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McVady v. Pickett-McVady

Court of Appeals of Indiana

February 21, 2014

PATRICK M. McVADY, Appellant-Respondent,
v.
REBECKA R. PICKETT-McVADY, Appellee-Petitioner

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE WHITE CIRCUIT COURT. The Honorable Benjamin A. Diener, Special Judge. Cause No. 91C01-0707-DR-82.

ATTORNEY FOR APPELLANT: LUCILLE P. UTTERMOHLEN, Monticello, Indiana.

BAKER, Judge. NAJAM, J., and CRONE, J., concur.

OPINION

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAKER, Judge

Appellant-respondent Patrick McVady (Husband) asks this Court to reverse the trial court's determination denying his request to modify his court-ordered life insurance payments and reduce his child support payments. More particularly, he argues that the trial court erred when it determined that the life insurance policy was an element of the parties' property settlement and therefore was not subject to modification. Additionally, Husband contends that the trial court applied the incorrect legal standard when it refused to reduce his child support payments. Concluding that the law was correctly applied and finding no other error, we affirm the decision of the trial court.

FACTS

On March 18, 2010, Patrick McVady's marriage to Rebecka Pickett-McVady (Wife) was dissolved. In the parties' decree of dissolution, Husband agreed to maintain a life insurance policy in the amount of $1,000,000. The beneficiary of the policy was Wife as trustee for the benefit of the parties' two minor children. By agreement of the parties, Husband's child support obligation was set at $275 a week, an amount higher than the amount recommended by the child support guidelines. Husband had previously owned Tristar Transportation, but closed that business on or about June 2009; Husband drew unemployment from Tristar Transportation from about October 2009 for a period of two years, receiving between $18,000 and $20,000 per year in unemployment benefits. Husband testified that, at the time he agreed to the $275 child support payment, he had approximately $250,000 in a bank account.

On February 21, 2013, Husband filed a motion to modify the dissolution decree, and on June 20, 2013, the trial court held a hearing on the motion. At the hearing, Husband testified that on July 8, 2013, he would begin employment with Loaded N Gone, and would be paid $800 per week. He also testified that, because his savings had diminished, he could no longer afford to pay the premiums on the life insurance policy or the $275 weekly child support payment. Wife testified that she is unemployed and could not leave her children alone for long periods of time, as her daughter has physical disabilities due to an automobile accident and her son has mild autism.

Husband argued that his circumstances have changed in such a way that a reduction of his child support was warranted. Husband interpreted Indiana Code section 31-16-8-1 to provide for two different circumstances in which child support could be modified: 1) a showing of changed circumstances so substantial and continuing as to make the terms unreasonable under Indiana Code section 31-16-8-1 (b)(1), or 2) if a party was ordered to pay an amount that differed from the child support guidelines by more than twenty percent, and the order the party requested to be modified was ordered at least twelve months previously under Indiana Code section 31-16-8-1(b)(2). In keeping with this interpretation, Husband argued that, even if the trial court did not find a substantial change in circumstances, it should reduce his child support payments because the order he sought to modify was more than one year old and deviated from the child support guidelines by more than twenty percent.

At the hearing on the motion, the trial court determined that it would not hear any evidence concerning the life insurance policy. It determined that the policy was part of the property agreement between Husband and Wife, and as such, could not be modified by the court. After taking the issue of child support under advisement, the trial court determined that " aside from an unquantifiable diminution, based on the evidence presented, of his savings, Former Husband's circumstances on the date he filed his Motion were similar or identical to when the matters of custody and support were determined." Appellant's App. p. 10. The trial court found that Husband had not shown a substantial and continuing change in circumstances, and stated that, in order to modify his child support agreement, he must show a substantial change in circumstances regardless of whether ...


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