Mar 22 2013, 8:48 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
RICHARD RANUCCI LOWELL A. SHROYER
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GAIL EISENHUT, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A02-1208-DR-633
)
RICHARD EISENHUT, M.D., )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patrick McCarty, Judge
The Honorable Burnett Caudill, Magistrate
Cause No. 49D03-9308-DR-1383
March 22, 2013
OPINION – FOR PUBLICATION
BARNES, Judge
Case Summary
Gail Eisenhut appeals the trial court’s judgment in favor of her ex-husband,
Richard Eisenhut, in the amount of $19,250. We reverse.
Issue
Gail raises three issues, which we combine and restate as whether the trial court
properly ordered her to pay $19,250 to Richard to reimburse him for child support
payments he made after their daughter turned twenty-one.
Facts
Gail and Richard were divorced in 1995. Their daughter, Brittany, was born in
February 1990. The dissolution decree granted primary custody of Brittany to Gail and
ordered Richard to pay $250 per week, or $1075 per month, in child support, via income
withholding. The decree contained no language as to when Richard’s support obligation
would end. The trial court subsequently issued an order to Richard’s then-employer to
withhold $1075 per month from his pay for child support. Richard’s support obligation
was increased to $1375 per month in 2004. In 2009, Richard changed employers. At that
time, he voluntarily arranged for his support obligation to continue to be withheld from
his pay; there was no court order that required income withholding specifically as to this
employer.
Brittany turned twenty-one in February 2011. At the time, she was attending
Butler University and continuing to live at home with Gail. Although Gail and Richard
had previously informally discussed his contributing to Brittany’s college expenses, Gail
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never obtained an order requiring him to do so. Richard took no action to discontinue
paying support for Brittany until April 27, 2012, when he filed a petition to discontinue
paying support. Although Richard was aware that the $1375 was continuing to be
deducted from his monthly pay and thought that his support obligation should have ended
when Brittany turned twenty-one, he admittedly had “no good reason” for waiting
fourteen months to contact his attorney to see how to go about terminating his support
payments and said that his current wife had cajoled him into doing so. Tr. p. 13. After
Richard filed his petition to discontinue paying support, Gail stipulated that he was
entitled to do so, effective immediately. She also repaid the most recent monthly
payment she had received after the petition was filed to Richard.
Richard’s petition also sought to have Gail repay $19,250 in support she had
received after Brittany turned twenty-one. Gail did not agree to do so. The trial court
conducted a hearing on this issue on June 20, 2012, after which it found that Richard “has
involuntarily overpaid child support” in the amount of $19,250 and entered a judgment
against Gail in that amount. App. p. 14. Gail now appeals.
Analysis
Rulings concerning child support, including matters of overpayment, are
committed to the trial court’s discretion. Beckler v. Hart, 660 N.E.2d 1387, 1389 (Ind.
Ct. App. 1996). An abuse of discretion occurs in a trial court’s ruling if it is clearly
against the logic and effect of the facts and circumstances before the court, or if the court
has misapplied the law. Fackler v. Powell, 923 N.E.2d 973, 980 (Ind. Ct. App. 2010).
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The trial court here entered some limited sua sponte findings with its order. Sua
sponte findings only control issues that they cover, while a general judgment standard
applies to issues upon which there are no findings. Morgal-Heinrich v. Heinrich, 970
N.E.2d 207, 210 (Ind. Ct. App. 2012). We may affirm a general judgment with findings
on any legal theory supported by the evidence. Id. As for any findings that have been
made, they will be set aside only if they are clearly erroneous. Id. A finding is clearly
erroneous if there are no facts in the record to support it, either directly or by inference.
Id.
There is no doubt here that Brittany was emancipated as a matter of law for child
support purposes when she turned twenty-one in February 2011 and that Richard’s legal
obligation to support her ended on that date. See Willard v. Peak, 834 N.E.2d 220, 225
(Ind. Ct. App. 2005) (citing Ind. Code § 31-16-6-6).1 Nor was there a post-secondary
educational support order in place that required Richard to contribute to her college
education despite her emancipation. And, unlike other child support modification
requests, a termination of support based upon emancipation dates back to the actual date
of emancipation, not the date the petition to terminate support was filed. See Hirsch v.
Oliver, 970 N.E.2d 651, 660 (Ind. 2012). The question in this case is whether Gail was
required to reimburse Richard for support payments that continued to be withheld from
1
Effective July 1, 2012, the legislature amended Indiana Code Section 31-16-6-6 to lower the automatic
age of emancipation from twenty-one to nineteen. See Hirsch v. Oliver, 970 N.E.2d 651, 655 n.1 (Ind.
2012).
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his paycheck after Brittany’s emancipation and before he petitioned to terminate his
support obligation.
The well-established rule in Indiana is that overpayments of child support are
generally viewed as voluntary and gratuitous. See, e.g., R.R.F. v. L.L.F., 935 N.E.2d
243, 252 (Ind. Ct. App. 2010). Moreover, and importantly for this case, we have applied
this rule in the context of overpayments made after a child’s automatic emancipation. In
Olson v. Olson, 445 N.E.2d 1386 (Ind. Ct. App. 1983), as here, a father continued paying
child support for a child well after the child had turned twenty-one. Approximately a
year after the child had turned twenty-one, the father filed a petition seeking to credit the
extra year of support he had paid for his emancipated child against a support arrearage he
had accumulated with respect to his other two children. We held the father was entitled
to no such credit. We first noted that the father either could have unilaterally stopped
paying support for that child on his twenty-first birthday, or petitioned the trial court prior
to the twenty-first birthday to stop paying support as of that date, which we described as
“perhaps the wiser course.” Olson, 445 N.E.2d at 1389. We then stated:
Unrequired payments made by a non-custodial parent
for the benefit of children must be considered a gratuity or a
voluntary contribution. They should not be considered a
prepayment of the support obligation. Nor should they be
credited against arrearages due with respect to other children.
It is true that the Father’s unrequired payments here
are easily identifiable and provable. In addition, it may be
observed that the rationale which forbids credit against future
support does not apply here. The purpose of providing
“regular uninterrupted income for the benefit of that parent’s
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children” would not be thwarted. Nevertheless, we recognize
that the parents in intact families often contribute, to the
extent of their ability, to their children’s support even after
their children have reached the age of twenty-one. When the
need exists, such gestures of familial affection, solidarity and
support are to be commended, if not encouraged. Similar acts
involving parent-child in a dissolved marital relationship are
entitled to judicial recognition. This is true because in the
formulation and enforcement of support orders the courts
seek to eliminate or minimize the prejudicial economic
impact of dissolution.
Id. at 1389-90 (citations omitted). It is true that Olson concerned credit against a support
arrearage for other non-emancipated children, which is not the case here. Nonetheless,
whether an arrearage credit or a judgment for support reimbursement is at issue, the
effect on a parent who received the support overpayment as trustee for the child is
effectively the same—he or she is deprived of money already paid by the obligor.2 This
is especially true here, in that Brittany was still living with and dependent upon Gail and
attending college full-time after her automatic emancipation.
The trial court here expressly found that Richard had “involuntarily overpaid”
child support for Brittany’s benefit, thus avoiding the rule regarding such overpayments
being considered gratuitous and not subject to reimbursement. App. p. 14. However,
there is no evidence in the record that would support such a finding and it is clearly
erroneous. This court previously has found overpayments of child support to be
involuntary where an obligor’s tax refund had been intercepted by the Internal Revenue
Service. See Carpenter v. Carpenter, 891 N.E.2d 587, 601 (Ind. Ct. App. 2008); Matson
2
If anything, having a large monetary judgment entered against a parent may be more damaging than a
future reduction in other child support payments.
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v. Matson, 569 N.E.2d 732, 734 (Ind. Ct. App. 1991). We also have found an
involuntary overpayment of child support where it was occasioned by a violation of due
process by a Title IV-D agency. Flowers v. Flowers, 799 N.E.2d 1183, 1192 (Ind. Ct.
App. 2003). In Drwecki v. Drwecki, 782 N.E.2d 440, 447 (Ind. Ct. App. 2003), we
found an involuntary overpayment of support in a situation where the trial court had held
a hearing with the parties before a child’s emancipation and entered an order indicating
that the father’s support amount would be reduced after emancipation (with support
remaining for another child), but the court failed for twenty-five weeks after
emancipation to enter an order fixing the reduced support amount and the father’s
paychecks had been subject to an income withholding order for the higher amount during
that time.
Here, Richard was not compelled to overpay child support because of improper or
erroneous government action, unlike in Carpenter, Matson, or Flowers. Moreover, this
case is unlike Drwecki, where the issue of the child’s emancipation and corresponding
reduction in the father’s support obligation had been noted prior by the trial court prior to
emancipation taking place, but the trial court had erroneously continued father’s support
obligation for twenty-five weeks after emancipation. Rather, there simply was a failure
on the part of Richard to take any action to terminate his support obligation for over a
year after Brittany’s emancipation, which was precisely the scenario in Olson. Richard
testified at the hearing that he had assumed support would automatically stop after
Brittany turned twenty-one, and that he did not know how to terminate his support
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obligation after he noticed that the $1375 was continuing to be withheld from his
paychecks every month. However, Richard’s income was being withheld from his
present employer via his own voluntary wage assignment, not pursuant to a court order,
and there is no evidence he explored the possibility of unilaterally terminating that wage
assignment. Cf. Carpenter, 891 N.E.2d at 600 (noting that eight days after trial court
entered order finding father had repaid support arrearage, father adjusted his voluntary
wage assignment through his employer to reduce the amount withheld for child support).
Nor did Richard seek legal advice from his attorney, who has represented him since 1997
in matters involving Gail and Brittany, until a few days before he filed his petition to
terminate his support obligation. In sum, we believe Richard’s own testimony that he had
“no good reason” for waiting fourteen months to try to terminate his support payments is
conclusive evidence that he voluntarily made those payments while under no compulsion
to do so. Tr. p. 13.
In addition to ordering reimbursement of overpaid child support in cases where the
overpayment was “involuntary,” such reimbursement may be ordered where there is
evidence the obligor made the overpayment as the result of an erroneous belief,
fraudulently induced by the other parent’s misrepresentation of fact, that the amount paid
was necessary to discharge a duty. Gilbert v. Gilbert, 777 N.E.2d 785, 793-94 (Ind. Ct.
App. 2002); Best v. Best, 470 N.E.2d 84, 88 (Ind. Ct. App. 1984). There is no evidence
of any misrepresentation by Gail. Richard clearly was aware of when Brittany’s twenty-
first birthday was. Additionally, the undisputed evidence is that during the entire time
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Richard overpaid child support, Brittany in fact was still entirely dependent upon Gail for
her living expenses while she was living at home and attending college. Thus, Gail was
not pocketing the overpaid child support for her sole benefit.3 Having found the trial
court’s finding that Richard “involuntarily” overpaid child support to be clearly
erroneous and there being no other basis upon which to affirm the trial court, we
conclude it abused its discretion in ordering Gail to reimburse Richard for his overpaid
child support.
Conclusion
We reverse the trial court’s judgment against Gail for $19,250, as there is no
evidence that this overpayment of child support by Richard was anything but voluntary
and gratuitous.
Reversed.
BAKER, J., and RILEY, J., concur.
3
We need not consider whether we might have reached a different result in this case had Gail continued
accepting payments from Richard after Brittany had moved out of the house and/or become self-
sufficient.
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