Sunday, September 6, 2009

Indiana court orders man reimbursed for tax checks stolen by the State Attorney General of Arizona.

Mom wants more and argues everything under the Sun to get it.

The Indiana Court of Appeals on Friday 04 September 2009 ordered that an Indiana man is to be reimbursed over $10,000 for tax refunds intercepted by the State of Arizona. The case of Williams v Williams is an unpublished opinion but provides some significant case law and findings. The opinion was written by Kirsch with Najam and Barnes concurring.

This case originated from the marriage and subsequent divorce of Yvonne and Wesley Williams. During the marriage two children were born, Matthew, born on January 16, 1983, and Angela, born on August 23, 1985. Yvonne and Wesley's marriage was dissolved in 1987, and Yvonne was awarded custody of both children. Pursuant to the dissolution decree, Wesley was obligated to pay child support to Yvonne which he did consistently.

10 years later, on December 30, 1997, Wesley filed a petition with the Grant Superior Court for modification of custody in which he sought custody of Matthew. On March 10, 1998, Yvonne and Wesley filed an agreed modification of custody with the trial court wherein they stated that Wesley should be awarded custody of Matthew and that Wesley's child support obligation should be abated “at the time the Order of Modification is granted as each party will have one child of the marriage.” The trial court issued an order granting Yvonne and Wesley's agreed modification of custody on March 13, 1998. Matthew began living with Wesley in June 1998.

Since there was no longer support being paid on June 12, 2008, Wesley filed his Petition to Determine Overpayment of Support and Amount Due to Respondent. In the petition, Wesley alleged that there had been an overpayment of child support because the State of Arizona had been seizing his tax refund checks. The trial court held a hearing on Wesley's petition on July 18, 2008. Yvonne didn't appear but her counsel did so instead. During the hearing, Wesley testified that his child support obligation was abated in June 1998 when Matthew came to live with him and that, at that time, he had no child support arrears. Wesley stated that since 1998, various states, including Arizona, had seized $11,582 in excess of what he was to pay in support. That being $10,382 from income tax refunds, while $1,200 was from a tax stimulus check. This money was then transferred to Yvonne. The court ordered Yvonne to reimburse $11,582 to Wesley in monthly payments of $100. Wesley, though, admitted that because $196 had been returned to him during the hearing, the amount Yvonne now owed him should be reduced to $11,386. On September 30, 2008, the trial court issued an order in which it found that Wesley had overpaid his child support by $11,386. Despite this, the court ordered Yvonne to reimburse $11,582 to Wesley in monthly payments of $100.

Everything under the sun

Yvonne, on appeal, contends that the Court erred in ordering her to pay $11,582 because she had already returned a $196 check to Wesley during the hearing. She was correct and the Court of Appeals agreed. The case was remanded to the trial court for the court's order to reflect the return of $196. That is where the support for Yvonne on appeals ends though.

Wesley had testified that Matthew entered the military when he turned eighteen in 2001, and that Angela got married in November 2005. Based on this testimony, Yvonne's counsel argued that Matthew was emancipated once he entered the military, and thereafter, Wesley should have paid Yvonne child support for Angela until 2005 when she got married. She argues that Wesley owes child support in the amount of $82 per week for Angela from April 2001 until November 2005 when Angela got married and consequently was emancipated pursuant to Indiana Code section 31-16-6-6(b)(2). She calculates that for this period, Wesley owes $19,680 in child support. Based on this, Yvonne concludes that the trial court should have found that she owes Wesley nothing.

Well that is just not the way it is done. Those of us who have been victimized by the Bradley Amendment know that you can't get a retroactive modification to reduce your support payments order back to when you lost your job or whatever else. Support can only be modified back to the date of a petition to modify. Yvonne never sought a modification in support. She simply asked the appeals court to make the modification. What Yvonne in fact seeks upon appeal is a retroactive order modifying child support, which Indiana law prohibits. See Ind. Code § 31-16-16-6(a); Drwecki v. Drwecki, 782 N.E.2d 440, 447-48 (Ind. Ct. App. 2003) (noting that because retroactive modification of child support is prohibited, as a general rule, a court order modifying child support may only relate back to the date the petition to modify was filed and not an earlier date). Strike 1.

Yvonne also argues that she further testified that her 1998 agreement with Wesley to modify custody did not specify that Wesley had no child support arrears at that time. In fact, Yvonne testified that as of June 1, 1998, Wesley owed $4,648 in child support. However, Wesley testified that in June 1998 he had no child support arrears and it was not proven otherwise. Yvonne's argument asks the court to reweigh the evidence and judge witness credibility, which the court will not do. See Carpenter, 891 N.E.2d at 592. The trial court found Wesley's testimony credible which was sufficient to permit the trial court to conclude that there was no child support arrears as of June 1998. Strike 2.

No support was ordered in this case after June of 1998 when Yvonne contends that Wesley had a support arrears of $4648. Since that wasn't enough Yvonne also tried to say that the arrears was $10,673.47. This time she relies upon a document that was prepared by the State of Arizona which indicates that Wesley has a child support arrears totaling $10,673.47. She contends that the trial court's judgment should be reduced by this amount. However, the child support order in this case was entered in Indiana, and Wesley made his child support payments in this State. As such, Arizona's calculation of Wesley's alleged child support arrears is of minimal evidentiary value. Really it was nothing more than Arizona fabricating a child support arrears for the purpose of intercepting tax checks to get federal incentive payments. Courts are rarely so obtuse as to call it as bluntly as it is so the Indiana Court of Appeals simply found no merit in the Arizona calculation although it really amounted to theft. Strike 3.

Finally, Yvonne contends that Wesley's overpayment of child support through the State of Arizona's interception of tax refunds should be considered a gratuity or a voluntary contribution for the support of Angela, and as such, Wesley may not recoup these funds. Generally, voluntary overpayments of child support are treated as gratuities. Carpenter v. Carpenter, 891 N.E.2d 587, 600-601(Ind. Ct. App. 2008) . However, the court has previously held that the overpayment of child support resulting from tax interception cannot be construed as a voluntary overpayment of child support or a gratuity and that the party claiming an overpayment of child support is entitled to reimbursement of those funds. Matson v. Matson, 569 N.E.2d 732, 734 (Ind. Ct. App. 1991). Here, because the overpayment of child support was due to tax intercepts, the overpayment was involuntary and the trial court properly concluded that Wesley was entitled to reimbursement of the amount he overpaid in child support. Strike 4.

This case provides some key points to keep in mind about child support payment issues and trials in general. It is helpful when making a claim that you have supporting documentation. Saying it's $4,000 but also $10,000 just doesn't add any credibility. If you want a change in child support payments then request a modification. You don't wait until the children are emancipated and then say now let's do an audit and figure out what it really should have been. If you voluntarily overpay support then it is considered a gift. If there is an extraordinary expense that you want to help with then make that payment on the condition that it is future support payments. Get a document attesting to this and file it with the court. Finally, before you go seeking $35,197.47 on appeal and only getting $196 make sure you don't use Stephen P Wolfe of Marion, Indiana who doesn't know some of these simple principles of law.

The State of Arizona has no right to butt into Indiana child support cases. The Arizona State Attorney General was asked for comment on this allegation but at the time of publication no response had been received.

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