Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                            May 15 2014, 8:54 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

DERICK W. STEELE                                JACOB D. WINKLER
Raquet Vandenbosch & Steele                     Kokomo, Indiana
Kokomo, Indiana


                                 IN THE
                      COURT OF APPEALS OF INDIANA

IN RE THE PATERNITY OF D.M.Y.:                  )
                                                )
M. S. R.,                                       )
                                                )
         Appellant-Respondent,                  )
                                                )
                vs.                             )     No. 34A04-1310-JP-504
                                                )
B. Y.,                                          )
                                                )
         Appellee-Petitioner.                   )


                      APPEAL FROM THE HOWARD CIRCUIT COURT
                            The Honorable Lynn Murray, Judge
                              Cause No. 34C01-9904-JP-59


                                       May 15, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                                 STATEMENT OF THE CASE

       Appellant-Respondent, Michael S. Robinson (Robinson), appeals the trial court’s

determination of his child support arrearage.

       We affirm.

                                               ISSUE

       Robinson raises one issue on appeal, which we restate as: Whether the trial court

erred in determining his child support arrearage to be $13,055 as of July 29, 2013.

                               FACTS AND PROCEDURAL HISTORY

       On August 20, 1999, Robinson was found to be the natural father of Bernice

Young’s (Young) two minor children. A weekly child support order was entered in the

amount of $146.00. On November 16, 2010, the trial court found Robinson in arrearage

of his child support payments in the amount of $21,337.00. The trial court noted that the

State of Indiana had attached $17,992.84 from Robinson’s bank account and ordered

$15,000.00 released towards the arrearage.1

       On June 20, 2012, the trial court conducted a hearing on Robinson’s petitions to

modify support, determine arrearage, and petition to show cause. Both parties were

present during the hearing. At the proceedings, the State introduced evidence about its

interception on June 30, 2011 of $7,025.84 out of Robinson’s bank account. Young

acknowledged that she had received a deposit in that amount in her bank account. At the

same time, the State introduced Exhibit 1 which showed the State’s calculation of

1
 Although Robinson claims that the trial court’s order established Robinson’s remaining arrearage to be
$6,337.00, the trial court never included that conclusion in its order. Rather, the trial court noted an
arrearage of $21,337.00, the State’s attachment of $17,992.84, and a release of $15,000.00.


                                                   2
Robinson’s arrearage as of December 31, 2011. The exhibit indicates the amount of

$7,025.84 as sitting in the clerk of court’s undistributed account. Robinson objected to

the admission of the exhibit because “[i]t doesn’t accurately reflect they’ve distributed

the money. According to [Young’s] testimony, they have just distributed the $7,025.00

to her and this doesn’t reflect that so I would object.” (Transcript pp. 42-43). The trial

court admitted the exhibit over Robinson’s objection, noting that the exhibit was accurate

as of December 31, 2011 and would be accepted under that caveat. On September 18,

2012, following the hearing, the trial court found Robinson to be in arrears of his child

support in the amount of $6,483.00 as of December 31, 2011.

       On July 31, 2013, the trial court conducted a hearing on Young’s motion to

activate income withholding order, citation, motion for rule to show cause, and motion

for civil sanctions as well as Robinson’s motion for parenting time. On September 4,

2013, the trial court issued its order, establishing Robinson’s arrearage at $13,055.00 as

of July 29, 2013. The trial court found him in indirect contempt for this wilful failure to

pay child support and authorized the issuance of a wage withholding order.

       Robinson now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

       Robinson contends that the trial court erred in its determination of a $13,055.00

child support arrearage because the court neglected to take into account the distribution

of $7,025.84 which took place on January 3, 2012. Therefore, he maintains that by

crediting the distribution, his proper arrearage should be $6,029.16.




                                             3
       In the present case, the trial court sua sponte entered findings of fact and

conclusions of law. When the trial court enters such findings sua sponte, the specific

findings control only as to the issues they cover, while a general judgment standard

applies to any issue upon which the court has not found. Scoleri v. Scoleri, 766 N.E.2d

1211, 1215 (Ind. Ct. App. 2002). In reviewing the judgment, this court must determine

whether the evidence supports the findings and whether the findings support the

judgment. Id. We will reverse a judgment only when it is shown to be clearly erroneous,

“i.e., when the judgment is unsupported by the findings of fact and conclusions entered

on the findings.” Id. For findings of fact to be clearly erroneous, the record must lack

probative evidence or reasonable inferences from the evidence to support them. Id. In

determining the validity of the findings or judgment, we consider only the evidence

favorable to the judgment and all reasonable inferences to be drawn therefrom, and we

will not reweigh the evidence or assess the credibility of witnesses. Id. Finally, a general

judgment may be affirmed on any theory supported by the evidence presented at trial. Id.

       First, Robinson did not timely appeal the complained error in calculation.

Although Robinson assigns error to the trial court’s order of September 4, 2013 for not

crediting $7,025.84 towards his arrearage, the record reflects that this amount was paid to

the Howard County Clerk’s office on June 30, 2011 and distributed to Young on January

3, 2012. Subsequent to the payment of the amount to the Clerk’s office, the trial court

conducted a hearing on June 20, 2012 to determine Robinson’s arrearage. During this

hearing, the parties alerted the trial court that the payment had been made by Robinson.

Thereafter, on September 18, 2012, the trial court issued an order finding Robinson in


                                             4
arrears in the amount of $6,483.00 as of December 31, 2011. As the September 18, 2012

was a final order, Robinson should have appealed within thirty days of its issuance if he

believed a calculation error had been made. See Appellate Rule 9(A).

       Furthermore, assuming arguendo, that Robinson’s appeal is timely, his

argument—that the distribution of $7,025.84 was not taken into account by the trial

court—is without merit. With respect to the calculation of child support arrearage, our

case law makes a distinction between a credit towards the payment of child support and

distribution of the amount.

       Indiana Code section 31-16-9-1(1) provides that “[u]pon entering an order for

support in . . . a dissolution of marriage decree . . . the court shall require that support

payments be made through the clerk of the circuit court as trustee for remittance to the

person entitled to receive payments.” Thus, the clerk, as the “trustee for remittance,”

receives the child support payments on behalf of the custodial parent. Richardson v.

Hansrote, 863 N.E.2d 1165, 1174 (Ind. Ct. App., 2008), reh’g denied. But one paying

money to an agent authorized to receive it is entitled to credit for the payment as if the

payment were made directly to the creditor. Id.

       Thus, when the $7,025.84 child support payment was made on June 30, 2011, the

clerk accepted those payments as trustee in remittance on behalf of Young. Therefore, at

the time the payment was made, Robinson was entitled to credit for it as if it had been

made directly to Young and thus would have been credited towards his arrearage on that

day. Accordingly, the amount would have been taken into account in the State’s exhibit




                                             5
submitted to the trial court during the hearing of June 20, 2012 and by the trial court in its

order of September 18, 2012. Therefore, we affirm the trial court.

                                      CONCLUSION

       Based on the foregoing, we conclude that the trial court properly determined

Robinson’s child support arrearage to be $13,055 as of July 29, 2013.

       Affirmed.

BRADFORD, J. concurs

ROBB, J. dissents with separate opinion




                                              6
                               IN THE
                     COURT OF APPEALS OF INDIANA

IN RE THE PATERNITY OF D.M.Y.:              )
                                            )
                                            )
M.S.R,                                      )
                                            )
         Appellant-Respondent,              )
                                            )
          vs.                               )       No. 34A04-1310-JP-504
                                            )
B.Y.,                                       )
                                            )
         Appellee-Petitioner.               )



ROBB, Judge, dissenting

                I agree with Robinson that the trial court erred in determining his arrearage,

and therefore I respectfully dissent from the majority opinion affirming the trial court

order.

         Going back to the November 16, 2010 order—the last order to establish an actual

arrearage prior to this most recent order—Robinson’s arrearage was set at $21,337.00.

From that date to the date of the most recent hearing, Robinson owed $20,586.00 in child

support. His total support obligation was therefore $41,923.00. Howard County Clerk’s

Office records show that $15,000.00 from the attachment of Robinson’s savings account


                                                7
was paid toward his child support, a $7,025.84 check received by the Clerk’s Office on

June 30, 2011 was released to Young on January 1, 2012, and payments of $8,625.00

were made by Robinson for a total child support payment of $36,039.84. His arrearage

therefore should be $5,738.00.     The trial court’s determination that Robinson was

$13,055.00 in arrears therefore reflects that the $7,025.84 check was most likely not

credited to him by the trial court ($13,055.00 - $5,738.00 = $7,317.00, which equates to

the $7,025.84 check and two $146.00 weekly payments). In short, the trial court’s math

does not add up and I would reverse the arrearage determination.

      With respect to the timeliness of Robinson’s appeal, as I noted above, the last

order to actually establish an arrearage was the November 16, 2010 order. The trial

court’s September 18, 2012 order addresses the credit for tax dependency to which

Robinson was entitled in previous years, determining that he was current on his child

support in 2004 through 2007 and in 2010, and entitled to a credit equal to the value of

the tax dependency for those years. The order states that “[o]n 12/31/2011, [Robinson]

was in arrears in the amount of $11,872.00. After the credit ordered herein, his arrearage

is found to be $6483.00 as of 12/31/2011.” Appellant’s Appendix at 36. There is no

hearing or order from December 31, 2011 reflected in the Chronological Case Summary,

see id. at 12, there is no indication of how that arrearage was determined or what was

included therein, and the figure was already nine months old at the time the order was

entered. An actual, current arrearage was not established until the most recent order on

September 4, 2013, and therefore I believe Robinson’s appeal of that order has timely

raised the issue of whether the trial court included the $7,025.84 payment and properly


                                            8
determined his arrearage. I would remand to the trial court to recalculate Robinson’s

arrearage with credit for that payment.




                                          9
