In affirming the trial court’s decision to increase a father’s weekly child support obligation to four times the amount he and his ex-wife initially agreed to, the Indiana Court of Appeals asked the Supreme Court to determine how Indiana Code 31-16-8-1 should be interpreted.
Mark and Melissa Rolley have one daughter from their marriage. They agreed during divorce proceedings that Mark Rolley would pay $350 a week, which was not based on the Child Support Guidelines but an amount they believed was fair. A year later, Melissa Rolley filed a petition to modify child support, claiming she learned after the agreement was entered into that Mark Rolley’s income was much greater than she had previously been told.
At the time of the petition, Melissa Rolley was a student and worked part-time, earning $290 a week. Mark Rolley owned Advanced Network Computer Services in Evansville and made more than $21,000 a week. The trial court granted her petition, ordering Mark Rolley to pay $1,419 a week. The court ordered the modification because the $350 payments were “vastly” less than the amount he owed under the Child Support Guidelines.
Mark Rolley appealed, arguing that his ex-wife invited the error of receiving less child support when she agreed to the terms under the settlement agreement and she was required to show there was a substantial change in circumstances justifying the modification.
The judges examined I.C. 31-16-8-1, which outlines two grounds for modification. Subsection 1 says upon a showing of a change in circumstances so substantial and continuing as to make the terms unreasonable; or under Subsection 2, if the party has been ordered to pay an amount that differs by more than 20 percent from the amount that would be ordered by applying the child support guidelines and the request to be modified was issued at least 12 months before the petition requesting modification was filed.
The judges examined caselaw involving modifications of child support ordered under support agreements and found differing results. Some have held that a petitioner must prove both subsection 1 and 2 in order to have an existing order modified; others have held that a support order based on a support agreement may be modified based on a showing of the grounds listed in subsection 2 alone.
“[D]ifferent panels of this Court have had conflicting interpretations of Indiana Code 31-16-8-1(b)(2), and we would like to draw our Supreme Court’s attention to this conflict for resolution. However, in light of the facts of this case and several general principles guiding issues of child support, we conclude that the Kraft Court’s interpretation is the most appropriate here,” Judge Rudolph Pyle III wrote in Mark Rolley v. Melissa Rolley, 87A01-1307-DR-330.
In Marriage of Kraft, 868 N.E.2d 1181 (Ind. Ct. App. 2007), a panel held that the court should interpret I.C. 31-16-8-1 as it is written, regardless of whether the child support order has been entered through a settlement agreement and whether the agreement to pay child support is in excess of the guidelines. The judges Tuesday noted that the plain language of the statute does not create a distinct standard for modification of child support orders that are a result of agreements.
“The ‘or’ separating subsections (1) and (2) clearly indicates that the two subsections establish separate grounds for modification, and there is not any internal or subsequent language limiting the independence of those subsections,” Pyle wrote.
The judges also noted that the doctrine of invited error may be justifiable in instances when a parent has agreed to pay more than what the parent must pay, but it is not justifiable in instances – such as in the Rolley case – where a parent has agreed to pay less than required.
They upheld the $1,419 in weekly child support, rejecting Mark Rolley’s argument that the trial court abused its discretion by deciding not to consider Melissa Rolley’s mortgage-free house as imputed income. Despite her lack of mortgage, she still must pay other living expenses such as utilities, maintenance and taxes, and she makes only $290 a week, Pyle wrote.