Opinion
Court of Appeals Case No. 20A-JP-1594
03-11-2021
C.C. (Mother), Appellant-Petitioner, v. F.W. (Father), Appellee-Respondent.
MEMORANDUM DECISION
Case Summary
[1] In 2013, the trial court entered an order wherein it emancipated V.D. ("the Child") and terminated an income withholding order regarding F.W. ("Father"). C.C. ("Mother") continued to receive child support payments for the Child for 371 weeks after the trial court terminated Father's income withholding order. Mother appeals from the trial court's entry of a personal judgment in the amount of $37,100.00 against her and in favor of Father. We find the trial court did not abuse its discretion in finding that Father's child support payments were involuntary and, therefore, not gratuitous. Moreover, Mother invites us to reweigh evidence and reassess the credibility of witnesses, which we cannot do. For these reasons, we affirm.
Issue
[2] Mother raises two issues, which we consolidate and restate as follows: whether the trial court abused its discretion in entering a personal judgment against Mother and in favor of Father in the amount of $37,100.00, for post-emancipation child support overpayments made by Father pursuant to an income withholding order.
Facts
[3] Mother and Father are the parents of the Child, who was born on December 1, 1987. Paternity of the Child was established on July 25, 1988, and Father was ordered to pay child support in the amount of $35.00 per week. Mother and Father have litigated various issues related to the Child, including interference with parenting time and payment of child support. Following a modification of child support in July 1998, Father's weekly obligation was increased to $75.00; thereafter, Father's weekly obligation again increased to $100.00. By court order, Father's payments were made through his wage withholding.
The record is silent regarding when Father's weekly obligation increased to $100.00; however, Mother and Father agree that Father paid $100.00 weekly during the relevant period.
[4] On December 1, 2006, the Child reached nineteen years of age. On June 24, 2013, when the Child was twenty-five years old, Mother filed a verified petition to terminate child support wherein Mother stated that the Child was emancipated and stated the reasons for emancipation as follows: (1) the Child "has turned nineteen years of age"; and (2) the Child "is not under the care or control of either parent or an individual or agency approved by the court[.]" See Mother's App. Vol. II p. 94.
At the time of this filing, the Child was nearly twenty-six years old.
[5] On June 26, 2013, without first conducting a hearing, the trial court entered its "Order Granting Termination of Income Withholding Order Due to Emancipation of Child(ren)" ("IWO vacation order"), wherein the court found the Child was emancipated and vacated Father's income withholding order as it pertained to then-current support. The order stated:
Father owed no arrearage.
... [T]he child support obligation should be terminated because of the emancipation of the minor child(ren.... IT IS THEREFORE ORDERED that any Income withholding Order previously issued in this case is hereby vacated, with regard to current support, not arrears. The Clerk is instructed to inform the Employer of this Order.
Id. at 96. The trial court's order did not indicate the date as of which the Child was deemed emancipated and did not determine the amount of any arrears. On or about that same date, the trial court mailed the IWO termination order to the parties’ respective addresses. The record does not reflect that the clerk of the court sent the order terminating the income withholder order to Father's employer as the court instructed. Father denies receiving the order; however, Mother received the order.
[6] Mother and Father agree that Father's wages continued to be withheld pursuant to the incoming withholding order in the weekly amount of $100.00 after June 26, 2013. On May 21, 2020, Father filed a verified petition for emancipation, wherein he argued that the trial court should: (1) order the Child emancipated as of her nineteenth birthday, or December 1, 2006; (2) terminate his support obligation retroactive to that date; and (3) order Mother to reimburse Father for his overpayments. On May 29, 2020, the trial court scheduled a hearing on Father's verified petition for emancipation and ordered the clerk of the court to hold any child support payments made by Father in an account, with instructions not to distribute the monies until further order of the court.
Effective July 1, 2012, the legislature amended Indiana Code § 31-16-6-6, which "change[d] the presumptive age for termination of child support from twenty-one to nineteen[.]" During the hearing, the trial court advised counsel for Father that, at the time the initial child support order was entered in 1988, the duty to support a child ceased at age twenty-one. Counsel for Father agreed. See Tr. Vol. II p. 14.
[7] On August 7, 2020, the trial court conducted a hearing on Father's petition for emancipation of the Child, who was then thirty-two years old. At the hearing, the trial court took judicial notice that the Child was emancipated on June 26, 2013. Father testified that he: (1) did not receive the trial court's IWO termination order in 2013; (2) was not otherwise notified that his "[child support obligation] was stopped[,]" Tr. Vol. II p. 12; and (3) has consistently paid child support since 1988. When Mother asked Father why he failed to have his child support payments stopped, Father responded as follows:
The trial was conducted via teleconference.
I have been going back and forth down [to the Child Support office] for several years and I have been getting a run around. I think I went down there in oh-seven (2007), thirteen (2013), and they [we]re telling me that I need to get a lawyer or something in order to get it to stop. The agreement that [Mother and I] had was that [the Child] would receive the money—
* * * * *
And so basically, I am really just now getting to the point to where I can afford a lawyer and my thoughts is [sic] that the money was going to help my daughter.
Id. at 11.
[8] After Father's testimony, Mother, pro se, testified as follows: (1) she received the trial court's IWO termination order; (2) "[Mother] call[ed] the child support office asking them how to stop the garnishment" and learned "the only way to stop [the garnishment was] for [Father] to take the order to [his] job[,]" id. at 16; (3) Father failed to stop his wage withholding; (4) Mother prevented Father's child support payments from being directly deposited into her bank account; however, the Title IV-D office resorted to mailing the payments to Mother; (5) she has asked Father "over the years why he has not stopped [the payments,]" id. at 11; (6) she and Father agreed that Father's payments would go to the Child; (7) she gave money to the Child until "[the Child] stopped doing what [the Child] was supposed to be doing[,]" id. at 16; and (8) she did not return any of Father's payments.
At the outset of the hearing, the trial court offered Mother the opportunity to obtain a continuance of the hearing "so that [Mother] c[ould] consult with and perhaps hire a lawyer for this matter?" Tr. Vol. II p. 7. Mother declined.
[9] During the hearing, the trial court verified that the IWO termination order was entered on June 26, 2013, when the Child was twenty-five years old and stated: "... [I]f child support has continued to come out then it has just been an oversight on someone's part." Id. at 15. At the close of the testimony, the following colloquy ensued between Mother and the trial court before the court entered judgment:
[Mother]: If I could not get [Father] to call me back and I could not even get [the payments] to stop-I even stopped the direct deposit and all they did was send me a check. Why would I owe [Father] anything when all [Father] had to do was turn the paperwork in to his job?
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THE COURT: I cannot answer what [Father] did or did not do, could or could not do but here is what we do know. And the court is going to make a finding that there was an order for child support in the amount of one hundred dollars ($100) per week—
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That [Father] paid consistently for—
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three hundred and seventy-one (371) weeks after the child support order was terminated—
* * * * *
on June the twenty-sixth of twenty-thirteen (June 26, 2013). That over the course of that time [Mother] received the payments and never returned any to [Father]. That [Father] was entitled to have had his child support payments stopped as of ... June 25, 2013[ ]. At that point [Father] would have been paying at least four (4) years too much but that at no time were any of his funds to which [Mother] and or [the Child] were not entitled ever returned to [Father].
And so, for that reason the court will make a finding and enter a judgement [sic] in favor of [Father] and against [Mother], for the full amount of thirty-seven thousand one hundred dollars ($37,100). That is the overpayment that [Father] has made and that will be the court's finding and the court's order. Now, [counsel for Father], I am going to reduce that to judgement [sic] at your request and so then you will need to proceed through superior court ... [on] any sort of collection efforts that you may have to make on [Father]’s behalf unless you and [Mother] can come to some agreement.
But here is the thing that I would just say in closing this hearing. I understand what you are saying, [Mother], and I applaud you for ... try[ing] to get this stopped and to do the right thing. The only other step that you could have and should have taken was this. Either mail back to [F]ather the payments that were being made and if you had no address[,] your only other alternative was to then place every penny into a bank account so that when this day came you would be able to reimburse [Father] in full in a lump sum.... But here is what I would let you know, [Mother]. That because this matter is being reduced to judgement [sic] ... interest can accrue ... at the prevailing [statutory] rate ....
These asterisks and those that follow reflect Mother's inaudible comments during the trial court's remarks.
Id. at 23-24. On August 10, 2020, the trial court entered its emancipation and termination of income withholding order and imposed a personal judgment of $37,100.00 against Mother and in favor of Father. Mother now appeals.
The appealed order provides that: (1) Father owed no arrearage and consistently paid weekly child support in the amount of $100.00; (2) Father overpaid child support over the four-year period following the entry of the IWO termination order; (3) Mother failed to return the monies to Father; (4) Father is entitled to a personal judgment against Mother in the amount of $37,100.00; and (5) any existing IWO is terminated or vacated.
Analysis
[10] Mother asserts that the trial court abused its discretion in entering the $37,100.00 personal judgment in favor of Father and against her. There is a well-established preference in Indiana "for granting latitude and deference to our trial judges in family law matters." Steele-Giri v. Steele , 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993) ); see Eisenhut v. Eisenhut , 994 N.E.2d 274, 275-76 (Ind. Ct. App. 2013) ("Rulings concerning child support, including matters of overpayment, are committed to the trial court's discretion.").
[11] Appellate courts "are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence." Steele-Giri , 51 N.E.3d at 124 (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) ). "Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment." Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (citations omitted). We will not substitute our judgment for that of the trial court. Bush v. Mapletoft , 137 N.E.3d 918 (Ind. 2019). On appeal, it is not enough that the evidence might have supported a different conclusion; to reverse the trial court, the evidence must lead to but one conclusion. Steele-Giri , 51 N.E.3d at 124.
[12] Father has not submitted an appellee's brief. In such instances, "[this] court need not develop an argument for the appellees but instead will ‘reverse the trial court's judgment if the appellant's brief presents a case of prima facie error.’ " Salyer v. Washington Regular Baptist Church Cemetery , 141 N.E.3d 384, 386 (Ind. 2020) (quoting Front Row Motors, LLC v. Jones , 5 N.E.3d 753, 758 (Ind. 2014)). "Prima facie error in this context means ‘at first sight, on first appearance, or on the face of it.’ " Id. This less stringent standard of review relieves us of the burden of controverting arguments advanced in favor of reversal where that burden properly rests with the appellee. See, e.g., Jenkins v. Jenkins , 17 N.E.3d 350, 352 (Ind. Ct. App. 2014). We are obligated, however, to correctly apply the law to the facts in the record to determine whether reversal is required. Id.
[13] This case involves oversights by the trial court and the clerk of the court that resulted in an income withholding order that continued even though it should have terminated as of June 26, 2013. For whatever reason, the trial court did not conduct the scheduled hearing on Mother's verified petition for terminate child support. Instead, the trial court issued an order that failed to: (1) state the date of emancipation; and (2) determine whether an arrearage existed, and if so, the amount. The record does not reflect that the clerk of the court mailed the IWO termination order to Father's employer as the court instructed.
I. Laches
[14] Mother argues Father failed "to take any action to effectuate the [IWO] termination order ... despite reminders by Mother[ ] and the continuous garnishment from his wages." Mother's Br. p.15. We regard this argument as a laches claim. Laches is an equitable defense that may be raised to stop a person from asserting a claim that he would normally be entitled to assert. Ind. Real Estate Comm'n v. Ackman , 766 N.E.2d 1269, 1273 (Ind. Ct. App. 2002). Generally, laches does not apply to child support cases; however, this rule is based on the rationale that "Indiana courts will not penalize a child for his or her parent's delay in pursuing child support." Carpenter v. Carpenter , 891 N.E.2d 587, 598 n.8 (Ind. Ct. App. 2008). This rationale does not apply to situations where a parent seeks credit or reimbursement for overpayment of child support. Id. Therefore, in the proper case, laches can serve to bar a parent from receiving credit for overpayment of child support.
[15] Under the doctrine of laches, a person who—for an unreasonable length of time—has neglected to assert a claim against another, waives the right to assert the claim when this delay prejudices the person against whom he would assert it. Laches requires: (1) inexcusable delay in asserting a known right; (2) an implied waiver arising from knowing acquiescence in existing conditions; and (3) a change in circumstances causing prejudice to the adverse party. SMDfund, Inc. v. Fort Wayne-Allen Cnty. Airport Auth. , 831 N.E.2d 725, 729 (Ind. 2005), cert denied, 546 U.S. 1093, 126 S. Ct. 1051 (2006).
[16] Although Mother's testimony supplies support for the first two elements of laches, we find that her claim fails on the prejudice prong. For at least four years, Mother received child support payments to which she was not entitled. An emancipation order was entered when the child was already twenty-five years old, and the parties acknowledged that Father did not have an arrearage due after 2013. Although Mother gave an unspecified portion of the payments to the Child, the record reveals Mother stopped giving the payments to the Child because the Child was not conducting herself as the Mother wished. The record does not indicate when the Mother gave payments to the Child – whether it was before or after 2013. After 2013, Mother continued to receive the child support payments. With the obvious exception of an unwelcome, but foreseeable money judgment against Mother, we do not find that she suffered prejudice here. To the contrary, we find that allowing Mother to keep the overpayments would result in a windfall to Mother. Mother's laches arguments fails, and Father is not estopped from bringing his claim.
II. Unjust Enrichment
[17] Next, Mother argues that the trial court's order for Mother to reimburse Father results in Father's unjust enrichment to Mother's detriment. Mother argues that Father benefited from the parties’ "agreement[,]" wherein Father continued to make post-emancipation child support payments and Mother facilitated the delivery of said support to the Child. See Mother's Br. p. 20 ("Father benefited from the terms of the contract as he was able to continue to be financially supportive of the parties’ adult daughter while Mother facilitated the arrangement. Father would be unjustly enriched by the trial court's order which would allow him to maintain the benefits of the parties’ arrangement, but would allow for the return of the offer, to Mother's detriment."). Missing from the evidence, however, is when, and to what extent, Mother allegedly forwarded the child support payments to the Child.
[18] To prevail on a claim for unjust enrichment, a plaintiff must establish that a measurable benefit has been conferred on the defendant under such circumstances that the defendant's retention of the benefit without payment would be unjust. Zoeller v. E. Chicago Second Century, Inc. , 904 N.E.2d 213, 220 (Ind. 2009) (citations omitted). Principles of equity prohibit unjust enrichment of a party who accepts the unrequested benefits another provides despite having the opportunity to decline those benefits. Fowler v. Perry , 830 N.E.2d 97, 103 (Ind. Ct. App. 2005).
[19] Mother's argument, in fact, works against Mother. Mother is the party that accepted unrequested payments and had the ability to decline the child support payments. Additionally, Mother testified that she unilaterally ceased forwarding the child support monies to the Child and never returned any of the monies to Father. To the extent that Mother delivered the child support payments to the Child, it was Mother's burden to present the trial court with evidence of the dates and the amounts thereof; however, Mother failed to do so. See In re B.W. , 908 N.E.2d 586 (Ind. 2009) (stating that a party proceeding pro se is held to the same standard as a licensed attorney). Based on the record before us on appeal, we find that it would, indeed, work an "unjust enrichment" and a windfall to Mother to allow her to benefit financially. Mother's unjust enrichment claim fails.
III. Voluntary Overpayments
[20] Lastly, Mother argues that: (1) regarding overpayments made prior to May 21, 2020, "Father knowingly, voluntarily, gratuitously, and generously continued" to pay child support "pursuant to [the parties’ agreement]" that Father "would continue paying [ ] Mother so that she could pay the support to the [Child] or on [the Child's] behalf[,]" Mother's Br. p. 11; and (2) Mother relayed Father's overpayments to the Child. We decline Mother's invitation to reweigh the evidence.
Mother concedes that Father is entitled to reimbursement of monies paid to Mother after May 21, 2020.
[21] "The well-established rule in Indiana is that overpayments of child support are generally viewed as voluntary and gratuitous." Eisenhut , 994 N.E.2d at 276-77.
Voluntary overpayments of child support are "properly treated as [gratuities] to the children and no credit is granted."
However, this rule "does not fully apply ... where [a parent] did not voluntarily build up a substantial credit." Therefore, where an overpayment is not voluntary, the amount may be credited to future child support payments.
Carpenter , 891 N.E.2d 587, 600-01 (Ind. Ct. App. 2008) (internal citations and footnote omitted).
[22] Among the issues in Carpenter was the father's request to be credited for his overpayment of his arrearage. Pursuant to an order of the trial court, the father's tax refunds were withheld to pay the arrearage. Whether due to the tax intercepts or the father's continued wage withholding, the father overpaid his arrearage and petitioned the trial court to credit him for the overpayment. The trial court found that, despite the father's knowledge that his tax refunds were applied to the arrearage and subsequent notice that the arrearage was paid in full, the father failed to act to terminate the wage withholding or to petition the court for relief for over a year. The trial court concluded that the father's overpayment was voluntary and denied the father credit for the overpayment.
[23] On appeal, this Court rejected two of the trial court's findings as follows: first, we found that "[the f]ather's decision to pay child support via wage withholding" was involuntary. Id. at 600 (quoting Ind. Code § 13-16-15-0.5(a): absent a showing of extraordinary circumstances, "the law shall order that child support payments be immediately withheld from the income of the obligor"). Second, we found that the father took some action to ensure that he did not overpay. As a result, we reversed the corresponding part of the trial court's order. Further, regarding the general rule that voluntary overpayments of child support are properly deemed to be gratuities for which no credit is granted, this Court found the general rule was inapplicable where the overpayment was involuntarily made; and that a credit for the overpaid amount is permissible under those circumstances. The Carpenter Court, thus, found that payments, made pursuant to wage assignments and tax intercepts and that clearly conform to the parties’ agreement and court orders are not voluntary. Id. at 601.
[24] Under the highly unusual circumstances of this case, in which: (1) the Child was twenty-five years old when the trial court entered its initial emancipation order; (2) the Child was thirty-two years old at the time of the hearing on the petition at issue; (3) Father owed no arrearage; and (4) Father overpaid his child support obligation via income withholding by 371 weeks, the remedy of a credit to be applied to future child support payments was not a viable option. The trial court considered Mother's and Father's conflicting testimony regarding Father's receipt of the income withholding termination order, emancipating the Child and terminating Father's income withholding for current support, and resolved the conflicts in Father's favor. See Best, 941 N.E.2d at 502 (providing that assessing witness credibility is the province of the trial court and that appellate courts are not permitted to reassess the same).
[25] This is an unfortunate case in which the trial court erred by failing to effectuate the termination of the income withholding order; Father failed to act; and Mother cashed payments that she knew did not belong to her. These facts culminated in an overpayment of child support. The trial court exercised its discretion, and we cannot say that the court abused its discretion under the circumstances. The fact that another judge might rule differently is not the standard of review we employ.
Conclusion
[26] The doctrine of laches does not operate to preclude Father's claim for reimbursement of his overpaid child support. Mother's unjust enrichment claim is unavailing. The trial court did not abuse its discretion in ordering Mother to reimburse Father for his involuntary child support overpayments. We affirm.
[27] Affirmed.
Bailey, J., concurs.
Robb, J., dissents with opinion.
Robb, Judge, dissenting.
[28] I respectfully dissent.
[29] I believe the doctrine of laches bars Father from seeking reimbursement. Although the majority correctly outlines the three elements of laches, our supreme court has also stated, "Despite this structured test, there is no fixed or definite rule for the application of the doctrine of laches." Richmond State Hosp. v. Brattain, 961 N.E.2d 1010, 1012 (Ind. 2012) (internal quotation omitted). Here, the record reveals that Father knew Mother filed a petition to terminate child support payments in June 2013 as evidenced by his signature on the certificate of service and the fact that he was present when Mother completed the paperwork. And the fact that Father had been repeatedly informed by Mother that he needed to provide the paperwork to his employer tends to establish that he also knew the petition had been granted. However, although Father claimed and the trial court found that he never received the June 26, 2013 order terminating the income withholding order, he clearly knew his daughter's age and that the payments continued to be withheld long after she was of age. He stated that he went to the child support office and was told he needed a lawyer. He also acknowledged that "[t]he agreement that [he and Mother] had was that [his] daughter would receive the money" and it would help her. Tr., Vol. II at 11. Nonetheless, Father waited nearly seven years, until his daughter was thirty-two years old, to file a petition to terminate the garnishment when he could have taken the original order to his employer in 2013. This constitutes an inexcusable delay and an implied waiver as Father clearly knew the money continued to be withheld and provided to Mother for Child's benefit.
[30] The majority concludes that Mother is able to prove the first two elements of laches but has failed to establish prejudice. Specifically, it states, "With the obvious exception of an unwelcome, but foreseeable money judgment against Mother, we do not find that she suffered prejudice here." Slip op. at ¶ 16. I believe there is no question Father's seven-year delay prejudiced Mother. "The required prejudice may be created ‘if a party, with knowledge of the relevant facts, permits the passing of time to work a change of circumstances by the other party[.]’ " SMDfund, Inc. v, Fort Wayne-Allen Cnty. Airport Auth. , 831 N.E.2d 725, 731 (Ind. 2005), cert. denied , 546 U.S. 1093 (2006). In such case, laches may bar the claims. Id.
[31] Mother reached out to Father over the years informing him of the steps he needed to take to stop the payments and even attempted to stop them herself. Father was aware that the payments continued but failed to take any steps to stop the payments. And there is no evidence that Father asked Mother to return the money or that Mother believed she would have to pay him back. Instead, Father suddenly wanted to terminate the payments and seek reimbursement after he had already paid Mother $37,100 over a seven-year period.
[32] As I conclude below, I believe Father's overpayments were voluntary. Mother and Father agreed the payments would go to Child. Mother provided these payments to Child until Child "stopped doing what she was supposed to be doing." Tr., Vol. II at 16. Mother then continued to receive payments from Father, intended for Child, but withheld those payments from Child and kept them for herself. Instead, Mother would be harmed financially. In my view, there is no question that requiring Mother to reimburse Father $37,100, an enormous amount of money, after her repeated attempts urging him to take action to terminate the payments, action she was unable to take herself, and his failure to take steps to do so, constitutes prejudice under these circumstances. Accordingly, I disagree with the majority and believe the doctrine of laches applies to bar Father from seeking reimbursement of the overpaid child support.
[33] Even if laches did not bar Father from seeking reimbursement, I believe Father still would not be entitled to reimbursement as the same facts outlined above also demonstrate that his payments were voluntary. The majority's position is that Father's payments were involuntary because his payments were made pursuant to an income withholding order ("IWO"). I disagree.
[34] It is well-established that overpayments of child support are generally viewed as voluntary and gratuitous. Eisenhut , 994 N.E.2d at 276. And this court has previously found overpayments of child support to be involuntary and not gratuitous where the overpayment was due to an obligor's tax refund being intercepted by the Internal Revenue Service, Matson v. Matson , 569 N.E.2d 732, 734 (Ind. Ct. App. 2003) ; where the obligor's due process rights were violated by the Title IV-D prosecutor's obtaining an income withholding order without a hearing and without providing proper notice of its intent to obtain such order, Flowers v. Flowers , 799 N.E.2d 1183, 1193-94 (Ind. Ct. App. 2003) ; and where the overpayments occurred during a time when a court order required the obligor to pay a greater amount and when that greater amount was being deducted from his paycheck by an income withholding order, Drwecki v. Drwecki , 782 N.E.2d 440, 446-47 (Ind. Ct. App. 2003).
[35] However, these scenarios are distinguishable from the case before us. Father clearly knew when Child turned twenty-one and therefore became emancipated as a matter of law. See Ind. Code § 31-16-6-6 (1997). And his overpayments were neither the result of "improper or erroneous government action" nor the result of an "erroneous belief, fraudulently induced by [Mother's] misrepresentation of fact, that the amount paid was necessary to discharge a duty." Eisenhut , 994 N.E.2d at 277-78.
[36] The majority's reliance on Carpenter , 891 N.E.2d at 596-603, is misplaced. It concludes, "The Carpenter Court, thus, found that payments, made pursuant to wage assignments and tax intercepts and that clearly conform to the parties’ agreement and court orders are not voluntary." Slip op. at ¶ 16.
[37] First, I do not believe the law supports the majority's position that Father's overpayments cannot be voluntary simply because he overpaid by IWO. Carpenter makes it very clear that overpayments of child support as a result of tax intercepts are involuntary, but it does not clearly say that overpayments of child support via IWO cannot be voluntary. And second, this case is easily distinguishable from Carpenter wherein the father, as soon as he received notice that he was current on his child support arrearage, took steps to ensure he was no longer overpaying. 891 N.E.2d at 601. In some sense, the fact that Father's payments were withheld from his paycheck and dispersed to Mother, rather than him physically delivering the payments to her, is involuntary. But here, Father clearly knew the payments should have been stopped but allowed them to continue. Father's own conduct, or lack thereof, renders his payments voluntary.
[38] Although I believe Father is not entitled to be reimbursed for his overpayments for the reasons outlined above, I do not believe that Mother is entitled to the windfall created by Father's conduct. "It has long been held that the right to support lies exclusively with the child, and that a parent holds the child support payments in trust for the child's benefit." In re Hambright , 762 N.E.2d 98, 101 (Ind. 2002) (internal quotation omitted). The custodial parent acts as a trustee of the child support payments and is to use them for the benefit of that child. Id. ; see also Blume v. Stewart , 715 N.E.2d 913, 917 n.5 (Ind. Ct. App. 1999) ("The custodial parent acts in a fiduciary capacity when receiving child support payments."), trans. denied. The custodial parent may not use those funds to satisfy other debt. Drwecki , 782 N.E.2d at 450 ; see also Jenkins v. Jenkins , 567 N.E.2d 136, 140 (Ind. Ct. App. 1991). In this case, Father paid child support to Mother, the custodial parent and trustee of these payments, to be used solely for Child's benefit. Although Mother was the one receiving the payments, she was simply acting as a trustee and fiduciary; Child, not Mother, is entitled to the payments.
[39] At the hearing, Mother stated, "I tried my best to get [the payments] stopped and, yes, I have been giving the money to [Child] at times until she stopped doing what she was supposed to be doing. I do not think [Father] or myself should be paying for her to take care of her children. That was her choice." Tr., Vol. II at 16 (emphasis added). As Mother’ statement indicates, she provided Father's child support payments to Child until a certain point. And it appears that Mother continued accepting payments even after she stopped providing that money to Child because she unilaterally decided that Child was not doing what she needed to do in order to be entitled to the payments. I agree that the "extent ... Mother allegedly forwarded the child support payments to the Child" is absent from the record. Slip op. at ¶17. Specifically, the date Mother stopped providing payments to Child, the total amount she withheld, and whether Mother kept the money for herself are unclear from the record. What is clear is that Mother, as trustee of the child support payments, was not entitled to the money as it belongs to Child. And because Father's payments were voluntary, he is not entitled to the money. Therefore, I believe the trial court abused its discretion by ordering Mother to reimburse Father the overpaid child support and would reverse such order and remand this matter to the trial court for further proceedings to determine how much more money Mother owes Child, to whom Father believed the payments were being directed, and enter a judgment ordering Mother to reimburse Child for said amount to which Child is entitled.