Saturday, March 30, 2013

The high cost of ignorance and getting a refund of overpayment of child support - Indiana

2015 Indiana Child Support Guidelines
review scheduled for public comment

Everyone encounters those 30 day FREE TRIAL offers for some type of subscription service be it a magazine, cloud computing or AOL. These services are nearly always an “opt-out” meaning that you must notify the provider within some prescribed time period that you do not wish to continue the service or you will automatically be enrolled and charged. It was the tricky way that AOL did this which raised my ire and, I believe, got them sued by various states attorneys general.

AOL enticed web surfers with free access and either a bank account number or credit card number to “verify your identity”. Hidden in the small print was that you were enrolling in their service for a monthly fee.

When it comes to child support payment orders think of those in the same manner as a subscription service. For illustrative purposes let's use services for mobile communication devices. A monthly fee may include some usage level of the basic service, web browsing, hardware replacement fee [insurance], taxes and other incidental fees.

Similarly, a child support payment order will include a usage level [parenting time credit], daycare or education expense, sick-care insurance, ISETS fee and other specific costs that the parties may agree upon or the court may order.

If your employer starts providing devices for your use and you cut your usage on your personal device in half to where it falls into the next lower usage plan you don't get that rate until you request that adjustment. If you quit using it for web browsing you'll still be charged for that option unless you request a change to the plan.

If your child begins attending a public elementary school your child support payments will NOT automatically be adjusted to reflect the elimination of the child care expense. You will instead have to petition for a modification of child support. If your child attains the age of adulthood and resides elsewhere than the custodial parents' residence your child support payments will NOT automatically stop although the obligation to pay ceases. 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.[fn1]

When a child becomes emancipated a parent can either unilaterally stopped paying support for that child on his nineteenth birthday, or petition the trial court prior to the nineteenth birthday to stop paying support as of that date, which the Indiana Court of Appeals has described as “perhaps the wiser course.”[fn2] Failing to do either results in an overpayment. The well-established rule in Indiana is that overpayment of child support is generally viewed as voluntary and gratuitous.[fn3]

There is an exception to the overpayment rule. That is when the overpayment is not voluntary. In one illustrative case the trial court had held a hearing with the parties before the child’s emancipation and entered an order indicating that the father’s support amount would be reduced after emancipation. However, the court failed for twenty-five weeks after emancipation to enter an order reducing the support amount and the father’s paychecks had been subject to an income withholding order for the child during that time.[fn4] The Indiana Court of Appeals reasoned that the overpayment was involuntary because it was made through a wage withholding order.

In a recent case decided by the Indiana Court of Appeals the court found that father’s overpayment through a wage withholding order for 14 months after the child's emancipation was a gratuity.[fn5] Father sought reimbursement of $19,250 overpaid through a wage withholding order. The court reasoned that although the obligation for support ceased upon the child's emancipation, the father did nothing for 14 months to seek abatement of the payments. The court found father’s claim of involuntary payments unpersuasive because it was pursuant to a voluntary wage withholding order. Payments may be considered involuntary if 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, or that the amount paid was necessary to discharge a duty.[fn6]

Although the obligation to pay child support ceases upon the emancipation of the child it is still the paying parents responsibility to seek abatement of the order. Failure to “opt out” could cost you anything that has been overpaid just as it did Mr Eisenhut who overpaid $19,250.

If your child has reached or is nearing the age of nineteen or your wish to modify your support payment order then please visit my website and contact my scheduler to make an appointment to meet with me.

1] Hirsch v. Oliver, 970 N.E.2d 651, 660 (Ind. 2012).
2] Olson v. Olson, 445 N.E.2d 1389 (Ind. Ct. App. 1983)
3] R.R.F. v. L.L.F., 935 N.E.2d 243, 252 (Ind. Ct. App. 2010).
4] Drwecki v. Drwecki, 782 N.E.2d 440, 447 (Ind. Ct. App. 2003)
5] Eisenhut v Eisenhut, 49D03-9308-DR-1383. NFP opinion 22 March 2013, 49A02-1208-DR-633.
6] 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).

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©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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