                                                                                Nov 27 2013, 5:57 am

FOR PUBLICATION



APPELLANT PRO SE:

DEBRA A. ROOP
Louisville, Kentucky




                              IN THE
                    COURT OF APPEALS OF INDIANA

DEBRA A. ROOP,                                 )
                                               )
       Appellant-Petitioner,                   )
                                               )
              vs.                              )        No. 88A01-1304-DR-171
                                               )
DEAN A. BUCHANAN,                              )
                                               )
       Appellee-Respondent.                    )


                APPEAL FROM THE WASHINGTON SUPERIOR COURT
                        The Honorable Frank Newkirk, Judge
                           Cause No. 88D01-9402-DR-38



                                    November 27, 2013

                               OPINION - FOR PUBLICATION

RILEY, Judge
                                  STATEMENT OF THE CASE

        Appellant-Petitioner, Debbie Roop (Roop), appeals the trial court’s order to pay

her child support arrearage to Tina Buchanan (Buchanan).

        We affirm in part and reverse in part.

                                                ISSUE

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

abused its discretion when it ordered Roop to pay her child support arrearage to her adult

child, Buchanan, instead of to Appellee-Respondent, Dean Buchanan (Dean), who is

deceased.

                           FACTS AND PROCEDURAL HISTORY1

        Roop and Dean dissolved their marriage in 1994. During the marriage, two

children were born: Buchanan, now 28 years-old, and Jessi D. Buchanan, now 23 years-

old. The two children resided with Dean, and Roop was ordered to make regular child

support payments. Over time, Roop accrued a child support arrearage of approximately

$22,000. For the last ten years, Roop has made regular child support payments as well as

payments towards her arrearage. She currently pays $20 every two weeks towards her

obligation and her arrearage has decreased to approximately $9,400.




1
 Pursuant to Indiana Appellate Rule 49(A), Appellant “shall file its Appendix with its appellant’s brief.”
The purpose of an Appendix is to present this court with “those parts of the record on appeal that are
necessary to decide the issues presented.” Ind. Appellate Rule 50(1). Roop failed to submit an Appendix
with her appellate brief and consequently, also failed to include citations and references to the relevant
materials that would otherwise have been included in the Appendix. As a result, we must necessarily rely
on Roop’s factual recitation in her brief without an opportunity to verify her statements.


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      Dean died on October 26, 2012. After his death, Roop contacted the trial court

requesting relief for the remaining arrearage of her child support obligation.             On

November 16, 2012, the State of Indiana, as an Intervenor, filed a motion to determine

the amount of child support arrearage and payment. On January 22, 2013, the trial court

conducted a hearing on the motion. During the hearing, the State advised that the

recipient of the child support, Dean, was deceased and requested guidance with respect to

the distribution of child support payments which had been put on hold. Roop, in turn,

requested relief of the arrearage as the recipient was deceased and no estate had been

opened. Buchanan testified that she had assumed her father’s funeral expenses in the

amount of $8,026. She requested to be assigned the recipient of the child support

arrearage, which she would apply towards the funeral expenses. She agreed with the trial

court’s suggestion that upon satisfaction of the funeral expenses, the remaining payments

towards the arrearage should be divided between her sibling and herself.

      On January 29, 2013, the trial court issued its Order, finding, in pertinent part:

      3. Because the children are adults and the father is deceased, [Roop] had
      requested that the arrearage be forgiven.

      4. The parties’ daughter, [Buchanan] is now 28 years old and has assumed
      funeral expenses for [Dean] of $8,026.00 and is entitled to collect the
      arrearage for funeral expense purposes.

      5 [Roop] shall continue to pay a minimum of ten ($10.00) per week toward
      the arrearage.

      6. After all funeral expenses and actual interest and collection costs have
      been paid, payments on the arrearage shall be paid in equal amounts to the
      adult children [] until paid in full.




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       7. The Clerk shall release $140.00 being held in this case to [Buchanan] for
       the payment of funeral expenses as provided in this order.

(Appellant’s Br. p. 12).

       On February 19, 2013, Roop’s sister contacted the trial court, notifying the court

that Buchanan was not making payments to the funeral home as directed by the trial

court’s order. On March 26, 2013, the trial court conducted another hearing, and on

April 2, 2013, the trial court issued the following Order, stating in pertinent part:

       2. After entry of the [c]ourt’s order, [Roop] notified the [c]ourt that
       [Buchanan] was not paying the funeral expenses as agreed and ordered.

       3. Weathers Funeral Home has not been paid and has filed suit against
       [Buchanan].

       4. [Buchanan] still has the uncashed support checks and has not activated
       the debt card containing support funds because she says that Weathers
       Funeral Home would not accept partial payments unless the debtor applied
       to Personal Finance Company for a structured promissory note.

       5. [Buchanan] testified that [Dean] had life insurance but named his
       grandchildren as beneficiaries and the insurance proceeds are not available
       for payment of funeral expenses.

       6. [Roop] does not want to pay back support at all, even at $10.00 per
       week toward [Buchanan’s] funeral expenses.

       7. The [c]ourt now reaffirms its prior Order of January 29, 2013 and directs
       [Buchanan] to promptly pay over support proceeds to Weathers Funeral
       Home, or if they will not accept payments now, to make payments to the
       Clerk after a judgment is entered against [Buchanan] for funeral expenses.

(Appellant’s Br. p. 16).

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

                              DISCUSSION AND DECISION




                                              4
       Roop contends that the trial court abused its discretion when it ordered her to

continue to make payments towards her child support arrearage even though the recipient

is deceased and no estate had been established. Specifically, she maintains that because

child support arrearage is a “debt owed to the custodial parent for expenses accrued by

the custodial parent in rearing dependent children, [] in the absence of a formal estate

process,” the trial court improperly earmarked the support arrearage to pay for Dean’s

funeral expenses incurred by the adult child. (Appellant’s Br. pp. 6, 8).

       Initially, we note that no appellee’s brief was filed. “When an appellee does not

submit a brief, an appellant may prevail by making a prima facie case of error. Gibson v.

Hand, 756 N.E.2d 544, 545 (Ind. Ct. App. 2001). Such a rule protects this court and

relieves it from the burden of controverting arguments advanced for reversal, a duty

which properly remains with counsel for the appellee. Id. at 546.

                                  I. Standard of Review

       Decisions regarding child support matters are within the sound discretion of the

trial court. Decker v. Decker, 829 N.E.2d 77, 79 (Ind. Ct. App. 2005). We reverse a

child support decision only if there has been an abuse of discretion or the decision is

contrary to law. Id. An abuse of discretion occurs if the trial court’s decision is clearly

against the logic and effect of the facts and circumstances before it. Norris v. Pethe, 833

N.E.2d 1024, 1029 (Ind. Ct. App. 2005).

                               II. Nature of the Arrearage

       One of the purposes of child support is to provide a child with regular and

uninterrupted support. Rendon v. Rendon, 692 N.E.2d 889, 897 (Ind. Ct. App. 1998). It


                                             5
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.” Bussert v.

Bussert, 677 N.E.2d 68, 71 (Ind. Ct. App. 1997), trans. denied. The custodial parent acts

as a trustee of the payments and is to use them for the benefit of the child. Straub v.

B.M.T. by Todd, 645 N.E2d 597, 599 (Ind. 1994). As the constructive trustee, the

custodial parent may not contract away the benefits of the constructive trust, and neither

the parents nor the child may informally effect a modification or annulment of the

accrued benefits. In re Hambright, 762 N.E.2d 98, 101 (Ind. 2002). In addition, once

funds have accrued to the child’s benefit, the trial court lacks the power to reduce, annul,

or vacate the child’s support order retroactively. Whited v. Whited, 859 N.E.2d 657, 661

(Ind. 2007).2

        Several cases have arisen over the years that have provided an opportunity to

refine these general rules and adapt them to diverse situations. In Lizak v. Schultz, 496

N.E.2d 40 (Ind. 1986), the mother, who was the custodial parent, died while the father

owed a substantial arrearage on his child support obligation. Id. at 41. The mother’s

husband, as personal representative of her estate, pursued the arrearage which existed on

the date of her death, and eventually a judgment was entered against the father and in

favor of the estate. Id. The father appealed, arguing that because the mother was a

fiduciary for the children, the arrearage was not an ordinary debt that could be collected

2
  There are two exceptions to the rule prohibiting retroactive modification of support already accrued,
none of which is applicable to the case before us: 1) where the parties have agreed to and carried out an
alternative method of payment which substantially complies with the spirit of the decree and 2) where the
obligated parent, by agreement with the custodial parent, takes the child into his or her home, assumes
custody, provides necessities, and exercises parental control for such a period of time that a permanent
change of custody is effected. Whited, 859 N.E.2d at 662.


                                                   6
by the personal representative. Id. The Lizak court noted that describing the child’s

custodian as a trustee has “distant origins in our law” to differentiate between alimony—

paid to the former spouse for his or her benefit—and child support—paid to the child’s

custodian regardless of whether the custodian is also the child’s parent. Id. at 42. Using

the term “trustee” supports the obligation of the custodian to seek enforcement of a child

support order but is not meant to provide the non-paying parent an avenue to avoid

paying child support. Id. As such, the court clarified that the non-custodial parent has an

ongoing obligation to pay child support and the custodian has an ongoing obligation to

care for the child. Id. A custodial parent who has advanced his or her own funds to

provide food, clothing, and shelter to the child has discharged the trusteeship and “is

entitled to collect the arrears from the non-custodian.” Id. Thus, rejecting the father’s

attempts to avoid his support obligation by forcing the custodian to prove the shortfall

caused by arrearage had been made up by the custodian’s own funds, the court concluded

that the personal representative was entitled to collect the debt. Id. at 43.

       In Hambright, our supreme court considered whether a child support arrearage is

an asset of the custodial parent’s bankruptcy estate. In re Hambright, 762 N.E.2d at 101.

Relying on the basic principles that the right lies with the child and the custodial parent

holds the support in trust for the child’s benefit, the court concluded that arrearages are

held for the children and the custodial parent has no individual property interest in them;

therefore, the bankruptcy trustee has no interest in them either. Id. at 103-04. In so

holding, our supreme court left open the issue of “whether the nature of the custodial

parent’s interest in an arrearage changes after a non-custodial parent’s duty to support


                                              7
ends.” Id. at 103 n.4. Subsequently, this court applied the Hambright case in holding

child support arrearages are not includable as marital property subject to division in a

dissolution proceeding. Elkins v. Elkins, 763 N.E.2d 482, 486 (Ind. Ct. App. 2002).

      In Hicks v. Smith, 919 N.E.2d 1169 (Ind. Ct. App. 2010), mother was the custodial

parent of a minor child, with father being ordered to pay child support. Id. at 1170.

Father absconded with the child and remained a fugitive until the child reached majority.

Id. at 1171. Subsequently, after father was located and the child was emancipated,

mother filed a petition for the payment of the accrued child support arrearage. Id. Father

requested to pay the arrearage directly to his son.      Id. at 1174.    Referencing the

established case law, we concluded:

      That a custodial parent holds child support payments in trust for the child
      makes sense during the child’s minority because the minor child has an
      ongoing and regular need for support. Once the child is emancipated,
      however, the child has been supported. If there is an arrearage remaining,
      the custodial parent generally had to assume more than his or her share of
      supporting the child. Where there is clear evidence that because of the
      arrearage and the custodial parent’s inability to make up the shortfall, the
      now-emancipated child had gone without something that is still relevant—
      for instance, a college education—the child may arguably be entitled to
      some of the arrearage. However, for the most part, the arrearage should be
      available to compensate the custodial parent for his or her expenses in
      assuming more than his or her share of the cost of supporting the child until
      his or her emancipation.

Id. at 1173-74. Applying these principles, the Hicks court acknowledged that mother did

not provide support for the child due to father’s absconcement.           Id.   However,

“[p]resumably, she maintained a home for [the child] should he be returned to her

custody and made decisions for sixteen years based on the possibility of his return.” Id.

at 1174. Rejecting Father’s request, we noted that, as the child did not support himself


                                            8
during the time he was absent from mother’s household, the arrearage cannot be paid

directly to him, distinguishing Thacker v. Thacker, 710 N.E.2d 942 (Ind. Ct. App. 1999)

(the arrearage should be paid to the son because the son advanced his own funds to care

for himself during the two-year period he was not living with the custodial parent). Id.

Accordingly, because father was not entitled to retain the arrearage, and, as “between

these three parties and under these circumstances,” the Hicks court affirmed the trial

court’s award of the arrearage to mother. Id. at 1175.

                    III. Trial Court’s Award of Arrearage to Buchanan

       Established precedent clarifies that, with some limited exceptions, the child

support arrearage is typically considered a debt owed to the custodial parent for the

amounts advanced to make up the non-custodial parent’s financial shortfall in raising the

children. This obligation to refund the custodial parent exists regardless whether the

children are emancipated. Should the custodial parent decease prior to the satisfaction of

this debt, the representative of the estate is entitled to collect the arrearage.

       With these principles in mind, we turn to the unique facts of this case. It is

undisputed that, as of January 22, 2013, Roop’s child support arrearage amounted to

$9,464.27. It is equally undisputed that Dean is deceased and no estate has been opened.

Both children are emancipated and Buchanan assumed Dean’s funeral costs in the

amount of $8,026.00.       As Dean, the deceased custodial parent whose children are

emancipated, is entitled to a presumption that he expended his own funds to offset any

deficit caused by the unpaid child support during the children’s minority, it is only

reasonable to infer that these extra expenses cut short his own savings toward funeral


                                                9
costs. Because he was unable to save during his life, his emancipated child has now

assumed these costs in lieu of her father. Under these circumstances, we cannot say that

the trial court abused its discretion when it ordered Roop to continue paying the child

support arrearage towards Dean’s funeral costs. However, as the arrearage is a debt owed

to the custodial parent as trustee of the child, and in the absence of an estate, the trial

court abused its discretion when it awarded the remainder of the arrearage—after

payment of the funeral expenses—directly to the emancipated children. See Lizak, 496

N.E.2d at 42.

                                     CONCLUSION

       Based on the foregoing, we conclude that the trial court properly ordered Roop to

pay the accrued child support obligation to Buchanan for satisfaction of Dean’s funeral

expenses. However, the trial court abused its discretion when it awarded the remainder

of the child support arrearage to the emancipated children.

       Affirmed in part and reversed in part.

ROBB, C. J. and KIRSCH, J. concur




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