Before Mcmillin, P.j., Coleman, And Southwick, JJ.
The opinion of the court was delivered by: Southwick, J.
DATE OF JUDGMENT: 08/21/1997
TRIAL JUDGE: HON. VICKI R. BARNES
COURT FROM WHICH APPEALED: WARREN COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: NO MODIFICATIUON OF CHILD SUPPORT OBLIGATION BUT JUDGMENT FOR APPELLANT OF $1,080.00
DISPOSITION: AFFIRMED - 02/09/1999
MOTION FOR REHEARING FILED:
¶1. Anthony Crist appeals denial of his motion for modification of child support by the Warren County Chancery Court. Error is predicated on the court's holding that $800 per month support was properly classified as child support, that the evidence did not warrant modification of this support, and that Mr. Crist had failed to meet his burden of showing a material change in circumstances on the part of Peggy Crist. Agreeing that the chancellor permitted labels to control over substance, we reverse and remand for additional proceedings.
¶2. The parties were married in 1989. On January 16, 1997, a divorce based on irreconcilable differences was granted. Two daughters were born to the marriage, Mallory and Melody. Mallory has been diagnosed with significant physical disabilities including Arnold-Chiati malformation type I, seizures, an over growth syndrome, and a cleft on her brain known as a ventriculomegaly. Doctors have informed Ms. Crist that the child requires constant attention.
¶3. In the original divorce decree and property settlement agreement, Mr. Crist agreed to child support payments of $800 per month. Neither side submitted income and expense sheets during those proceedings though they were submitted for the contempt and modification trial. Ms. Crist received primary custody of both children and resided in the former marital domicile with them until a few weeks after the divorce when she moved in with the man who is her current husband and sublet the former marital residence. Ms. Crist's current monthly income consists of $800 in child support from her ex-husband, $435.60 in Supplemental Security ...