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Elwood v. Parker

Court of Appeals of Indiana

May 30, 2017

Derek H. Elwood, Appellant-Respondent,
Wendy A. Parker, Appellee-Petitioner

         Appeal from the LaPorte Superior Court The Honorable Michael S. Bergerson, Judge Trial Court Cause No. 46D01-9502-DR-62

          ATTORNEYS FOR APPELLANT Bryan L. Ciyou Julie C. Dixon Darlene R. Seymour Ciyou & Dixon, P.C. Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Elizabeth A. Flynn Kurt R. Earnst Braje, Nelson & Janes, LLP Michigan City, Indiana

          MATHIAS, JUDGE.

         [¶1] Wendy Parker ("Parker") sought arrears of child support owed by Derek Elwood ("Elwood"), Parker's ex-husband and father of her two daughters, since 1995. LaPorte Superior Court ordered Elwood to pay more than $150, 000 in support arrears plus interest and attorneys' fees. From this order, Elwood now appeals.

         [¶2] We affirm.

         Facts and Procedural Posture

         [¶3] Parker is a dentist in Michigan City, Indiana. Elwood is an insurance agent in Oshkosh, Wisconsin. Parker and Elwood were married for a short time in the 1990s when they both lived in Michigan City. During their marriage, they had two children: J., their elder daughter, and E., their younger daughter. Elwood and Parker divorced in 1995 soon after E. was born. LaPorte Superior Court gave Parker custody of the two girls and ordered Elwood to pay support in the amount of $169.62 per week. Elwood moved in with his parents, who lived in Michigan City. He made fewer than four months' payments totaling $2, 056.96 and then disappeared. Elwood never made another payment.

         [¶4] Elwood joined the military and moved to Texas for basic training but left the military after seven months and continued to live in Texas. He then moved to Wyoming, then to Illinois, and finally to Wisconsin, where he settled. Elwood started a business, remarried, and had two daughters with his new wife. During these years, Elwood never told Parker (or LaPorte Superior Court) where he was or where he was going, though he did tell his parents. Elwood never contacted Parker or their daughters at all, and has no relationship with them. He never sought parenting time, a modification of the support order, or any other judicial remedy. Elwood's sole concession to his former life was to pay nominal amounts in annual support fees when notice of these was received by his parents in 2003, 2005, and 2007. See Ind. Code § 33-37-5-6 (requiring child support obligors to pay annual support fee).

         [¶5] This was all fine by Parker, who never sought Elwood's involvement in their daughters' lives, and in fact, as the trial court found, "actively sought to avoid [his] involvement . . . ." Appellant's App. p. 9. About a year after the divorce, Parker petitioned to have the girls take her last name, serving Elwood notice by publication in a local newspaper though Elwood's last known address was at his parents' house. The girls had no relationship with their paternal grandparents and were not even aware who their genetic father was until they were teenagers. In 2012, when Parker sought a guardianship over eighteen-year-old J. for medical reasons, Elwood's name was not listed on the Parker's petition as a "person[] mostly closely related by blood or marriage" to J. Tr. p. 58. In 2013, Parker had E. emancipated and again served Elwood by publication. However, in 2015, when Parker sought the instant determination of support arrears, Parker served Elwood personally by certified mail.

         [¶6] For twelve years during J.'s and E.'s minority, Parker was in a relationship with Kelly Newcomb ("Newcomb"). Parker and Newcomb were married for six years but then divorced. During Parker and Newcomb's relationship, the girls thought of Newcomb as their father and referred to him that way. Newcomb supported and cared for the girls as a "partner" and step-father would. Tr. p. 133. Even after Parker and Newcomb were divorced, Newcomb carried the girls on his health insurance, and J. and E. remain close to him, though he now lives in Florida. Newcomb was aware of Elwood's outstanding obligations to J. and E. and never pushed Parker to enforce them, but Newcomb never expected or intended that his support would relieve Elwood of them.

         [¶7] On November 13, 2015, two years after E.'s emancipation and twenty years after Parker and Elwood's divorce, Parker filed a motion in LaPorte Superior Court to determine Elwood's support arrears. Elwood responded and petitioned the court to terminate or modify his support obligation. After briefing and argument at a hearing on May 13, 2016, the court issued findings of fact, conclusions of law, and an order on August 3, 2016. Elwood was ordered to pay

$157, 555.46 in past due support[, $169.62 per week from the date of the divorce to the date of E's emancipation, minus payments already made by Elwood, ] plus interest from [the date of filing of Parker's motion] at 11/2% per month in the amount of $20, 434.72, plus interest accruing from the date of this order at the statutory rate of 8% per annum. [Elwood] should also be responsible for ...

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