                                                       Mar 22 2013, 8:48 am
FOR PUBLICATION



ATTORNEY FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

RICHARD RANUCCI                               LOWELL A. SHROYER
Indianapolis, Indiana                         Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA


GAIL EISENHUT,                                )
                                              )
      Appellant-Petitioner,                   )
                                              )
             vs.                              )      No. 49A02-1208-DR-633
                                              )
RICHARD EISENHUT, M.D.,                       )
                                              )
      Appellee-Respondent.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Patrick McCarty, Judge
                       The Honorable Burnett Caudill, Magistrate
                           Cause No. 49D03-9308-DR-1383


                                    March 22, 2013

                              OPINION – FOR PUBLICATION

BARNES, Judge
                                    Case Summary

      Gail Eisenhut appeals the trial court’s judgment in favor of her ex-husband,

Richard Eisenhut, in the amount of $19,250. We reverse.

                                          Issue

      Gail raises three issues, which we combine and restate as whether the trial court

properly ordered her to pay $19,250 to Richard to reimburse him for child support

payments he made after their daughter turned twenty-one.

                                          Facts

      Gail and Richard were divorced in 1995. Their daughter, Brittany, was born in

February 1990. The dissolution decree granted primary custody of Brittany to Gail and

ordered Richard to pay $250 per week, or $1075 per month, in child support, via income

withholding. The decree contained no language as to when Richard’s support obligation

would end. The trial court subsequently issued an order to Richard’s then-employer to

withhold $1075 per month from his pay for child support. Richard’s support obligation

was increased to $1375 per month in 2004. In 2009, Richard changed employers. At that

time, he voluntarily arranged for his support obligation to continue to be withheld from

his pay; there was no court order that required income withholding specifically as to this

employer.

      Brittany turned twenty-one in February 2011. At the time, she was attending

Butler University and continuing to live at home with Gail. Although Gail and Richard

had previously informally discussed his contributing to Brittany’s college expenses, Gail

                                            2
never obtained an order requiring him to do so. Richard took no action to discontinue

paying support for Brittany until April 27, 2012, when he filed a petition to discontinue

paying support. Although Richard was aware that the $1375 was continuing to be

deducted from his monthly pay and thought that his support obligation should have ended

when Brittany turned twenty-one, he admittedly had “no good reason” for waiting

fourteen months to contact his attorney to see how to go about terminating his support

payments and said that his current wife had cajoled him into doing so. Tr. p. 13. After

Richard filed his petition to discontinue paying support, Gail stipulated that he was

entitled to do so, effective immediately.        She also repaid the most recent monthly

payment she had received after the petition was filed to Richard.

       Richard’s petition also sought to have Gail repay $19,250 in support she had

received after Brittany turned twenty-one. Gail did not agree to do so. The trial court

conducted a hearing on this issue on June 20, 2012, after which it found that Richard “has

involuntarily overpaid child support” in the amount of $19,250 and entered a judgment

against Gail in that amount. App. p. 14. Gail now appeals.

                                         Analysis

       Rulings concerning child support, including matters of overpayment, are

committed to the trial court’s discretion. Beckler v. Hart, 660 N.E.2d 1387, 1389 (Ind.

Ct. App. 1996). An abuse of discretion occurs in a trial court’s ruling if it is clearly

against the logic and effect of the facts and circumstances before the court, or if the court

has misapplied the law. Fackler v. Powell, 923 N.E.2d 973, 980 (Ind. Ct. App. 2010).

                                             3
       The trial court here entered some limited sua sponte findings with its order. Sua

sponte findings only control issues that they cover, while a general judgment standard

applies to issues upon which there are no findings. Morgal-Heinrich v. Heinrich, 970

N.E.2d 207, 210 (Ind. Ct. App. 2012). We may affirm a general judgment with findings

on any legal theory supported by the evidence. Id. As for any findings that have been

made, they will be set aside only if they are clearly erroneous. Id. A finding is clearly

erroneous if there are no facts in the record to support it, either directly or by inference.

Id.

       There is no doubt here that Brittany was emancipated as a matter of law for child

support purposes when she turned twenty-one in February 2011 and that Richard’s legal

obligation to support her ended on that date. See Willard v. Peak, 834 N.E.2d 220, 225

(Ind. Ct. App. 2005) (citing Ind. Code § 31-16-6-6).1 Nor was there a post-secondary

educational support order in place that required Richard to contribute to her college

education despite her emancipation.           And, 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. See Hirsch v.

Oliver, 970 N.E.2d 651, 660 (Ind. 2012). The question in this case is whether Gail was

required to reimburse Richard for support payments that continued to be withheld from




1
 Effective July 1, 2012, the legislature amended Indiana Code Section 31-16-6-6 to lower the automatic
age of emancipation from twenty-one to nineteen. See Hirsch v. Oliver, 970 N.E.2d 651, 655 n.1 (Ind.
2012).
                                                  4
his paycheck after Brittany’s emancipation and before he petitioned to terminate his

support obligation.

       The well-established rule in Indiana is that overpayments of child support are

generally viewed as voluntary and gratuitous. See, e.g., R.R.F. v. L.L.F., 935 N.E.2d

243, 252 (Ind. Ct. App. 2010). Moreover, and importantly for this case, we have applied

this rule in the context of overpayments made after a child’s automatic emancipation. In

Olson v. Olson, 445 N.E.2d 1386 (Ind. Ct. App. 1983), as here, a father continued paying

child support for a child well after the child had turned twenty-one. Approximately a

year after the child had turned twenty-one, the father filed a petition seeking to credit the

extra year of support he had paid for his emancipated child against a support arrearage he

had accumulated with respect to his other two children. We held the father was entitled

to no such credit. We first noted that the father either could have unilaterally stopped

paying support for that child on his twenty-first birthday, or petitioned the trial court prior

to the twenty-first birthday to stop paying support as of that date, which we described as

“perhaps the wiser course.” Olson, 445 N.E.2d at 1389. We then stated:

                     Unrequired payments made by a non-custodial parent
              for the benefit of children must be considered a gratuity or a
              voluntary contribution. They should not be considered a
              prepayment of the support obligation. Nor should they be
              credited against arrearages due with respect to other children.

                     It is true that the Father’s unrequired payments here
              are easily identifiable and provable. In addition, it may be
              observed that the rationale which forbids credit against future
              support does not apply here. The purpose of providing
              “regular uninterrupted income for the benefit of that parent’s

                                              5
               children” would not be thwarted. Nevertheless, we recognize
               that the parents in intact families often contribute, to the
               extent of their ability, to their children’s support even after
               their children have reached the age of twenty-one. When the
               need exists, such gestures of familial affection, solidarity and
               support are to be commended, if not encouraged. Similar acts
               involving parent-child in a dissolved marital relationship are
               entitled to judicial recognition. This is true because in the
               formulation and enforcement of support orders the courts
               seek to eliminate or minimize the prejudicial economic
               impact of dissolution.

Id. at 1389-90 (citations omitted). It is true that Olson concerned credit against a support

arrearage for other non-emancipated children, which is not the case here. Nonetheless,

whether an arrearage credit or a judgment for support reimbursement is at issue, the

effect on a parent who received the support overpayment as trustee for the child is

effectively the same—he or she is deprived of money already paid by the obligor.2 This

is especially true here, in that Brittany was still living with and dependent upon Gail and

attending college full-time after her automatic emancipation.

       The trial court here expressly found that Richard had “involuntarily overpaid”

child support for Brittany’s benefit, thus avoiding the rule regarding such overpayments

being considered gratuitous and not subject to reimbursement. App. p. 14. However,

there is no evidence in the record that would support such a finding and it is clearly

erroneous.    This court previously has found overpayments of child support to be

involuntary where an obligor’s tax refund had been intercepted by the Internal Revenue

Service. See Carpenter v. Carpenter, 891 N.E.2d 587, 601 (Ind. Ct. App. 2008); Matson
2
  If anything, having a large monetary judgment entered against a parent may be more damaging than a
future reduction in other child support payments.
                                                 6
v. Matson, 569 N.E.2d 732, 734 (Ind. Ct. App. 1991).              We also have found an

involuntary overpayment of child support where it was occasioned by a violation of due

process by a Title IV-D agency. Flowers v. Flowers, 799 N.E.2d 1183, 1192 (Ind. Ct.

App. 2003). In Drwecki v. Drwecki, 782 N.E.2d 440, 447 (Ind. Ct. App. 2003), we

found an involuntary overpayment of support in a situation where the trial court had held

a hearing with the parties before a child’s emancipation and entered an order indicating

that the father’s support amount would be reduced after emancipation (with support

remaining for another child), but the court failed for twenty-five weeks after

emancipation to enter an order fixing the reduced support amount and the father’s

paychecks had been subject to an income withholding order for the higher amount during

that time.

       Here, Richard was not compelled to overpay child support because of improper or

erroneous government action, unlike in Carpenter, Matson, or Flowers. Moreover, this

case is unlike Drwecki, where the issue of the child’s emancipation and corresponding

reduction in the father’s support obligation had been noted prior by the trial court prior to

emancipation taking place, but the trial court had erroneously continued father’s support

obligation for twenty-five weeks after emancipation. Rather, there simply was a failure

on the part of Richard to take any action to terminate his support obligation for over a

year after Brittany’s emancipation, which was precisely the scenario in Olson. Richard

testified at the hearing that he had assumed support would automatically stop after

Brittany turned twenty-one, and that he did not know how to terminate his support

                                             7
obligation after he noticed that the $1375 was continuing to be withheld from his

paychecks every month.      However, Richard’s income was being withheld from his

present employer via his own voluntary wage assignment, not pursuant to a court order,

and there is no evidence he explored the possibility of unilaterally terminating that wage

assignment. Cf. Carpenter, 891 N.E.2d at 600 (noting that eight days after trial court

entered order finding father had repaid support arrearage, father adjusted his voluntary

wage assignment through his employer to reduce the amount withheld for child support).

Nor did Richard seek legal advice from his attorney, who has represented him since 1997

in matters involving Gail and Brittany, until a few days before he filed his petition to

terminate his support obligation. In sum, we believe Richard’s own testimony that he had

“no good reason” for waiting fourteen months to try to terminate his support payments is

conclusive evidence that he voluntarily made those payments while under no compulsion

to do so. Tr. p. 13.

       In addition to ordering reimbursement of overpaid child support in cases where the

overpayment was “involuntary,” such reimbursement may be ordered where 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, that the amount paid

was necessary to discharge a duty. 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). There is no evidence

of any misrepresentation by Gail. Richard clearly was aware of when Brittany’s twenty-

first birthday was. Additionally, the undisputed evidence is that during the entire time

                                            8
Richard overpaid child support, Brittany in fact was still entirely dependent upon Gail for

her living expenses while she was living at home and attending college. Thus, Gail was

not pocketing the overpaid child support for her sole benefit.3 Having found the trial

court’s finding that Richard “involuntarily” overpaid child support to be clearly

erroneous and there being no other basis upon which to affirm the trial court, we

conclude it abused its discretion in ordering Gail to reimburse Richard for his overpaid

child support.

                                            Conclusion

       We reverse the trial court’s judgment against Gail for $19,250, as there is no

evidence that this overpayment of child support by Richard was anything but voluntary

and gratuitous.

       Reversed.

BAKER, J., and RILEY, J., concur.




3
 We need not consider whether we might have reached a different result in this case had Gail continued
accepting payments from Richard after Brittany had moved out of the house and/or become self-
sufficient.
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