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Hedrick v. Gilbert

Court of Appeals of Indiana

September 9, 2014

ROBERT O. HEDRICK, Appellant-Respondent,
v.
ANGELA R. GILBERT, Appellee-Petitioner

Page 322

APPEAL FROM THE LAWRENCE CIRCUIT COURT. The Honorable Andrea K. McCord, Judge. Cause No. 47C01-0007-DR-713.

ATTORNEYS FOR APPELLANT: ADAM MUELLER, JAMIE WILKINS, Indiana Legal Services, Inc., Indianapolis, Indiana.

BAKER, Judge. KIRSCH, J., and ROBB, J., concur.

OPINION

Page 323

BAKER, Judge

Robert Hedrick appeals from the trial court's order, which: (1) declined to modify Hedrick's original child support agreement with his ex-wife, Angela Gilbert, which provided that they would each bear 50% of the cost of their child's postsecondary educational expenses, (2) found Hedrick in contempt and issued a sanction as a result, and (3) required Hedrick to pay a portion of Gilbert's attorney fees. Gilbert filed a motion to dismiss the appeal, arguing that it was untimely filed. Finding that the appeal was timely filed, that the trial court did not abuse its discretion in denying Hedrick's petition to modify the original child support agreement or in finding Hedrick in contempt for failing to comply with that original order, and that the trial court erroneously entered an attorney fee award against Hedrick, we affirm in part and reverse in part.

FACTS

Hedrick and Gilbert were married in the early 1990s. Their son, B.H., was born on January 19, 1994. On July 24, 2000, Gilbert filed a petition for dissolution of the marriage, and the trial court entered a dissolution decree on December 6, 2000. The decree incorporated a separate " Contract and Agreement," the terms of which had been agreed to by the parties. Among other things, Hedrick agreed to pay child support in the amount of $71.00 per week, and Hedrick and Gilbert each agreed to pay 50% of B.H.'s future college education expenses. Appellant's App. p. 14-15. At some point in 2003, Gilbert filed a petition to modify the agreement, which

Page 324

was granted in part by the trial court on December 2, 2003. In relevant part, the order modified the amount of Hedrick's child support obligation to $81.00 per week.

On August 5, 2011, Hedrick filed a petition to modify his child support obligation[1], and on August 17, 2011, Gilbert also filed a petition to modify. The basis for Hedrick's request was his position that " [t]he gross weekly income of both parents has changed substantially since 2003." Id. at 24. Gilbert requested that either the court enter an order " regarding the payment of college expenses for" B.H., or enter an order that Hedrick's " child support obligation should continue until the minor child completes school." Id. at 29. On October 3, 2011, Gilbert filed a request for attorney fees and a request that the trial court find Hedrick in contempt based on his failure to pay 50% of B.H.'s college expenses as ordered by the trial court in the dissolution decree.

Following an unsuccessful mediation, the trial court held hearings on the petitions to modify on December 20, 2012, February 11, 2013, and August 14, 2013. At the hearings, evidence was presented to the trial court establishing that Hedrick has worked at Burger King for the past twenty-six years as a cook. At the time of the hearings, Hedrick's rate of pay was $9.41 per hour, and his weekly work hours had recently been cut from forty to thirty-two. He lives with his parents in their three-bedroom trailer and helps to care for his elderly mother, who has had two strokes and is bedridden. Hedrick was fully up-to-date on child support at the time it was terminated by the trial court.

Following the divorce, Gilbert remarried. She is a Licensed Practical Nurse, and at the time of the hearing she worked between fifteen and seventeen hours a week, with a base pay of $20.59 per hour. In the past, she worked part-time because B.H. had health issues and her elderly parents needed assistance. At the time of the hearing, those issues had been remedied. She testified that she works part-time for " personal and family reasons." Tr. p. 97. If Gilbert were to find full-time employment with a new employer (her current employer did not have any full-time openings at the time of the hearings), she would likely start at a base rate of pay of $14 per hour. In addition to her work as an LPN, Gilbert owns a landscape business and her husband has full-time employment.

At the time of the first hearing, B.H. had just completed his first semester at Vincennes University. By the time of the final hearing, he had transferred to Ivy Tech Community College. Before attending college, B.H. had full-time employment at General Motors at an hourly rate of $9.63. While attending college, he had applied for work study positions but was on a waiting list and had not successfully obtained employment.

Following the hearings, the trial court entered an order denying Hedrick's motion and granting Gilbert's motions on October 22, 2013. Among other things, the trial court held as follows:

4. MODIFICATION. That Father's Petition for Modification is hereby denied in that there has not been shown a substantial and continuing change in circumstances as required by Indiana Code 31-16-8-1.
5. CONTEMPT. That Father is in contempt due to his failure to pay his portion of the college expenses for the child as previously ordered by this court.

Page 325

That Father shall pay $500.00 of Mother's attorney fees due to said ...


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