IN RE PATERNITY OF P.W.J.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Respondent Phillip William Gray ("Gray"), pro se, appeals the trial court's award of $2,646.65 in child support arrearage to Appellee-Petitioner Linda Sue Schachel ("Schachel"). In part, Gray contests the trial court's determination that his son, P.W.J., was emancipated at the age of eighteen, as opposed to sixteen. The Title IV-D Prosecutor (the "State"),1 on behalf of Schachel, cross-appeals, challenging the trial court's finding that P.W.J. was emancipated at the age of eighteen — rather than twenty-one — without first allowing the State to present additional evidence or assert the claim of laches. We affirm in part and reverse and remand in part.

Issues

On appeal, Gray raises five issues, which we consolidate and restate as:

On cross-appeal, the State challenges the trial court's calculation of Gray's child support arrearage inasmuch as the evidence is insufficient to support the emancipation of P.W.J. at the age of eighteen.

Facts and Procedural History

I. Background: The Paternity Proceeding

On August 3, 1981, Schachel filed a petition to establish paternity, naming Gray as the alleged father of P.W.J., born on November 23, 1976. On June 17, 1982, genetic testing indicated a 98.89% probability that Gray fathered P.W.J. On June 21, 1982, the trial court found Gray to be the father of P.W.J., awarded custody to Schachel, and ordered Gray to pay child support in the weekly amount of $25.00, beginning July 2, 1982. On March 11, 1983, the trial court modified Gray's child support obligation to $20.00 per week and issued a wage assignment.

Subsequently, on September 2, 1984, Schachel filed a contempt petition, alleging that Gray had only "paid a total of $20.00 in child support since the judgment date." Appellee's App. at 24. On May 24, 1985, after conducting a hearing, the trial court found Gray to be in arrears on his child support obligation in the amount of $3,035.00. As a consequence, the trial court sentenced Gray to a suspended term of thirty days and ordered him to "pay something every week or do jail time." Id. at 2 (emphasis in original). The trial court also ordered Gray "to make an assignment of wages for the benefit of his minor children pursuant to Indiana Code Section 31-1-11.5-13(e)."2 Id. at 30.

II. Commencement of the Present Proceedings for Child Support Arrearage

On November 1, 2004, Gray, acting pro se, filed a motion for child support accounting, which provides, in pertinent part:

Id. at 31. On November 12, 2004, the State, on behalf of Schachel, filed a petition to determine arrearage and for entry of interest and judgment lien. On January 10, 2005, the trial court, via Commissioner J. Paul Palguta, conducted a hearing on the cross motions. The trial court did not receive any testamentary evidence, but rather accepted documentary evidence and heard arguments from counsel, including Gray, pro se. At the hearing, Gray argued that P.W.J. resided with him from age sixteen through eighteen and, further, that when P.W.J. turned eighteen, "he was not in school, and he was working for himself, and was living on his own." Jan. 10, 2005 Tr. at 13. In response, the deputy prosecutor asserted:

Id. at 15.

On June 14, 2005, the trial court found Gray to be in arrears on his child support payments in the amount of $5,766.65 as of April 8, 2005, and ordered an income withholding to any income payor, including the Social Security Administration, until such arrearage is liquidated in full. On June 17, 2005, Gray filed a "Motion to Set Aside the Court Order of June 14th, 2005" and a "Motion for Review by the Judge of the Court." Appellee's App. at 89-92. Subsequently, both Gray and the State filed motions to correct error. On July 21, 2005, the trial court, via Judge Theodore Sosin, conducted a hearing on the June 17th motion, which it construed as a motion to reconsider, as well as the cross-motions to correct error. In so doing, the trial court clarified that the parties "are not presenting evidence today, but rather arguing whether or not the evidence that was received by the Court is sufficient to support the ruling." July 21, 2005 Tr. at 3.

Thereafter, on August 22, 2005, the trial court entered an order, finding that P.W.J. was emancipated on his eighteenth birthday and reducing Gray's child support arrearage to $2,646.65. It is from this latter order that the parties now appeal.

Discussion and Decision

A. Right to an Administrative Hearing

On appeal, Gray first argues that the State's failure to comply with the hearing requirement of Indiana Code Section 31-16-15-7(b)(8) violated his due process rights. The Due Process Clause of the United States Constitution and the Due Course of Law Clause of the Indiana Constitution prohibit any state action that deprives a person of life, liberty, or property without a fair proceeding. See U.S. CONST. amend. XIV; see also IND. CONST. art. 1, § 12.

In recognition of an obligor's due process rights, Indiana Code Section 31-16-15-7 requires a Title IV-D agency, such as the State in this case, which intends to implement an income withholding order, to send written notice to the obligor. Such notice must contain a statement of the following:

In his appellant's brief, Gray appears to contend that his due process rights were violated when the trial court entered the January 10, 2005 order because the State had not complied with the administrative hearing requirement of Indiana Code Section 31-16-15-7. In so arguing, Gray acknowledges that a wage assignment was ordered on March 11, 1983 and, again, on May 24, 1985. However, he asserts that the income withholding order terminated or became inactive when Schachel and P.W.J. moved to Florida. See, e.g., Ind. Code § 31-16-15-22(b) ("Activation of income withholding terminates when the whereabouts of the child and the child's custodial parent are unknown, preventing the forwarding of child support payments.").

Apart from his trial argument that, at some point, Schachel moved to Florida and the State was unable to locate her, Gray has failed to present any evidence that Schachel's whereabouts were unknown such that the State was unable to forward the child support payments. Because Gray has failed to demonstrate that the income withholding order terminated or became inactive, the procedural notice requirements of Indiana Code Section 31-16-15-7 are inapplicable to the case at bar. As a consequence, Gray has failed to demonstrate that his due process rights were violated.

B. Admission of P.W.J.'s Affidavit

Next, Gray contends that the trial court abused its discretion by excluding the affidavit of P.W.J. The admission of evidence is entrusted to the sound discretion of the trial court. Thurman v. Thurman, 777 N.E.2d 41, 43 (Ind.Ct.App.2002). We will find an abuse of discretion only where the trial court's decision is against the logic and effect of the facts and circumstances before the court. Id.

Here, the affidavit in question is typewritten and unsigned. While P.W.J. is the alleged affiant, anyone including Gray could have typed the affidavit and, thus, it does not constitute competent evidence under Indiana Trial Rule 11.3 See, e.g., Brewster v. State, 697 N.E.2d 95, 96 (Ind. Ct.App.1998) (holding that the affidavits submitted by a criminal defendant, which were not signed, do not constitute admissible evidence). Rather, under Rule 11, the unverified affidavit would require "other or greater proof on the part of the adverse party." Gray failed to provide such other or greater proof and, thus, the trial court did not abuse its discretion by excluding P.W.J.'s affidavit.

C. Child Support Arrearage

Gray also challenges the trial court's order finding a child support arrearage of $2,646.65. Decisions regarding child support generally rest within the sound discretion of the trial court. Smith v. Smith, 793 N.E.2d 282, 284 (Ind.Ct.App. 2003). We will reverse such a determination only if there has been an abuse of discretion or the decision is contrary to law. Id.

In the case at bar, Gray contests the arrearage amount for two reasons. First, he asserts that P.W.J. was emancipated at the age of sixteen, rather than eighteen. Second, he contends that the trial court failed to credit him for the time P.W.J. resided with him. We separately address each contention.

1. Emancipation

It is well settled that the duty to support a child terminates upon a child's emancipation. Indiana Code Section 31-16-6-6 governs the emancipation of minors, and provides, in pertinent part:

What constitutes emancipation is a question of law, but whether there has been an emancipation is a question of fact. Young v. Young, 654 N.E.2d 880, 883 (Ind. Ct.App.1995), reh'g denied, trans. denied. Emancipation cannot be presumed, but must be established by competent evidence. Id. The petitioner seeking emancipation has the burden of proving that the child is emancipated. Id.

At trial, Gray argued that P.W.J. was emancipated when he turned eighteen. On appeal, however, he contends that the emancipation occurred in January of 1993, when P.W.J. was sixteen. Specifically, in his appellant's brief, Gray maintains: "The Appellant has established, by his own testimony and the Affidavit of [P.W.J.] . . . that [P.W.J.] meet [sic] the [c]riteria for [e]mancipation" as enunciated in Indiana Code Section 31-16-6-6(a)(3)(A-C). Appellant's Br. At 11. The record reveals, however, that Gray presented no evidence at trial regarding P.W.J.'s early emancipation. Rather, the trial court merely heard argument from Gray that: (1) P.W.J. resided with him between the ages of sixteen and eighteen; (2) P.W.J. got into legal trouble while he was living or staying with Schachel and was ordered to Camp Atterbury sometime between 1994 and 1997;4 and (3) when P.W.J. turned eighteen, he was not in school, was working for himself, and was living on his own. These arguments, which are facially inconsistent,5 do not constitute competent evidence sufficient to prove that P.W.J. was emancipated prior to his eighteenth birthday.6

The State cross-appeals the trial court's determination that P.W.J. was emancipated at the age of eighteen, as opposed to twenty-one, contending that the doctrine of laches precludes Gray from arguing an early emancipation date. "Laches is neglect for an unreasonable length of time, under circumstances permitting diligence, to do what in law should have been done." Knaus v. York, 586 N.E.2d 909, 914 (Ind.Ct.App.1992). In addition, "there must be unreasonable delay and prejudice to the opposing party." Id. In general, the doctrine of laches does not apply to child support cases. See, e.g., Trent v. Trent, 829 N.E.2d 81, 87 (Ind.Ct. App.2005) (noting that laches does not apply to an action to recover a child support arrearage). This is so because Indiana courts will not penalize a child for his or her parent's delay in pursuing child support. See, e.g., Connell v. Welty, 725 N.E.2d 502, 506 (Ind.Ct.App.2000); see also In re Truax, 522 N.E.2d 402, 407 (Ind.Ct.App.1988), trans. denied.

However, the policy behind the general rule that laches will not bar a parent from collecting child support is not implicated on these facts, where a father attempts to emancipate a child merely to reduce the amount of child support arrearage that he owes to that child. Here, the record demonstrates that approximately seven years after P.W.J. was statutorily emancipated, and approximately ten years after P.W.J. was allegedly emancipated, Gray sought to reduce his child support obligation or arrearage by arguing emancipation. Because the trial court did not consider any evidence, or argument for that matter, regarding whether Schachel was prejudiced by the unreasonable delay, we remand for the trial court to conduct a hearing and determine if Gray's contention that P.W.J. was emancipated prior to the age of twenty-one is barred by laches.

2. Credit

Further, Gray argues that he is entitled to credit for the three-year period that P.W.J. allegedly resided with him. In general, "an obligated parent will not be allowed credit for payments not conforming to the support order." O'Neil v. O'Neil, 535 N.E.2d 523, 524 (Ind.1989). However, there are exceptions to the general rule. See In re Marriage of Baker, 550 N.E.2d 82, 87 (Ind.Ct.App.1990). In DeMichieli v. DeMichieli, 585 N.E.2d 297, 302 (Ind.Ct.App.1992), disapproved of on other grounds by Pettit v. Pettit, 626 N.E.2d 444 (Ind.1993), for example, another panel of this Court held that a credit will be allowed:

Id.; see also Isler v. Isler, 425 N.E.2d 667, 670 (Ind.Ct.App.1981). This Court has also recognized that the conduct of the parties may create an agreement by implication, i.e., an implied contract, with respect to a custodial agreement in the absence of a written contract. Smith, 793 N.E.2d at 285. An implied contract is equally as binding as an express contract. Id. (citations omitted).

Turning to the circumstances here, Gray has failed to prove the existence of an express or implied contract between himself and Schachel regarding the custodial arrangement for P.W.J. Again, apart from self-serving arguments made by Gray, the record is devoid of any evidence of such an agreement. See, e.g., Naggatz v. Beckwith, 809 N.E.2d 899, 905 (Ind.Ct.App. 2004) (Bailey, J., dissenting), trans. denied; see also Kuester v. Inman, 758 N.E.2d 96, 100 (Ind.Ct.App.2001) (differentiating between evidence and argument of counsel).

Moreover, the arguments presented by Gray are conflicting. At times, for example, he argued that P.W.J. resided with him until the age of eighteen. Later, however, he admitted that, in 1994, he got arrested while living with his mother. At other times, Gray argued that P.W.J. was emancipated at the age of sixteen. Because Gray failed to demonstrate a change in the custodial arrangement, he was not entitled to credit against the arrearage in child support. Accordingly, the trial court did not err by refusing to give Gray a credit.

D. Damages

Lastly, Gray argues that the trial court erred by not awarding him damages in the amount of "$555,000+." Appellant's Br. at 14. However, Gray has failed to support his argument with cogent reasoning as required by Indiana Appellate Rule 46(A)(8)(a).7 Therefore, Gray has waived his contention regarding damages on appeal. See, e.g., Flowers v. Flowers, 799 N.E.2d 1183, 1187 (Ind.Ct.App.2003).8

For the foregoing reasons, we reverse the trial court's finding that P.W.J. was emancipated at the age of eighteen, as well as its determination that Gray is in arrears in child support in the amount of $2,646.65. We remand for the trial court to conduct a hearing regarding whether Gray is barred by the doctrine of laches from arguing that P.W.J. was emancipated prior to the age of twenty-one. In all other respects, we affirm the trial court.

Affirmed in part, reversed and remanded in part.

KIRSCH, C.J., and CRONE, J., concur.