Krysten A. Overly v. Mark E. Overly (mem. dec.)
29A02-1609-DR-2192
| Ind. Ct. App. | Feb 17, 2017Background
- Krysten Overly (Mother) and Mark Overly (Father) divorced in 2014; decree awarded Mother sole physical custody, shared legal custody, and required Father to pay $155/week child support plus various expense-sharing obligations.
- Mother later filed contempt motions alleging Father failed to pay child support and other obligations; Father was held in contempt in Sept. 2015.
- Father petitioned to modify parenting time and child support in Oct. 2015, claiming changed circumstances.
- At an April 2016 hearing the court found changed incomes for both parties and recalculated support under the Indiana Child Support Guidelines: it ordered Mother to pay Father $118/week (retroactive to Oct. 23, 2015).
- The court also found Father owed Mother roughly $21,947 (including $5,401 in arrears and other unpaid obligations), entered two judgments in Mother’s favor, and ordered payment plans and fee awards.
- Mother appealed, arguing (1) the court erred in ordering a custodial parent to pay support to the noncustodial parent and (2) the court should have deviated from the Guideline amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a custodial parent can be ordered to pay child support ("negative support") | Mother: custodial parent should not be required to pay support; relies on Grant v. Hager presumption against custodial parent payments | Father: (not briefed) Guidelines control and produce the ordered result | Court: Application of amended Guidelines controls; custodial parent may be ordered to pay if Guidelines dictate; no error in ordering Mother to pay $118/week |
| Whether the trial court should have deviated from the Guideline amount | Mother: even if Guidelines produce negative support, court should deviate because Father owes large arrearages and has been contemptible/unreliable | Father: (not briefed) adherence to Guidelines appropriate | Court: Affirmed $118/week but remanded to direct Mother’s payments to be applied against Father’s $21,947.09 debt until satisfied and to eliminate Father’s $100/week payment toward his arrearage |
| Proper treatment of accrued arrearages and mutual obligations | Mother: seeks enforcement and judgment for Father’s unpaid obligations; requests offsets or application of payments | Father: (not briefed) earlier orders required him to pay; held in contempt | Court: Entered judgments totaling amounts owed to Mother; instructed that Mother’s ongoing support payments be applied to Father’s debt; ordered Father’s prior $100/week arrearage payment eliminated |
| Standard of review with no appellee brief filed | Mother: N/A (appellant) | Father: did not file brief | Court: Applied less stringent review (prima facie error standard) and found no reversible error on Guidelines application but exercised remedial modification on remand |
Key Cases Cited
- Bogner v. Bogner, 29 N.E.3d 733 (Ind. 2015) (child support calculations are presumptively valid)
- Grant v. Hager, 868 N.E.2d 801 (Ind. 2007) (historical presumption against requiring custodial parent to pay support to noncustodial parent)
- R.B. v. K.S., 25 N.E.3d 232 (Ind. Ct. App. 2015) (2010 Guideline amendments supersede Grant and permit custodial-parent payments when Guidelines dictate)
- Fowler v. Perry, 830 N.E.2d 97 (Ind. Ct. App. 2005) (when appellee does not file brief, court applies less stringent standard of review)