Friday, May 16, 2014

Judge Lynn Murray's miscalculation of child support arrears cost a father $7,025

Recent opinions from the Indiana Court of Appeals continue coming on child support issues coincidental to today's public comment session for amending the Indiana Child Support Guidelines. The latest concerns calculating child support arrears which produced a split opinion.

I like Judge Lynn Murray of the Howard Circuit Court because she gets it about children needing both parents, but I think she got it wrong on calculating the child support payment arrears of Michael Robinson. I am in good company on that miscalculation assessment. In her 15 May 2014 dissent in Paternity of D.M.Y. Judge Margret Robb began, “I agree with Robinson that the trial court erred in determining his arrearage, and therefore I respectfully dissent from the majority opinion affirming the trial court order.”

On June 20, 2012, the trial court conducted a hearing on Robinson’s petitions to modify support, determine arrears amount, and petition to show cause. The trial court found that as of November 16, 2010, Robinson was in arrears of his child support payments in the amount of $21,337.00. At the proceedings, the State introduced evidence about its interception on June 30, 2011 of $7,025.84 out of Robinson’s bank account. Robinson contends though that he was never credited for that amount. The State simultaneously introduced a document showing its calculation of Robinson’s arrears as of December 31, 2011. The exhibit indicates the amount of $7,025.84 as sitting in the clerk of court’s undistributed account. Robinson objected to the admission of the exhibit because “[i]t doesn’t accurately reflect they’ve distributed the money.” On September 4, 2013, the trial court issued its order, establishing Robinson’s arrearage at $13,055.00 as of July 29, 2013. Robinson appealed this determination.

Robinson contends that the trial court erred in its determination of a $13,055.00 child support arrearage because the court neglected to take into account the distribution of $7,025.84 which took place on January 3, 2012. Therefore, he maintains that by crediting the distribution, his proper arrears should be $6,029.16.

In reviewing the judgment, this court must determine whether the evidence supports the findings and whether the findings support the judgment. We will reverse a judgment only when it is shown to be clearly erroneous, “i.e., when the judgment is unsupported by the findings of fact and conclusions entered on the findings.” For findings of fact to be clearly erroneous, the record must lack probative evidence or reasonable inferences from the evidence to support them. Scoleri v. Scoleri, 766 N.E.2d 1211, 1215 (Ind. Ct. App. 2002). Thus to reverse the panel must find that the judgment wasn't supported by the evidence.

In my previous posting -- Indiana Court of Appeals vacates child support order based upon imputed income -- the appellate panel did just that in stating, “This finding is not supported by the evidence and is clearly erroneous.” The trial court order was then vacated. But the panel in Robinson's case didn't make such a ruling. Instead they found that Robinson did not timely appeal because although the immediate order being timely appealed included the miscalculation so did the court's September 18, 2012 order. In accepting the appeal for argument anyway Judges Riley and Bradford indicated that because “at the time the [$7,025] payment was made, Robinson was entitled to credit for it” that Judge Murray had made a correct calculation of his arrears because the credit should have appeared on the Clerk's record of payments.

But did the payment actually get credited to Robinson by the Clerk? Judge Robb didn't think so and she got out her calculator to confirm Robinson's claim. Here is what Robb wrote;
Going back to the November 16, 2010 order—the last order to establish an actual arrearage prior to this most recent order—Robinson’s arrearage was set at $21,337.00. From that date to the date of the most recent hearing, Robinson owed $20,586.00 in child support. His total support obligation was therefore $41,923.00. Howard County Clerk’s Office records show that $15,000.00 from the attachment of Robinson’s savings account was paid toward his child support, a $7,025.84 check received by the Clerk’s Office on June 30, 2011 was released to Young on January 1, 2012, and payments of $8,625.00 were made by Robinson for a total child support payment of $36,039.84. His arrearage therefore should be $5,738.00. The trial court’s determination that Robinson was $13,055.00 in arrears therefore reflects that the $7,025.84 check was most likely not credited to him by the trial court ($13,055.00 - $5,738.00 = $7,317.00, which equates to the $7,025.84 check and two $146.00 weekly payments). In short, the trial court’s math does not add up and I would reverse the arrearage determination.
As for the timeliness of the appeal, Judge Robb says this;
An actual, current arrearage was not established until the most recent order on September 4, 2013, and therefore I believe Robinson’s appeal of that order has timely raised the issue of whether the trial court included the $7,025.84 payment and properly determined his arrearage. I would remand to the trial court to recalculate Robinson’s arrearage with credit for that payment.

In Robinson's case I clearly think that two of three judges on his appellate panel got it wrong. I will be watching to see if he seeks rehearing [a new appellate panel] or transfer [asking the Supreme Court to hear it] and follow-up if he does.

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