Overpaying Child Support

Indiana has a general rule controlling cases when the non-custodial parent overpays child support: it is a gift unless the non-custodial parent owes for not having paid support.

Then there is Drwecki v. Drwecki, 782 N.E. 2d 440 (Ind.App. 2003).

I recently ran across this case on another issue but I found myself fascinated by the mess that this case was and particularly by the issue of overpayment.

If anyone really wants to understand what family lawyers do, I suggest reading this case. Specifically, the case involves child support, college tuition, how to deal with college expenses for one child and child support for another child not in college, and overpayment of child support.

More generally, it is about the messiness that creeps into the post-divorce legal relationship, somewhat like weeds in a garden. As with many of my cases, what the courts and counsel did here amounts to cleaning and weeding and pruning the overgrowth. Nothing glamorous but necessary.

In Drwecki, the father accumulated an overpayment in the thousands of dollars between the time of one court order and the time the court modified that order. Here is how the Court of Appeals handled this issue (and why the issue had some importance beyond just this case):

In previous cases, we have held that “child support payments cannot be applied prospectively to support not yet due at the time of the overpayment.” Matson v. Matson, 569 N.E.2d 732, 733 (Ind. Ct. App. 1991).

The rationale behind the rule is that it would be unjust for a non-custodial parent to voluntarily build up a substantial credit and then suddenly refuse to make support payments for a period of time. This would thwart the court’s purpose of providing regular, uninterrupted income for the benefit of the children. The regularity and continuity of court decreed support payments are as important as the overall dollar amount of those payments. Id. This rule suggests that Father cannot receive credit against future support payments.

However, the rationale underlying this rule does not fully apply here, where Father did not voluntarily build up a substantial credit. Rather, Father built up a substantial credit because he followed the court’s previous order that required him to pay $241 per week in child support. If Father had failed to make those payments until the court modified the order, the trial court might have found him in contempt. Cf. Kirchoff v. Kirchoff, 619 N.E.2d 592, 597 (Ind. Ct. App. 1993) (holding trial court did not abuse its discretion when it refused to hold a father in contempt for his failure to pay child support); see also Ind. Code § 31-16-12-6 (“If the court finds that a party is delinquent as a result of an intentional violation of an order for support, the court may find the party in contempt of court.”).

Moreover, if we do not allow Father to recoup his excess payments made pursuant to the court order, then we will be encouraging non-custodial parents who are current on their support obligation and who believe they deserve a decreased support requirement to unilaterally decrease their support payments before the court orders such reduction. A better public policy is to encourage parents to stay current on their child support obligations and to follow the court’s order until that order is modified; we should not encourage parents to violate court orders out of concern that they will be unable to receive credit for the excess money they paid.

Finally, one reason we allow courts to modify the support obligation back to the date of the petition is because “[t]o grant modification of support only from the date of the court’s order detracts from the purposes of the changed circumstances rule and serves to encourage and benefit dilatory tactics.” Kruse v. Kruse, 464 N.E.2d 934, 939 (Ind. Ct. App. 1984), reh’g denied, trans. denied. We have applied this reasoning in the context of a custodial parent attempting to increase a non-custodial parent’s support obligation and have determined that a non-custodial parent should not be able to avoid an increased support requirement by delaying the hearing or order. See, e.g., id. The same logic leads us to conclude that custodial parents who are faced with an inevitable decrease in the non-custodial parent’s support requirement should not, by delaying the entry of the order, be permitted to collect money not required for the support of a child. To hold otherwise would fly in the face of the changed circumstances rule and would encourage and benefit dilatory tactics in custodial parents who are served with a petition to decrease support.

For all these reasons, we hold that Father should be able to recover the overpayments that Mother received. However, we limit our holding to the facts of this case, where 1) the petitioning parent has stayed current on his support obligation such that little arrearage exists; 2) the petitioning parent continued to follow the trial court’s previous order despite a change in circumstances justifying a decrease in the support obligation; and 3) the trial court modified support to a time after the petition was filed....

The Court of Appeals balances a lot of concerns in these preceding paragraphs. Some concerns apply only to the parties and some apply to the wider world. Notice in the last paragraph how the Court of Appeals limits the application of this case to other cases. I have never seen facts quite like these and I suspect that this will be a truly rare sort of case. That is its application to the wider world. For the people involved, I have no doubts that it was very important. The Court of Appeals sorted out the problems presented by the facts and set the matter back to running as it was supposed to function. Perhaps, the better analogy is to a auto mechanic tuning up a car. Such is family law.