the statute of limitations does not bar her from recovering the full
amount awarded by the trial court.
In order to determine whether the previous Orders were reduced to
judgment, we must examine the wording of each Order. Because not all of
the Orders were provided to this court for examination, we examine the
Orders provided in chronological order.[2] We look first to the October 3,
1991, Order. This Order begins by stating the amount of arrearage to that
point:
1. That on September 15, 1988 this Court determined that the
Respondent, Michael Dore, was in arrears on child support
in the amount of $8,271.98. That since that time the
Respondent has fallen behind an additional $6,775.00 in
child support for a total child support arrearage as of
September 13, 1991 of of [sic] $15,046.98.
Brief of Appellee at 14. Therefore, the October 3, 1991, Order is
referencing an earlier Order which found that Michael was in arrears in the
amount of $8,271.98 as of September 15, 1988. The October 3, 1991, Order
then accepts that amount and adds the additional amount from September 15,
1988 through September 13, 1991. This covers a period of time less than
three years and is clearly within the statute of limitations.
Additionally, the October 3, 1991, Order stated:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that:
1. The Respondent, Michael Dore, is in arrears on child
support in the sum of $15,046.98 as of September 13, 1991.
In addition thereto Respondent owes Petitioner, Donna Dore,
the sum of $2,221.00 in medical reimbursement costs that
the Petitioner incurred on behalf of the parties’ minor
child which expenses are in the character of child support
and not dischargeable in bankruptcy.
Id. at 15. Therefore, this Order accepted the judgment of the September
1988 Order, added additional delinquent child support payments from
September 1988 until October 1991, and reduced the amounts to judgment.
The next Order which was provided to this court for review was issued
by the trial court June 10, 1993. Appellant’s Appendix at 17. That Order
states that Michael was in arrears for child support payments for a total
of $14,742.98 as of June 2, 1993. Id. at 18. This amount is reduced to
judgment. Id. at 19. The Order accepts the arrearage from the previous
Order and adds additional delinquent payments from October 1991 through
June 1993, again an amount of time clearly within the statute of
limitations.
Next, we consider the May 23, 2002, Order. That Order sets the
amount of child support arrears at $16,248.70 and reduces that amount to
judgment. Id. at 8. That Order accepts the amount from the previous Order
and adds additional delinquent payments from June 1993 to the date of
Danielle’s emancipation. This Order reflects back less than ten years, a
period of time within the statute of limitations.
Therefore, none of the Orders purports to address payments more than
ten years delinquent. Each Order accepts the decision of the previous
Order and adds payments, none of which dates back more than ten years.
Therefore, the arrearage is not barred by the statute of limitations.
Michael contends that the arrearage is barred by the statute of
limitations because the Orders were findings rather than judgments. In
support of this contention, he states that Donna used contempt proceedings
to enforce the delinquent child support payments and he argues that
contempt is not available for judgments. Therefore, he states that the
Orders must have been findings rather than judgments and therefore, the
payments were not reduced to judgment and any delinquency more than ten
years prior to the date Donna filed her Petition to Establish Child Support
Arrearage is barred by the statute of limitations. However, the Indiana
legislature has specifically recognized that contempt is available as one
tool to enforce child support payments. See Ind. Code § 31-14-12-3. In
addition, our supreme court has also recognized the inherent powers of a
trial court to use contempt as a remedy in the context of child support.
Pettit v. Pettit, 626 N.E.2d 444, 446 (Ind. 1993) (“Therefore, we hold that
contempt is always available to assist in the enforcement of child support,
at least in respect of unemancipated children, including orders to pay
accrued arrearages and money judgments against delinquent parents for past
due amounts.”). Thus, Michael’s argument that his contempt citations
indicate that the previous Orders were merely findings and not judgments is
without merit.
Additionally, Michael claims that the trial court erred when it
included in its calculation of arrearage delinquent child support for which
the applicable statute of limitations has expired. Michael cites Kuhn v.
Kuhn, 273 Ind. 67, 402 N.E.2d 989 (1980), which held that the general
statute of limitations, Indiana Code section 34-1-2-3, now found at Indiana
Code section 34-11-1-2, was applicable to actions to recover accrued, court-
ordered child support payments. Id. 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.” Ind. Code § 34-11-1-2. Michael also cites Haton v.
Haton, 672 N.E.2d 962 (Ind. Ct. App. 1996), trans. denied, which followed
Kuhn, and applied the general statute of limitations to an action to
recover court-ordered child support. Id. 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. Id. at 991. Applying the rule of
these cases, Michael claims that the trial court improperly included in its
arrearage calculation payments which had become due and unpaid more than
ten years ago. See also Thurman v. Thurman, 777 N.E.2d 41, 44-45 (Ind. Ct.
App. 2002) (holding that father incorrectly relied on repealed statute of
limitations in appealing the trial court’s determination of child support
arrearage).
The confusion here seems to stem from a change in the statute of
limitations for child support actions after Michael and Donna’s dissolution
but before Donna brought her Petition to Establish Child Support Arrearage.
Previously, child support actions did not have a separate statute of
limitations and were governed by Indiana Code section 34-1-2-3 which
provided:
All actions not limited by any other statute shall be brought
within fifteen (15) years.
See, e.g., Kuhn, 402 N.E.2d at 991. Prior to 1983, the Indiana legislature
amended section 34-1-2-3 to state:
All actions not limited by any other statute shall be brought
within ten (10) years unless the cause of that action arose
before September 1, 1982, in which case the action must be
brought within fifteen (15) years. In special cases, where a
different limitation is prescribed by statute, the provisions of
this section shall not apply.
See, e.g., Haton, 672 N.E.2d at 963. This appears to be the statute of
limitations which Michael is relying upon for his contention that several
of his past child support installments are no longer available to Donna
because they are more than ten years old. However, as shown above, each of
the Orders issued by the trial court consisted of a renewal of the previous
amount and an addition of less than ten years’ worth of child support
installments. Therefore, even under the previous statute, Michael’s child
support installments are not barred by the statute of limitations.
We note that on May 8, 1995, Indiana Code section 34-1-2-1.6 was
enacted and given emergency effect. See Thurman, 777 N.E.2d at 44. This
section has since been recodified at Indiana Code section 34-11-2-10 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.
Ind. Code § 34-11-2-10. Thus, a more specific statute of limitations has
been enacted to cover actions to enforce child support obligations. See
Thurman, 777 N.E.2d at 44.
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
statute of limitations before passage of the new one. Connell v. Welty,
725 N.E.2d 502, 506 (Ind. Ct. App. 2000).
In the present case, Donna’s earliest attempts to collect Michael’s
unpaid child support obligations began in May 1985. At that point, the
prior statute of limitations had not foreclosed her action because she
brought it within ten years of the earliest child support installment. In
May 1995, our General Assembly enacted what is now Indiana Code section 34-
11-2-10, which specifically governs actions to recover delinquent child
support obligations. See also Thurman, 777 N.E.2d at 45. Therefore,
according to the rule set forth above, section 34-11-2-10 applies to the
Petition to Establish Child Support Arrearage whether it lengthens or
shortens the earlier applicable period.
Pursuant to section 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, Danielle turned eighteen on April 1,
1999 and was married on October 31, 2000. Therefore, her eighteenth
birthday occurred first. Thus, the ten-year period set forth in section 34-
11-2-10 began running on April 1, 1999 and had not expired when Donna filed
the Petition to Establish Child Support Arrearage on January 29, 2002.
Therefore, the trial court did not err in calculating Michael’s child
support arrearage.[3]
Conclusion
The current statute of limitations for child support obligations
mandates that an action be brought no later than ten years after the
eighteenth birthday or emancipation of the child in question, whichever
comes first. As the statute of limitations has not yet run on Michael’s
child support obligations, the trial court did not abuse its discretion in
calculating Michael’s child support arrearage. Additionally, the previous
statute of limitations allowed ten years from each child support
installment to seek relief. Because Donna did not wait more than ten years
to have each child support installment reduced to judgment and has not
waited more than twenty years to execute any of the judgments, the trial
court did not abuse its discretion in calculating Michael’s child support
arrearage.
Affirmed.
BAILEY, J., and BARNES, J., concur.
-----------------------
[1] If this court finds that the Orders were reduced to judgment,
Donna would have twenty years from each judgment in which to enforce the
Order. See Ind. Code § 34-11-2-12, which provides that:
Every judgment and decree of any court of record of the United
States, of Indiana, or of any other state shall be considered
satisfied after the expiration of twenty (20) years.
Ind. Code § 34-11-2-12. Therefore, a party has twenty years from the date
the money judgment was entered and indexed by the trial court to execute
it. Arend v. Etsler, 737 N.E.2d 1173, 1176 (Ind. Ct. App. 2000). The
earliest Order referenced by either party was issued in 1985. If this
court finds that the Order was reduced to judgment, Donna would have until
2005 to enforce the earliest Order.
[2] We note initially that not all of the Orders from the trial court
are included in the materials delivered to this court. Out of the many
Orders issued, we have only the Orders from October 3, 1991 (contained in
the Brief of the Appellee and not in the Appendix), June 10, 1993, and May
23, 2002. It is the Appellant’s responsibility to provide us with an
Appendix which includes all relevant pleadings and other documents,
including previous Orders. See Ind. Appellate Rule 50(A)(2). Especially
considering Michael is trying to prove to this court that each of the
earlier Orders was not reduced to judgment, he would have been wise to
include the earlier Orders for this court’s review. Without the other
Orders, we are confined to reviewing the Orders provided to us.
[3] Donna additionally requests damages including appellate attorneys’
fees arguing that Michael’s appeal was frivolous or brought in bad faith.
See Ind. Appellate Rule 66(E) (“The Court may assess damages if an appeal,
petition, or motion, or response, is frivolous or in bad faith. Damages
shall be in the Court’s discretion and may include attorneys’ fees. . . .”)
Specifically, she states that this is “merely the next step in avoiding
and delaying his child support obligation.” Brief of Appellee at 11. “A
strong showing is required to justify an award of appellate damages, and
the sanction is not imposed to punish lack of merit unless an appellant’s
contentions and arguments are utterly devoid of all plausibility.” Kuehl
v. Hoyle, 746 N.E.2d 104, 110 (Ind. Ct. App. 2001), trans. denied.
Although Michael’s argument did not carry the day, Donna has not proven
that it was devoid of all plausibility. Therefore, we deny her request for
appellate damages.
