MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[1] The Title IV-D Commissioner for Putnam Circuit Court determined that Cade Gibson (“Father”) had overpaid child support and credited the overpayments to his future child-support payments. Emily Gibson (“Mother”) now appeals, arguing the Title IV-D Commissioners order is a “nullity” because it is not signed by the judge and that Fathers overpayments were voluntary and therefore cant be credited to his future child-support payments.
[2] We agree with Mother that the Indiana Code requires the Title IV-D Commissioner for Putnam Circuit Court to make findings of fact and recommendations for the judges approval, which didnt occur here. However, because we find that the record is not sufficiently developed on the issue of whether Fathers overpayments were voluntary, we remand this case to the trial court.
Facts and Procedural History
[3] Mother and Father have one child, who was born in November 2005. In June 2010, the parties’ marriage was dissolved in Putnam Circuit Court. Father was ordered to pay Mother $105 per week in child support plus an additional $25 per week until his arrearage of $1,671.30 was satisfied.
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[4] Over thirteen years later, on October 2, 2023, the Putnam County Prosecutors Office through its Title IV-D prosecutor entered an appearance in the divorce case “as Assignee of the Support Rights of [Mother] for the issue of Child Support only.” Appellants App. Vol. II p. 24. The Title IV-D prosecutor also filed a petition to modify child support. See id. at 25.
[5] A hearing was held before Trudy Selvia, Title IV-D Commissioner for Putnam Circuit Court, on November 6. The Title IV-D prosecutor and caseworker as well as Mother and Father (both unrepresented) appeared. The caseworker testified that after the State filed the petition to modify child support on October 2, it learned that Father had been overpaying child support. The caseworker explained that an error was made in 2010 when Fathers child-support amount was entered into the “ISETS system.” See Tr. Vol. II p. 5. Rather than entering $105 per week plus an additional $25 per week until the arrearage was satisfied, $130 was entered. Id. at 6, 20. According to the caseworker, this meant that Father had been “paying the $130 all this time.” Id. at 6. As of October 27, 2023, Fathers overpayment balance was $17,775.80.
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[6] Upon learning this information, Commissioner Selvia said that the “best course of action today would be to terminate any child support order moving forward since Mothers been overpaid.” Id. at 7. Commissioner Selvia asked Father if he was “aware” of the overpayment, and he said he had just learned about it two weeks ago. Id. Commissioner Selvia continued the hearing to January 2024.
[7] At the second day of the hearing on January 22, the Title IV-D prosecutor and caseworker as well as Mother and Father (both still unrepresented) appeared again. The Title IV-D caseworker confirmed that Father had not been paying child support since the last hearing and therefore his overpayment balance had decreased some. Based on Mothers and Fathers employment situations, Commissioner Selvia ruled that Fathers child-support obligation should be increased from $105 per week to $182 per week retroactive to October 27, 2023. See Appellants App. Vol. II p. 5 (Jan. 22, 2024 CCS entry). Based on the new amount and the fact that Father was no longer paying child support, the court calculated that Fathers overpayment balance would be down to around $7,500 in November 2024 when the child would become emancipated. Id. at 5-6 (Jan. 22, 2024 CCS entry). Commissioner Selvia said that she would set a review hearing for November 2024 so they could calculate Fathers exact overpayment balance and determine whether to enter a civil judgment against Mother for that amount. Tr. Vol. II p. 37.
[8] Three days later, an attorney entered an appearance for Mother and filed a motion to correct error. In the motion to correct error, Mother argued that Fathers overpayments were voluntary, which meant that any extra he paid was a gift to the child and could not be credited to his future child-support payments. The State opposed the motion to correct error, claiming that the overpayments were not voluntary and thus the court properly credited Fathers future child-support payments against his overpayment balance. No hearing was held on the motion to correct error.
[9] On February 15, a CCS entry was made that Mothers motion to correct error was denied. See Appellants App. Vol. II p. 6. Also on February 15, Commissioner Selvia issued an order titled “Order on Petition to Modify Support Hearing.” This order essentially repeats the CCS entry made on January 22 and does not address the motion to correct error or whether Fathers overpayments were voluntary. See id. at 8.
[10] Mother now appeals. Father does not participate. The State has filed an appellees brief on behalf of the Putnam County Prosecuting Attorney.
Discussion and Decision
I. A Title IV-D commissioner in Putnam County does not have the same authority as a magistrate
[11] Mother first contends that the February 15, 2024 “Order on Petition to Modify Support Hearing” is a “nullity” because it is “not signed by a Judge.” Appellants Br. p. 10. Indiana Code section 31-25-4-15, which governs Title IV-D proceedings, provides:
(a) The judge of a court having jurisdiction over actions arising under Title IV-D of the Social Security Act (42 U.S.C. 651) shall, when necessary to satisfy the federal requirement of expedited process for obtaining and enforcing support orders (42 U.S.C. 666(a)(2); 42 CFR 303.101), appoint assistants who meet the standards established by the judicial conference of Indiana under subsection (d), including:
(1) court commissioners;
(2) hearing examiners;
(3) masters; and
(4) referees;
to make findings of fact and recommendations for the judges approval in actions arising under Title IV-D of the Social Security Act (42 U.S.C. 651 et seq.).
(Emphasis added). Here, it is undisputed that the February 15, 2024 order is signed only by Commissioner Selvia and does not contain the judges approval. See Appellants App. Vol. II p. 9.
[12] The State doesnt acknowledge Section 31-25-4-15. Instead, it claims that Commissioner Selvia had the authority to issue the February 15, 2024 order because: (1) magistrates have the same powers as judges, Appellees Br. p. 11 (citing Ind. Code § 33-23-5-8.5), and (2) “magistrates and commissioners have identical authority,” id. (citing Capehart v. Capehart, 771 N.E.2d 657, 662 (Ind. Ct. App. 2002)). The problem with the States argument that magistrates and commissioners have identical authority is that it relies on a case that addresses a statute for Marion County only. Indiana Code section 33-33-49-15, which addresses the court system in Marion County, provides that “a commissioner appointed under this chapter has all of the powers and duties prescribed for a magistrate under IC 33-23-5.” I.C. § 33-33-49-15(d). There is no similar statute for Putnam County. See Ind. Code ch. 33-33-67. Accordingly, a Title IV-D commissioner in Putnam County does not have the same authority as a magistrate and must make findings of fact and recommendations for the judges approval.
[13] In any case, as explained below, we are remanding this case to the trial court on the second issue that Mother raises on appeal.
II. The record is unclear as to whether Fathers overpayments were voluntary, so we remand the case
[14] Mother next contends that Father overpayments were voluntary and therefore cant be credited to his future child-support payments. “The well-established rule in Indiana is that overpayments of child support are generally viewed as voluntary and gratuitous.” Eisenhut v. Eisenhut, 994 N.E.2d 274, 276 (Ind. Ct. App. 2013). “Voluntary overpayments of child support are properly treated as [gratuities] to the children and no credit is granted.” Carpenter v. Carpenter, 891 N.E.2d 587, 600-01 (Ind. Ct. App. 2008) (quotation omitted). But this rule does not “fully apply” where a parent does not voluntarily build up a substantial credit. Id. at 601. Therefore, where an overpayment is not voluntary, the amount may be credited to future child-support payments. Id.
[15] The State asserts that Fathers overpayments were not voluntary because an error was made when his child-support amount was entered into the ISETS system. While Mother doesnt dispute that an error was made, she suggests that Father should have figured out sometime during those thirteen years that the amount he was paying was different from what the divorce decree required him to pay. Notably, the parties did not discuss the case law on overpayment of child support at the November 6 or January 22 hearings. The only evidence in the record on this issue is a brief comment by Father at the November 6 hearing that he had just learned about the overpayment two weeks ago. While Mother raised this issue in her motion to correct error, no hearing was held. And neither the CCS entries nor the February 15 order make any findings as to whether Fathers overpayments were voluntary. Because the record is not sufficiently developed on this fact-sensitive issue, we remand this case to the trial court with instructions to hold a hearing and determine whether Fathers overpayments were voluntary.
[16] Remanded.
FOOTNOTES
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. Father was ordered to pay the amount in cash at the Putnam County Clerks Office or by check or money order to the Indiana State Central Collection Unit. See Appellants App. Vol. II p. 16.
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. The caseworker said she had performed calculations, which she provided to the parties. See Tr. Vol II p. 6. These documents are not included in the record on appeal.
Memorandum Decision by Judge Vaidik
Judges Weissmann and Foley concur.
[17] Weissmann, J., and Foley, J., concur.