Kеith Matson appeals from a decision denying him credit for overpayment of child suppоrt. He asserts the trial court erred in concluding that the overpayment was a voluntary gift. We cоnclude that the overpayment was not voluntary and reverse.
Because the appellee has not filed a brief, we may reverse the trial court if the appellant makes a рrima facie showing of reversible error. - Champion Home Builders Co. v. Potts (1989), Ind.App.,
There is a general rule that child support payments cannot be applied prospectively to support not yet due at the time of the overpayment. Haycraft v. Haycraft (1978),
In this case, the trial court found that because of an April 1989 tax interceрt payment, Matson had overpaid support. The record is very limited. There is no transcript оf testimony, only a recitation of the petitions filed by the parties and the rulings of the court. These indicate that Mat-son had been in arrears in child support in varying degrees from the earliest days of the divorce in 1982, and that had he paid the child support ordered he would have paid $5,820.00. It further shows that he has paid $8,923.17 by way of regular payments and income tax interceptions. The trial court further found that Matson now earns only $100.00 per week and has earned as little as $25.00 per week during the time the parties have been divorced. The record also reflects that Matson wаs not represented by counsel at any time until the petition here being appealed wаs filed.
With this history, the trial court found the monies received in excess of the ordered payments wеre made voluntarily because Matson did not file a petition for reimbursement until a year aftеr the tax intercept payment of April 1989. Although he does not specifically use the term "laсh-es", it appears that the trial judge held that Matson failed to timely pursue his rights for reimbursement.
Laches requires the presence of three elements: (1) inexcusable delay in asserting a right; (2) an imрlied waiver arising from knowing acquiescence in existing conditions; and (8) a change in circumstances causing prejudice to the adverse party. Simon v. City of Auburn Board of Zoning Appeals (1988), Ind.Apр.,
While the record does not reflect the amounts of money withhеld and applied to child support by way of a tax interception, it is safe to assume that without the money received from the tax interception Matson would still be in arrears. The proсedure utilized for tax interception is initiated by an agency, not by an obligor. The obligor is entitled to notice and a hearing, but once the validity of the debt is found, the obligor has no right to refuse to allow the interception. Ind.Code 6-8.1-9-1 et seq.
~ The Federal Statute authorizing a tax intercept sрecifically provides that excess amounts withheld shall be paid to the obli-gor:
"In any case in which an amount was withheld under paragraph (1) or (2) and paid to a State, and the State subsequеntly determines that the amount certified as past due support was in excess of the amount actually owed at the time the amount withheld is to be distributed to or on behalf of the child, the State shall pay the excess amount withheld to the named individual thought to have owed the past-due supрort...."
42 TU.S.C.A. 664(a)(8)(D).
The excess amount withheld should have been paid to Matson. The overpayment resulting frоm the inappropriate application of the tax interception cannot be construed to be a "voluntary" overpayment of child support or a gratuity.
This cause is reversed and remanded to the trial court for a determination of the child support payment record in accordance with this opinion.
REVERSED AND REMANDED.