Thursday, August 6, 2009

Indiana Court of Appeals Orders Shared Parenting Against Parents Wishes

To everyone who has wanted their children to live in a Shared Parenting arrangement and been denied, you may find hope in this recent case. But don't take too much comfort; it is an unpublished opinion. Published opinions are those that can be used as precedent which are known as case law and bind judges in the future to follow their directives.

The Father, Mark Jones, appealed the trial court's decision on three grounds which the court restated as follows: 1) whether the trial court’s refusal to modify the custody arrangement was clearly erroneous; 2) whether the trial court’s omission of guidelines for contacts with the maternal grandfather was clearly erroneous; and 3) whether the modified child support obligation of $130 per week was clearly erroneous.

The first issue, which relates to Shared Parenting, is the most interesting one. Jones and Marlene Huckaby (“Mother”) dissolved their marriage in an agreed pro se petition on March 18, 2002. They agreed to joint custody of both children, T.J. born in 1998, and L.J. born in 2001. Mark and Marlene essentially alternated nights and weekends. Marlene would also care for the children if Mark was at work.

Each parent filed a petition to modify custody requesting sole custody. The father first filed and an agreed judgment was made with child support payments to be determined later. Mother then filed a petition to modify custody. The court set the matters for hearing which took two days.

Both parents acknowledged that the back and forth arrangement is a bit tiresome and the children need stability and consistency. However, Mother and Father live within blocks of one another. The trial court even noted that the close proximity makes the “back and forth thing work better.” This situation provided some difficulties but was workable in the court's mind. The trial court even pronounced that “the best thing for the children is to have some sort of continuing joint custody”.

Stop smacking yourself in the face. You are awake and I am telling you the truth. I know it is unbelievable and likely left you confused so I will state this clearly. Judge Chris D. Monroe of the Bartholomew Superior Court said, “The best thing for the children is to have some sort of continuing joint custody.” So much for saying that Shared Parenting is only feasible when both parents agree to it.

Mark contends that the trial court erred in maintaining a Shared Parenting arrangement. The court disagreed and in its ruling said that it was not clearly erroneous for the trial court to decline to award either parent primary physical custody. The trial court instead opted to allow the parents to continue their joint custody and suggested they adjust the arrangement.

The third issue raised by Mark was child support payments. The trial court calculated that Mark’s child support should be increased to $130 per week based on its Indiana Child Support Guidelines (“the Guidelines”) calculation. The trial court also ordered that Marlene should pay the first $805 of annual uninsured medical costs and sixteen percent of costs thereafter. The court came to the $130 figure by averaging two amounts.

The trial court calculated the amount Father would be designated to pay under the Guidelines to be $149.36, with his credit for 183 overnights. It then calculated the amount Mother would be paying, if she was designated to pay, with a credit of 183 overnights, which resulted in a negative number of -$110.66. Because each of these numbers took into account 183 overnights with either parent and did not result in Mother paying support, the trial court opted to order Father to pay an average of the two, $130.

The case demonstrates the clear fallacy with the "child support" payment guidelines that many of us have been complaining about for years. If it hasn't jumped off the page at you yet then let me explain it you this way. Let's say Mark and Marlene each had a laundromat in town and each bought 183 little boxes of soap each week. However, the supply gives a price-break on orders over 300 units. So Mark and Marlene decide to combine orders. There are two ways they could settle the payments.

The simplest way to do this would be Mark buys them one week and Marlene buys them the next week. Each goes to the other's place to pick up his or her share. But there is a more complicated bureaucratic way which the courts prefer. They could each pay half each week with one reimbursing the other. So, they get out their "Indiana Court Calculator" to get an exact figure. When Mark orders the 366 boxes of soap the calculator says he is to pay Marlene $149.36 for his half. When Mark order's the 366 boxes of soap the calculator says he will receive $110.66 from Marlene for her half. The court reasoned that if Mark pays $149.36 for his half and gets $110.66 credit for Marlene's half then the total cost must be $260 which half of is $130.

Now you are asking yourself how can the Indiana Child Support Calculator determine that when physical custody is split equally can the amount a parent is ordered to pay not be the same as what the other is to receive? It's called starting with a desired result and then trying to craft a way to achieve it. You name the higher income parent as the NCP and he is calculated to pay $149.36. You name the lower income parent as the NCP and she is calculated to be owed $110.66.

The Child Support worksheet requires that one parent be designated as the custodial parent. This is for the purpose of assessing "fixed costs" which is shown at the bottom of the worksheet as uninsured medical care. 6% of the child's expenses are assumed to be for uninsured medical care. Thus, one of the parents pays support and the other pays those fixed costs. I used the child support payment calculator to determine support for a hypothetical family. Whether the mother or father was selected as the NCP the figures remained the same. Each parent earns $500 per week and has no other support orders. The calculator determined the support of the child to be $152 per week. 6% of this is $475 for the year. The NCP would pay to the CP $11.40 per week or $593 per year. There are also some other fixed costs such as school textbook rental that a parent could encounter. So, all-in-all it appears that the calculator provides a somewhat even distribution of costs.

After the CP pays the first $475 of uninsured medical care the parties pay pro rated amounts based upon their share of the support. In this case each would pay 50%. Why have this 6% formula there to begin with though? It is one way of providing a windfall to the custodial parent when the full amount of the uninsured medical is not used. There is already a formula established by which the parents split uninsured medical cost after the base amount paid by the CP. That assessment should be applied for all uninsured medical cost. This is the fallacy in the guidelines that leads to two different amounts when equal Shared Parenting is in place.

Since the Indiana Supreme Court wants to receive as much federal incentive payments for the amount of child support payment ordered then they have crafted a calculator to do just that. As the trial court pointed out during the hearing, the Guidelines do not advise a method for determining support in a joint custody arrangement. The Guidelines do not advise a method for determining support in a joint custody arrangement. That is not a typo - I wanted you to see it twice. The Indiana Supreme Court is so opposed to Shared Parenting that they won't even contemplate figuring child support payments under that possibility.

The court ultimately found that the figures used to make the calculation are supported by the record and the result is not contrary to law. Given the discretion of the trial court in determining child support, its decision here is not clearly erroneous. See In re Paternity of E.C., 896 N.E.2d 923, 924 (Ind. Ct. App. 2008). The decision of the trial court is affirmed.

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