*1 pre-imposi- propriety the issues that recognize did Department The penalty recoupment of hearing and impos- tion it would cireumstances some erred, court The trial timely raised. gible Ac report. were the historical timely file Depart- find that however, failing to in promulgated Department cordingly, the supported were notice findings filing ment's a 5-4.1-5(f), which T.A.C. The cireumstances evidence. showing of substantial upon a extension "full and a filing" and was entitled timely CHM a that preclude in "that erred recoupment hearing and an ex pre-imposition reasons a explanation complete have, but could necessary." CHM penalty. is tension The an extension5 not, request such did trial court remand We reverse this that insure imposed to penalty stiff Depart- of the in favor entry of timely filed. document essential ment. argued CHM part. in reversed part Affirmed when penalty a imposing that accepted, Initial higher is Rate Base NAJAM, J., concurs. because sense not make Rate does Interim two J., to issue CHEZEM, dissents any finan- not "suffer does Department issues all other as to in result concurs there- impact" negative other harm or cial separate opinion. a without ignores argument This from. just mone- Department The rate. setting of tary interest duty to set statutory has a Department requires the rates, duty which
reasonable report. historical filing timely Maxwell Yon provision penalty of the intent Appellant- BECKLER, clearly to insure is 5-4.1-5 470 LAC. Respondent, to facili report historical filing of the timely Recoup setting of rates. accurate tate the intent. contrary this is penalty of the ment HART, Louise Diane provide not simply does LA.C. 5-4.1-5 Appellee-Petitioner. read we will recoupment, No. 02A03-9410-CV-395. Ac regulation. into provision type allowing Indiana. the trial Appeals cordingly, Court recoupment.6 such 12, 1996. Feb. CONCLUSION correct The trial of whether waived Department 5- LA.C. that 470 points out CHM note that 6. We the extension that correctly points out
5. CHM "[rleim- that 4.1-4(d)(3) specifically 5-4.1-5(f) only in appears LA.C. in 470 allowed failure penalty [for ac- because regulation. CHM lost bursement version the 1988 be recov- regula- report] cannot timely an annual version file knowledges the 1988 that appli- that contends have CHM provider." that version is the ered 5-4.1-5 LA.C. CHM language filing. However, in 470 of such omission cable ren- regulations were did Department that contends an indication injunction issued by an inapplicable penalty for dered recoupment of to limit intend May report. timely historical file the failure LA.C. 5- version of the 1988 We find statutory the rules one of aware We are 4.1-5(f) rendered was not a conclusion. such allow for construction injunction was effect injunction. The in an interpre- rule results "tests of using certain we find state prohibit regulation. intent applica- reasonableness;" tation hinder did not it Ind. a whole. regulations as Ind., (1993), Tioga Pines Public Bd. Welfare *2 Rorick, Wayne, Appel- Dennis L. Fort lant. Carter, Attorney General,
Pamela Frances Barrow, General, Deputy Attorney Indianap- olis, Appellee.
OPINION
HOFFMAN, Judge. Appellant-respondent Yon Maxwell Beck- (Beckler) appeals granting ler from the of his petition to declare his child appeal The facts relevant to this are summa- rized below. 25, 1980, February County
On
the Allen
dissolving
marriage
court issued a decree
of Beckler and Diane Louise Beckler Hart
(Hart).
granted custody
Hart was
of their
child,
pay
and Beckler was ordered to
per
the amount of $31.50
22, 1992,
January
pursu-
week.
orOn
about
wage withholding
ant
to a
Beckler's
employer was ordered to withhold from his
week,
pay
per
for child
$51.50
$31.50
$20.00
$6,342.00.
Beckler filed
to declare the child
apply support paid
hearing,
June
1994. After a
court entered an order which found the child
emancipated having
removed herself
from her custodial
Hart's residence in
court also ordered the
terminated,
effective June
petition.
the date Beckler had filed his
appeals.
Beckler now
of an obli-
missible
is whether
review
raised
The sole
payments.
duty to make
gor's
peti-
granting
Donegan, 605
to declare
Donegan
termi-
stated
holding Beckler's
(Ind.1992),
supreme
our
change
of circumstances
nated
a claim
unlike
*3
was
an
support,
child
date
child
of
than
modification
requiring
rather
effective
deemed
emancipation is
have been
of
assertion
than
rather
emancipation,
of
the date
as of
are
support
child
proper
Duties of
at 188.
filing.
Id.
date
discere
sound
court's
trial
to
committed
parental
terminating a
noted
an abuse
only for
be disturbed
will
tion and
of a
emancipation
to
obligation due
support
Ol
to
ifor
discretion
of that
impermis
an
constitute
child does
(Ind.Ct.
1386, 1388
Olson, 445 N.E.2d
v.
son
support
sible
the ob
terminates
Emancipation
App.1983).
1066,
Ross,
N.E.2d
Id.;
v.
Ross
support
to
noneustodial
ligation
termi
(emancipation
(Ind.Ct.App.1979)
care,
from
child
frees the
child
by
order
support
force
legal
nates
parents.
her
his or
control
custody, and
is,
parental
terminating the
n. 1
Brown,
N.E.2d
v.
Brown
requiring
case law
contrary to
therefore, not
emaneci-
constitutes
What
(Ind.Ct.App.1991).
see
prospective);
modifications
law,
question
is a
child
a minor
pation
592, 596
N.E.2d
Kirchoff, 619
emancipation
an
been
has
there
but whether
(although modification
(Ind.Ct.App.1993)
Free, 581
Free
fact.
question
is a
emancipa
to child's
due
child
As a
(Ind.Ct.App.1991).
996, 997
N.E.2d
of emanci
the date
as of
be effective
can
duty to
parent's
obligated
rule, the
general
chil
unemancipated
or
if one
pation,
happening
upon
ceases
a child
support
support
by
covered
are also
dren
emancipa
1)
child's
events:
of two
one
the re
support
duty
parent's
obligated
2)
child
minor; or
yet
while
according to terms
children
maining minor
Brown,
years.
age of
full
reaching the
in same
continues
order
support
original
at
N.E.2d
amount,
time
manner,
Ed.)
(1998
31-1-11.5-12(d)
sup
duty to
§
parent's
until
original
IND.CODE
order
fur-
modified
emancipation
children
unemancipated
port
conditions
abused
upon
court). Thus,
trial
support terminates
"child
trial
ther
pre-
that Beckler
conditions
its discretion
the court
payments
support
his
to continue
obligated
exist[.]"
this subdivision
scribed
emancipation.
child's
Johnson,
N.E2d
date
after
In the
1333-1334
recognizes,
Additionally,
Beckler
that the
found
explicitly
the date
made
payments
removed
had
self-supporting;
fully
child was
overpayment
an
constitute
residence
Hart's
herself
can
A child
support.
or
the care
not been
1993;
had
prospectively
not be
Nei-
that time.
parent since
of either
control
Holy v.
overpayment.
time
at the
due
child
disputes
ther
(Ind.Ct.App.
44, 45
Lanning, 552
April
since
emancipated
rule is
1990).
rationale
arrearage that ex
to an
totally
asserts
As
ists
was obli
ordering he
discretion
its
abused
by this Court:
explained
up
payments
continue
gated to
overpay-
eredit
failed
rule which
"A
filed,
rather
date
arrearage would
existing
against an
ments
emancipat
became
the child
actual
parents
a disincentive
§ 31-2-11-12
create
IND.CODE
Relying
ed.
delinquent
their
voluntarily fulfill
using the
Ed.),
(1993
counters
Hart
benefit
It would
obligations.
the date
rather
emancipation,
proceeding
judicial
require a
one
no
imper-
an
constitute
reducing
before
STATON,
Judge, concurring.
obligated parent
could be credited for
Majority,
I concur with the
but I feel that
payments against
arrearage.
Further-
emphasized
it should be
principle
that the
more,
reasonable inference from
applies only
law enunciated here
to a similar
overpayment, standing
alone and made
Here,
posture.
factual
there was one child
exists,
at the time an
is that it is
under a
order-not
several. The
payment
arrearage."
on the
child was
and the
support automatically suspended as of the
(non-custodial parent
Id. at 46
entitled to
emancipa-
The date of
support overpayments
have child
credited
question
arrear-age);
tion is a
of fact which
be dis-
against
pre-existing
puted.
It is far better
to have the
(child
Olson,
CHEZEM, J., concurs. STATON, J., opinion. concurs with