By Darryn L. Duchon, Attorney, Mediator & Parenting Coordinator
The Court of Appeals issued the opinion, Himes v. Himes, 57 N.E.3d 820 in June of 2016. This case includes a footnote that is of interest to mediators.
Indiana’s policy is to encourage parents to settle their own affairs. Reno v. Haler, 734 N.E.2d 1095, 1100 (Ind. Ct. App. 2000), trans. denied. We have previously pointed out that a child support order and an educational support order are separate and distinct because an educational support order can be terminated if a child repudiates a parent. Lovold v. Ellis, 998 N.E.2d 1144, 1152 (Ind. Ct. App. 2013). We do not have that here. What we do have here are two parents that properly executed a mediated agreement, which stated that they both gave up any “right to revoke their signature or the effectiveness of this Mediated Agreement.” (App. 16). There is no evidence in the record of fraud, duress, misrepresentation, or manifest inequities. See Pond. v. Pond, 700 N.E.2d 1130, 1136 (Ind. 1998). As a result, even if there was evidence to support a modification, it is likely that the trial court would still have been bound to enforce the terms of the parties’ Mediated Agreement. However, we do not reach that conclusion today.
In this case, the parties entered into a mediated agreement which provided for an allocation of college expenses between the child and the parents. The mediated agreement stated that both parties acknowledged that they entered into the mediation agreement knowing that once signed they had no right to revoke their signature or effectiveness of the mediated agreement. The children went to college and Father failed to pay his share. A contempt was filed and at that hearing the court ordered Father to pay an arrearage specifically by check or certified funds. Father failed to comply with that order and went forward with filing a petition to modify and requested that the children be allowed to intervene in the case and to terminate the education orders. The children joined in with the petition and certified that they had a good relationship with their father and no longer needed any intervention in their relationship with their Father and they signed affidavits. Mother responded with an objection and filed a contempt due to Father’s noncompliance with the prior contempt order. Father filed for a change of judge and a new judge was appointed. The trial court allowed the children to intervene, allowed the children to pursue any arrearage, terminated the education expense order, failed to find Father in contempt, failed to award attorney’s fees and provided that Mother’s overpayment of education expenses was a gift. It appears that the children had borrowed significant additional funds in excess of their share of obligation under the court order. Their tuition bills were paid, however, they incurred significant student loans in excess of their court ordered obligation.
Mother appealed and the trial court was reversed in part. The Court of Appeals found it was fine for the children to be able to pursue any arrearage because they were the ones who had borrowed the money and are owed the money back. The Court of Appeals reversed the termination of the education order finding there was no change of circumstances presented and the current order should remain in place. The situation regarding the children, their obligations and the parents’ income had not changed. The footnote alludes that because the agreement says that they gave up the right to revoke their signature or effectiveness of the agreement, they gave up the right to modify the agreement even if there had been a change of circumstances.
A simple and typical interpretation of the language could mean that the parties have a binding mediated agreement that is to be submitted to the court and they cannot change their mind before the court approves it, but in no way prevents a future modification. This comment is just a footnote and it does say at the end of the footnote “we do not reach that conclusion today” on the stated interpretation of the verbiage.
The Court of Appeals reversed the trial court as well regarding the finding of contempt and found that Father should be found in contempt. Since there was not a previous finding of contempt by the trial court the Court of Appeals remanded to the trial court to determine the award of attorney’s fees to Mother and sanctions in excess of the award of attorney’s fees. The Court of Appeals also pointed out that it was an error for the children to be allowed to intervene in this case as they failed to comply with the specific trial rules regarding intervention and failed to appear in court when they were subpoenaed.
While confusing, the Court of Appeals’ footnote states that even if there was evidence to support a modification, the trial court would have been bound to enforce the terms of the parties’ Mediated Agreement because they used the standard boilerplate language precluding the right to revoke their signature or effectiveness of the Mediated Agreement. The boilerplate that was used in their agreement appears to be what is utilized by attorneys to prevent somebody from backing out of the mediated agreement before it is approved by the court. It appears to be an expansive interpretation of the language that it prevents a modification. In addition, on a family law child related matter it is arguable that the parties could not even reach an agreement that would not allow for a future modification. Confusingly the Court of Appeals’ footnote states that they “do not reach that conclusion today.” Because they are not reaching that conclusion, I am not sure why they felt it necessary to include the footnote that such language could possibly preclude a modification. Perhaps, in the future, attorneys using such language should clarify the boilerplate to not preclude a future modification.
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