C.C. v. F.W.

• Court: Indiana Appellate Court
• Writing for the Court: Tavitas, Judge.
• Citation: C.C. v. F.W., 167 N.E.3d 715(Table) (Ind. App. 2021)
• Decision Date: 11 March 2021
• Docket Number: Court of Appeals Case No. 20A-JP-1594
• Parties: C.C. (Mother), Appellant-Petitioner, v. F.W. (Father), Appellee-Respondent.

167 N.E.3d 715 (Table)

C.C. (Mother), Appellant-Petitioner,

v.F.W. (Father), Appellee-Respondent.

Court of Appeals Case No. 20A-JP-1594

Court of Appeals of Indiana.

FILED March 11, 2021

MEMORANDUM DECISION

Tavitas, Judge.

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 $100.00.¹ By court order, Father's payments were made through his wage withholding.

[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[.]"² See Mother's App. Vol. II p. 94.

[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.³ The order stated:

... [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 nineteenth⁴ 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.

[7] On August 7, 2020, the trial court conducted a hearing⁵ 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:

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,⁶ 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.

[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?

* * * * *⁷

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—

* * * * *

That [Father] paid consistently for—

* * * * *

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 ....

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.⁸ Mother now appeals.

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...