Indiana Child Support Guidelines Amendments - Part IV, Parenting Time Credit

2015 Indiana Child Support Guidelines
review scheduled for public comment

This is my fourth posting in a series that I am doing on the Amendments to the Indiana Child Support Guidelines that will take effect 01 January 2010. Part III briefly described the definition of weekly gross income, adjustments and minimum support. Part IV details the following;

Part IV - Changes applicable to Parenting Time
A. Parenting Time Credit
B. Equal parenting time
C. Retroactive modification

A. Parenting Time Credit

It never seemed appropriate that when a noncustodial parent has a bedroom for the child, provides education materials, and also has clothing items and toys equal to those at the custodial parent's house that it is not acknowledged by the court in a credit towards support payments. The Guidelines had previously provided that "[t]he court may grant the noncustodial parent a credit toward his or her weekly child support obligation" for these duplicated expenses.

Such credit was to be applied based upon the child support calculation worksheet. They way I have understood this is that a noncustodial parent may argue that X amount of dollars are spent on these duplicated expenses. If he or she is the earner of 60% of the income then that parent would receive a credit of 40% of those duplicated expenses.

The Amendments provide for one small but substantial change. The word "should" has been added. This is one degree shy of "shall" which is a mandate. This means it still must be demanded. You or your attorney must be aware of this before proceeding in a support modification hearing.

A petitioner seeking modification of a child support order must still meet either the “substantial and continuing” change test or the twenty percent change test to be successful. But the petitioner may apply the parenting time credit to attempt to fulfill either test.  It is not a foregone conclusion that in every case, or even in most cases, that the application of the parenting time credit would result in the fulfillment of one of the applicable tests. Petitioners seeking a modification of a child support order must still meet one of the requisite statutory tests, but they may apply the parenting time credit in an attempt to do so. see Naville v. Naville, 818 NE2d 552, 555 (Ind. Ct. App. 2004).

The modification statute provides in part:
(b) Except as provided in section 2 of this chapter, modification may be made only:
(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

The Guideline Amendments do not in and of themselves create a changed circumstance. However, they may create a change that meets the statutory requirement. You may find attorneys that will tell you that you may not seek a modification unless your circumstances have changed. Do not be discouraged at this point. I can help either you or your attorney understand how these changes affect a petition to modify and what case law will support your petition.

B. Equal parenting time

The first thing I hear from parents who are ordered to pay support when parenting time is shared equally or nearly is a scenario like this. "I don't know why I have to pay support. I have the children half the time, I have a house for them too. I buy clothing. I take them to just as many games. They still eat when they are at my house."

The Guidelines attempt to apportion support based upon income. That is if one parent earns 60% of the total income that parent should provide for the children 60% of the time. If it is only 50% then that parent must pay 5% to the other parent, the difference between the amount earned and the amount of time support is provided.

However, the calculation of support is not that simple. There are certain controlled expenses for which there must be an accounting. Costs such as school books and supplies, health insurance deductibles and other one time fees.

The Guidelines establish equal parenting time as anything where each parent has at least 181 overnights. The court must then determine who will be the parent who pays the controlled expenses. In making that determination the court should consider which parent has primarily been the one who has taken the children to medical appointments, attended or taken the child to school functions, who has traditionally paid those expenses and who has the ability to pay them in the future.

Once the determination of which parent who will pay the controlled expenses has been determined then it is a rather easy application of the guidelines to determine a support payment. It could now be determined that the custodial parent who pays those controlled expenses also pays support to the noncustodial parent.

The Guidelines previously did not provide that a low income noncustodial parent could receive payments to help with support of their children while the noncustodial parent provided care for the children.

C. Retroactive modification

The Guidelines now provide some relief from the child support obligation retroactively. The federal Bradly Amendment forbids judges from modifying support retroactively because of a change in circumstances. This is a difficulty encountered by parents who have been incarcerated or lost a job and never bothered to seek a modification. I cannot stress the importance enough of seeking a modification as soon as a major change happens.

The Indiana Court of Appeals has consistently ruled that support can be modified back to the date of the petition to modify. "It is within a trial court’s discretion to make a modification of child support relate back to the date the petition to modify is filed, or any date thereafter." Quinn v. Threlkel, 858 N.E.2d 665, 674 (Ind. Ct. App. 2006)

The Amendments do allow for two exceptions to the retroactive prohibition. One is when the parents have agreed to and carried out an alternative method of payment that has substantially complied with the spirit of the decree. The other is when the obliged parent takes the child into the obliged parent's home and assumes custody and provides the care for a period of time that it can be determined that a changed of custody has occurred.

You may find judges and attorneys telling you that support cannot be modified until there is a hearing and an order issued and the modification takes place from that day forward. I am currently assisting a parent who is going to seek a retroactive modification based upon one of the two described circumstances. He had already been told by an attorney "You can't do anything about what you were already ordered to pay" which simply shows the ignorance of some attorneys.

For those parties who have agreed to their child support arrangement their is still opportunity for a modification to be determined by the court. Do not feel that you are forever bound by a mutual agreement. The court In re Marriage of Kraft, 868 N.E.2d 1181, 1188 (In. Ct App. 2007) stated “In other words, the fact that a child support order has been entered pursuant to the terms of a settlement agreement, even where, as here, it is intended as forever determinative by the parties, is of no consequence to the question whether the order should subsequently be modified.”.

If you feel that your child support payments are too high then don't wait any longer to seek a modification. It may be best for you to wait until after the Guideline Amendments go into effect or to file the petition now. Please contact me if you would like an assessment of your case and for help in selecting an attorney.

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©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Indiana to research alternatives to incarceration for non-payment of child support

The second session of the Indiana General Assembly Advisory Committee of Child Support and Child Custody met in Room 233 at the State House on Friday 02 October 2009. There was not a quorum of the committee present because of prior obligations of some members but no vote on any issue had been planned.

The recently adopted amendments to the Indiana Child Support Guidelines and execution of paternity affidavits were on the agenda. Jeffrey Bercovitz, director of Juvenile and Family Law at the Indiana Judicial Center was the first to present on the Child Support Guideline amendments. Mr Bercovitz from some feedback about the process that went into the Domestic Relations Committee writing the amendments.

This included receiving public testimony in July of 2008, a period of written public input and numerous meetings of the Committee. The Committee also surveyed judges, attorneys and Title IV-D prosecutors. Dr Jane Venohr from the Center for Policy Research in Denver Colorado was hired as an expert advisor for the Committee.

I spoke on the issue of avoiding incarceration for non-payment of child support orders. Representative Summers had requested at the 25 September meeting that some alternatives to incarceration be addressed.

Failure to pay court ordered child support is rarely the result of refusal to comply with the court's order. Most often it is the result of a change in circumstances, being a loss of employment or an unrelated incarceration. At the time when these parents most need the assistance of an attorney to seek a modification of support they can least afford it. The result is building of the arrears. Instead of helping to eliminate the arrears we have additional punitive measures available for those not paying.

Two years ago one of our members was only paying about half of his court ordered child support payments but then quit paying any because he was fired the day the prosecutor suspended his license. This is a common occurrence that benefits none of the parties. With the help of the organization he was able to get a reinstatement, we found a job for him, his support was reduced to less than half and now 65% of his wages are being garnished.

Virginia has taken a similar approach to child support payment enforcement. In 2008, the Division of Child Support Enforcement established the Intensive Case Monitoring Program (ICMP), an innovative measure to maximize child support collections and decrease incarceration due to non-payment.

Case managers there have helped delinquent support obligers in securing employment, housing, education, and other warranted services. Through June 2009, that program has helped 199 participants and collected more than $175,000 in child support payments, about $900 per person, – an amount significantly higher than the child support paid by the same population six months prior to participation. Also much higher than amounts collected through incarceration. That program costs about 1/3 of every support payment dollar collected but we can easily envision this ratio dropping as the initial investment is spread out over future years of payments.

As unemployment remains high and our economy appears to be headed into decline again we need to think about possible ways to assist in providing support. Can we be creative enough to establish a program where an out of work parent does some type of community service in exchange for vouchers from a food pantry that can be given to the custodial parent?

Will Indiana examine Virginia's program and adopt something similar?

Will Indiana adopt statute that automatically grants conditional drivers license for employment and exchange of the children to those whose license is suspended for not paying support.?

Will Indiana adopt statute that requires the Indiana Department of Workforce Development to notify the court having jurisdiction over a child support order when a parent ordered to pay support begins receiving unemployment compensation?

These are a few of the ideas that I came up with in the past week that may be able to assist those non-custodial parents who don't have the means to pay support but are still facing incarceration. I hope to be able to assist the Committee with any of these endeavors they may wish to pursue.

The next speaker was Mr Beatty who is a non custodial parent and has provided testimony to both committees in the past. He also spoke on the issue of incarceration. He suggested that the State devise a program that provides tax credits to employers of non-custodial parents who are out of work and have a child support arrears.

Mr Beatty explained that a program already exists through Workforce One that provides credits to employers for hiring custodial parents who receive Temporary Aid to Needy Families [TANF]. He also spoke about a program that is similar to this in Delaware County.

The Committee then moved onto the subject of paternity affidavits. Chris Worden, an Indianapolis family law attorney, provided to the Committee copies of his article Rethinking the Paternity Affidavit as it appeared in the May 2009 issue of Res Gestae. Mr Worden reserved his comments to the Committee for the 16 October 2009 meeting so the members would have time to read his article first.

The next meeting of the Child Support and Child Custody Committee will be Friday 16 October 2009 at 9:30 am in room 233 of the Indiana State House.

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Indiana Child Support Amendments - Pt III

2015 Indiana Child Support Guidelines
review scheduled for public comment

This is my third posting in a series that I am doing on the Amendments to the Indiana Child Support Guidelines that will take effect 01 January 2010. Part II covered the issue of the dissent of opinion in this cause which demonstrated the bias that remains in some of our Supreme Court justices.

III - Changes in computing support
Definition of weekly gross income
Imputed income
Adjustment to weekly gross income
Minimum support

Haase v. Roehrscheid, 6 Ind. 66, 68 (1854) “[i]t is the duty of a father to support and educate his minor children”. It has long been held by Indiana's highest court that a man has a duty to support an educate his children. This was reaffirmed by the Court in 2007. In this section on the amended Indiana Child Support Guidelines I am examining what is income, what's the minimum a noncustodial parent is obligated to pay and what adjustments can and should be made to the parent's income.

I am pleased to say that, although the Guidelines do not provide for a realistic level of child support payments, the Guidelines are moving back towards the duty of a father to educate his children and provide support.

Definition of weekly gross income

The definition of income has long included just about everything except using pennies from the tray at the convenience store. The current guidelines include gifts, prizes, inheritance and gambling winnings. This is one of the reasons I recommend that anyone paying court ordered child support not support any lottery, raffle, gaming or other types of gambling. Many states no have laws allowing for the interception of state lottery funds to be applied towards a child support arrears. This is a lose-lose situation. Not only are you out the money you spent on lottery tickets but you support payment amount could be increased because of your higher income.

Another thing that is a whole subject on its own is inheritance. It would be wise to have your parents or whomever has named you as a beneficiary establish a trust for your benefit. One thing you don't want to have happen is that a parent dies and leaves a large inheritance, i.e. income, to you which result in your support payment order being adjusted upward. You'll have to wait at least a year and for a substantial change, such as that person dying again and leaving less to you, for you to get a downward modification.

An addition to the Guidelines is that Social Security disability benefits paid for the benefit of the child must be included in the parent's gross income. The disabled parent is entitled to a credit for the amount of the Social Security disability benefits paid for the benefit of the child. This means that instead of the common practice of support being a pass-through the disability will now be considered the parent's income and a credit for support paid.

Imputed income

There is a valid and justifiable reason to sometimes impute the income a person could be making. A parent works for 15 years at the same job and one week after getting a support order based upon that income quits and goes to work at a convenience store for 1/4 the wages. There the court should impute the income at the prior level.

Take the same person in the same situation working at the family business as he has since dropping out of high school. Suddenly the business files bankruptcy and is liquidated. The court then imputes income at the same rate family was paying this person with no high school diploma and no other job experience. It is wrong for the court to do that.

Take my situation when my support was first figured. I spend two weeks acquiring, photographing and listing items on ebay. I spend two weeks selling the items. Finally I spend two weeks processing payments, packaging and shipping or delivering the items. The court determines that I could do the three separate things simultaneously in the same volume or frequency. The court also concluded that I could avoid paying ebay their fees and that those fees should not offset the income. The court then imputed my income at over three times what it actually was and ordered that I pay 99.7% of my disposable income in support for one child. That was clearly wrong for the court to do.

I brought my situation to the attention of the guidelines committee as did many others with similar stories. Somehow they listened to us. They have added some commentary to the Guidelines that address these issues.

Following the portion which states that another purpose for imputing income is to fairly allocate support when one parent remarries and chooses not to be employed. "However, attributing potential income that results in an unrealistic child support obligation may cause the accumulation of an excessive arrearage, and be contrary to the best interest of the child(ren). Research shows than on average more noncustodial parent involvement is associated with greater child education attainment and lower juvenile delinquency. Ordering support for low-income parents at levels they can reasonably pay may improve parent-child contact; and in turn, the outcomes for their children.

The commentary further cautions that "Discretion must be exercised on an individual case basis to determine whether under the circumstances there is just cause to attribute potential income to a particular unemployed or underemployed parent.

There are two additional factors added to be used in determining imputed income. The first is if the parent is unable to obtain employment because of exceptional circumstances such as a mental illness, other health issue, caring for a disabled child or child care costs make it prohibitive. The second is when the parent is incarcerated.

The Indiana Supreme Court altered long-standing case law in regards to incarcerated parents and imputed income in Lambert v Lambert. The court opined that it is inappropriate to impute an incarcerated parent's pre-incarceration income during the time of incarceration based upon incarceration being voluntarily unemployed. Although some states allow for incarceration to allow for an automatic abatement of support under the Absolute Justification Rule others such as Indiana have viewed breaking the law as being a voluntary action and any resulting unemployment from incarceration as being voluntarily unemployed. In Lambert the Court said, "The choice to commit a crime is so far removed from the decision to avoid child support obligations that it is inappropriate to consider them as identical."

The Court concluded that while incarcerated the parent's income resulting therefrom should be considered in setting support.

One section was also tweaked a bit which is worth noting. "[P]otential income may be determined based upon such factors as the parent's unemployment compensation, job capabilities, education and whether other employment is available." Previously the Guidelines stated the potential income was based upon some factors. Now it may be "determined" based upon those factors. This means that it no longer has to be based on those factors but essentially that those factors can be considered to determined the amount of support.

Also, unemployment compensation was added. This would allow for support to be based upon unemployment compensation rather than imputing income based upon the prior income.

Finally, the consideration of whether employment is available replaced "if" employment was available. This is very subtle but can significantly affect the support amount. "If" is as absolute as day and night. It's almost like saying if the sun is shining versus whether you are in the sunlight. If there are ads in the newspaper then employment is available. Whether employment is available ask if you can get the job.

Adjustment to weekly gross income

This portion has not changed in substance but in wording. The section was wiped out and replaced with clearer language. The percentage adjustments for subsequent children are the same. Now it is a deduction of .065 rather than a multiplying factor of .935. Support obligation of both parents is to be calculated with adjustments to each for children born or adopted subsequent to the prior support order.

Adjustment for health care costs has been removed. Health care is an exclusive section that will be analyzed later.

Minimum support level

The Indiana Guidelines had recommended that minimum child support payment orders be set at $25 per week. One problem in setting this minimum is that it does not take into consideration that the NCP may not be able to afford that amount. As an example let's say the parents have the children exactly half the time each. The mother is designated as the custodial parent. She earns $198 per week while father earns $202. If these were married parents and they spent 25% of their household income on the child then that would be $49.50 for mother and $50.50 for father. Assuming they were each responsible for buying equal amounts of goods for the child, just as in 50/50 custody then that difference of one dollar divided by the two would mean father owes mother $.50. They would each be spending $50 on goods for the child.

Get divorced though and the guidelines change that. Father would pay to mother $25 giving her $74.50 to spend while leaving father with only $25.50 to spend. Yet, each is to buy the same things. That means the father would have to sacrifice spending on himself to instead buy for the child. Mother would then have extra money to spend on herself. This is a manifest injustice.

The Guideline revisions now provide that the court may consider $12 as a minimum. This would still be an injustice in our described situation. The Guidelines do provide that there are situations where the support order may be zero. One is when the NCP has significant parenting time. The Guidelines are also modified to require that a numeric amount of child support shall be ordered.

There is only one reason that can justify entering a child support payment order of $0.00. That is so the clerk's office can collect a $55 per year support fee. Why the Supreme Court feels that a parent who can't afford to pay $1 per week can afford to pay more for a court fee is astonishing.

The Guideline revisions also took away the discretion of judges to order a "specific amount of child support" such as one bag of diapers, two cans of formula and etc per week. Instead judges are now required to enter a numeric amount. It is unfortunate that the Supreme Court has sought to remove the NCP from having more active involvement with the child to being nothing but an ATM even if it does not pay out.

The court provided some reasons that would justify a $0 support order. These include a parent with a mental or physical disability, who is incarcerated, is caring for a disabled child or parent, has a high parenting time credit or has been affected by a natural disaster.

Most states have set their minimum monthly child support at $50 or $12 per week. Economic data suggests that $100 weekly income, which is half of the Federal poverty guideline, is not enough for a parent to live at subsistence level. The Indiana Guidelines had set minimum support at $25 for one child and $50 for two. This would represent 25% and 50% of that parent's income.

The previous recommendation that the court set some numeric amount of support even when a parent has no income has been removed.

The 2009 amendment are a substantial change to the current Indiana Child Support Guidelines. These Guidelines will take effect 01 January 2010. Before seeking a modification of support get appropriate counsel so you know if you should wait until after the changes take effect.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

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Indiana Judge Unlawfully Closes Court to the Public

Upon the retirement of former Boone Superior Court II Judge James Detamore in 2005 Indiana Governor Mitch Daniels appointed former Boone County Prosecutor Rebecca McClure to take that position on 01 January 2006. McClure has since been elected to a six year term while running unopposed.

Indiana has no test for judges. There is a requirement that a candidate for judge must have a law degree and have passed the BAR examination. When a judge makes what can be no less than deliberate and conscious violations of the publics' right to access court records one must wonder if a more stringent qualification is necessary.

The Indiana General Assembly has established a policy that our state shall operate openly and accessible to the people. In doing so they have stated - "A fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information."

What brings about this latest discussion on the openness of the courts is McClure's most recent ruling to deny the public access to a case in her court. In cause number 06D02-0703-OV-0285 McClure made a blanket declaration prior to trial that she believed the Plaintiff's attorney and primary witness.

In a 41 page Motion for Relief from Judgment Pursuant to Rule 60(B) the defendant made accusations that he had been denied procedural due process. The Motion exhaustively cited the court transcript and included 18 supporting documents. Included in the recitation of the transcripts was an argument between the defendant and Judge McClure.

The word-for-word exchange is in the Motion showing that McClure allowed the Plaintiff to use an exhibit that had not been admitted into evidence and told the defendant that he was wrong for objecting to its use. Additionally, the Motion contains numerous other recitations that McClure was fully aware that the proceeding was in violation of due process requirements.

The Motion specifically details how McClure could not have not known of the due process violations and that she made a prejudicial ruling. On 08 September 2009 McClure ordered the Motion sealed denying the public the opportunity to view that pleading.

McClure unlawfully denies the public access to criminal trial

This wasn't the first time McClure has sought to deprive the public of access. In December of 2007 a friend of mine was on trial in McClure's Court. McClure ordered me out of the courtroom for the trial citing a separation of witnesses request by the prosecutor. I was only named as a witness for this purpose and was never called to testify. The prosecutor, once I was ordered out of the courtroom, said I was free to go home as he never intended to call me as a witness. In fact, I had never been served with a subpoena.

That day I filed a request using Indiana's Access to Public Records Act to get a copy of the recordings of the trial. Not for appellate use, since the jury acquitted my friend in well under an hour, but to file a disciplinary complaint against McClure for alleged violations of the Canons of Judicial Conduct during the trial. Prior to trial my friend and I had both been successful in having the Boone County Prosecutor Todd Meyer charged with misconduct in the case.

McClure wouldn't allow a copy of the trial recording to be made available to me or the public. All the documents and details about that can be seen on the Indiana Coalition for Open Government's website. Briefly though, McClure tried to argue that trial recordings are confidential.

In a response dated 14 December 2007 McClure stated, "Pursuant to I.C. 5-14-3-4(a)(8) and Indiana Rules of Court, Criminal Procedure Rule 5, the record you requested is confidential and can not be disclosed to you." That rule shows that it was last amended effective in 1989 and does not make the recording confidential. Clearly McClure was wrong and I was correct. The Public Access Counselor also agreed with me that the court should allow a copy to be made.

Armed with that information McClure still denied to me the right to make a copy of that proceeding. She specifically stated that I could come listen to the recording but could not bring my own recording equipment and that "You will not be permitted to tape record the proceedings". McClure was sued by me on 01 February 2008 for that violation. The case is still pending in Hamilton Superior Court III.

McClure unlawfully denies the public access to complaints against police

Earlier in 2007 McClure had ordered that I could not use the Access to Public Records Act to seek information from the Town of Thorntown about complaints against police officers for stalking or harassing women in town. One officer had already been ordered to stay away from my neighbor and was not allowed to patrol that end of town.

Although the Town of Thorntown had sued me for placing election related signs in my yard critical of the Town Council that suit was in no way related to a request for public records about window peeping police. The Indiana Court of Appeals clearly affirmed this in the case of Kentner v IPEP stating that they didn't care if Kentner requested the records "to supplement his case in the Federal Litigation, or to paper the walls of his house with and write a song about, has absolutely no bearing on whether he is entitled to those documents." This is well known case law within the courts. Thorntown and Judge McClure have both been sued for that violation also.

McClure may not know this but information about the confidentiality of court proceedings can be found in a document titled "Indiana Court Rules - Administrative Rules". These are the rules that judges are to follow in the administration of the courtrooms. Rule 9 provides the guidance to judges about the confidentiality of court records and includes commentary with examples.

McClure unlawfully denies the public access to case pleadings

Now, getting back to McClure's latest denial of the right of Indiana citizens to access public records we shall first examine the portion of Rule 9 allowing a judge to seal a court record which is section (H);

(H) Prohibiting Public Access to Information In Court Records.
(1) A verified written request to prohibit public access to information in a court record, may be made by any person affected by the release of the information.  The request shall demonstrate that:
(a) The public interest will be substantially served by prohibiting access;
(b) Access or dissemination of the information will create a significant risk of substantial harm to the requestor, other persons or the general public;
(c) A substantial prejudicial effect to on-going proceedings cannot be avoided without prohibiting public access, or;
(d) The information should have been excluded from public access under section (G) of this rule.

Attorney for the Town of Thorntown, Cy Gerde, on 31 August 2009 sought to have the Rule 60(B) Motion sealed alleging that it defamed the Town of Thorntown by mailing such to the Court. That would be section 9(H)(1)(b). I have been told that McClure sealed that Motion on 08 September 2009 within a week of receiving Gerde's Motion to Seal. Rule 9(H) continues;

The person seeking to prohibit access has the burden of providing notice to the parties and such other persons as the court may direct, providing proof of notice to the court or the reason why notice could not or should not be given, demonstrating to the court the requestor’s reasons for prohibiting access to the information.  A party or person to whom notice is given shall have twenty (20) days from receiving notice to respond to the request.

Here is where we encounter "Court Math". This was a theory that Einstein worked on exhaustively but could not formulate the theory in a written equation. It goes something like this - The difference of 8 and 1 is equal to the greater of 20 or more than 20 during such time that the sitting judge feels it is in her best interest for it to be so. Einstein made it about this far: X-Y=>20+a~Jf[g/2] The rule continues;

(2) A court may deny a request to prohibit public access without a hearing.  If the court does not initially deny the request, it shall post advance public notice of the hearing.  A court may grant a request to prohibit public access following a hearing if the requestor demonstrates by clear and convincing evidence that any one or more of the requirements of (H)(1)(a) through (H)(1)(d) have been satisfied.  An order prohibiting public access to information in a court record may be issued by the court having jurisdiction over the record.  An order prohibiting public access to information in bulk or compiled records, or in records under the jurisdiction of multiple courts may be issued only by the Supreme Court. 

If you are reading the same words I am then you saw where this rules requires that notice of a hearing be posted. My response characterizes Thorntown's failure to meet the procedural requirements of Rule 9(H). The rule then provides some Commentary;

This section is intended to address those extraordinary circumstances in which information that is otherwise publicly accessible is to be excluded from public access.  This section generally incorporates a presumption of openness, and the need for demonstrating compelling grounds to overcome the presumption.

This is in keeping with the Legislature's stated policy that the functions of government are to be open to the people. Next comes an interesting note;

Parties should be aware that their request is not retroactive.  Copies of the public record may have been disseminated prior to any request, and corrective action taken under the provisions of this rule will not affect those records.

What makes this interesting is that Cy Gerde has prepared a motion to have me held in contempt for posting that Rule 60(B) Motion on the Internet. You may want to download it just in case it does get lawfully sealed. On second thought that really isn't necessary. The Rule 60(B) Motion was uploaded here before it was filed with the Court.

Notice requirements for this section correspond to those requirements found in Trial Rule 65(b) and are intended to be consistent with T.R. 65(b).  Posted notice requirements correspond and are intended to be consistent with those found in Ind. Code § 5-14-2-5 which requires that: “[t]he court shall notify the parties of the hearing date and shall notify the general public by posting a copy of the hearing notice at a place within the confines of the court accessible to the general public.”

Today I have asked the Boone County Commissioners to provide to me a copy of the notice and any document stating when and where it was to be posted.

I am sure they don't have that information but I am now providing notice that a public hearing in the Boone Superior Court II matter of Town of Thorntown v Stuart Showalter will be held on 05 October 2009 at 9:00 in the Boone County Courthouse.


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Indiana Child Support Payment Guidelines Amended - Part II

This is my second posting in a series that I am doing on the Amendments to the Indiana Child Support Guidelines that will take effect 01 January 2010. Part I briefly described some of the main points of the amendments and the process used to achieve those.

After more studying of the 20+ pages of new material I have decided to separate this into seven additional categories which I will post on individually. Some of these will take considerable study but I do want to be thorough. I anticipate that I will do about one posting per week which will still provide plenty of time for review before the 01 January changes.

I - Introduction

II - Dissent

III - Changes in computing support
Definition of weekly gross income
Adjustment to weekly gross income
Minimum support

IV - Changes applicable to Parenting Time
Parenting Time Credit
Equal parenting time
Retroactive modification

V - Application of Social Security payments

VI - Parents health care obligation to children

VII - Taxes and Accounting
Tax exemptions
Accounting orders

VIII - Expected litigation

Dissent -

Justices Sullivan and Rucker dissent in part with the amendments to the Guidelines as approved by the majority of the court. Their dissent is as follows:

"We dissent from those amendments to the Guidelines that have the effect of overruling Grant v Hager, 868 N.E.2d 801 (Ind. 2007). Grant held that there is a rebuttable presumption that neither parent owes the other support in a circumstance where the Child Support Obligation Worksheet calculation produced a negative amount for the non-custodial parent's child support payment because of the application of the Parenting Time Credit. Under the amendments to the Guidelines approved in this Order, however, there will be a rebuttable presumption in such circumstances that the custodial parent must make child support payments to the non-custodial parent equal to the negative amount.

We believe that the Guidelines' presumption in such circumstances should continue to be that neither parent owes the other support. We also note that, notwithstanding this amendment, the trial court has authority to deviate from the new Guidelines amount and order that neither parent owes the other support based on their respective incomes and parenting time arrangements if the court had [sic] concludes that it would be unjust not to do so and the court makes the written findings mandated by Child Supp. R. 3."

What Sullivan and Rucker are saying here is that they don't want a system that is manifestly unjust to be changed. The longtime presumption has been that if the child support calculator produces a result that says the custodial parent must pay the NCP then there will be no support payment. This was established in the Guidelines and clearly articulated in law by application of Grant.

I emphatically suggest that you read the Supreme Court's opinion in Grant. Mother earned almost 2/3's of the family income while the father provided support to the children well over 1/3 of the time. If mother earned 2/3's and provided support for 2/3's of the time then the support would be about zero as each parent would be providing support relative to their earnings. But in this case the father provided additional care and also paid $55 per week for insurance premiums.

Application of the guidelines showed that he was to pay ($92) to mother. Meaning she owed him $92. She argued on appeal that the Guidelines do not allow for a negative child support award so she should not have to reimburse him for the medical insurance or pay $37 to him per week for the additional support he provides. The Appeals Court agreed but the Supreme Court didn't. The Supreme Court ruled that the Guidelines provide for a rebuttable presumption and that he had rebutted that presumption.

Sullivan and Rucker are not convinced that the citizens of Indiana are entitled to equality when in a courtroom. Quite to the contrary they know that the vast majority of custodial parents are women and that they want to perpetuate a gender battle between parents and keep parents from uniting against the invasion of the courts into micromanaging the lives of our children.

Sullivan and Rucker are nothing short of indirect child abusers who seek to harm children for their own benefit.

To ensure that you see all eight section of this child support payment series please subscribe to my blawg.


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Indiana Custodial Rights Advocates

©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Indiana Child Support Payment Guidelines Amended

On 15 September 2009 the Indiana Supreme Court published the amendments to the Indiana Child Support Guidelines. These Amendments will take effect 01 January 2010.

The Court through the Domestic Relations Committee has undertaken a multi-year assessment of the Guidelines which included input from CPS, the Child Support Bureau and public input and hearings. Many of us either wrote to the Committee or testified at the public hearings providing anecdotes about the difficulty in paying support and still maintaining the minimum necessities for themselves.

These amendments provide an extensive overhaul of the Guidelines. Today I will provide just an overview of the changes and will address them on a point-by-point basis in future blawg postings. The first thing the Supreme Court did was to strike the term "rules" from the text and replace it with "guidelines".

One interesting note is that there was not agreement in adopting these amendments. Justices Sullivan and Rucker specifically did not want all parents to be given equal consideration in setting child support amounts. The adopted amendments includes an addition that we have battled for many years. "The calculated amount establishes the level of child support for both the custodial and non-custodial parent. Absent grounds for a deviation, the custodial parent should be required to make monetary payments of child support if application of the parenting time credit would so require."

The current guidelines provide that when support is calculated that produces a negative amount for the NCP to pay to the custodial parent then the courts simply ignores it. The new rules are now saying the NCP should receive that amount. For instance if a NCP parent has the child one third of the time but only earns one forth of the income then the custodial parent should help eliminate that financial imbalance.

The amendments also reduce the minimum support amount from $25 to $12. Additionally, the Guidelines will now require that a "numeric" support order be established in all cases. There is a saving provision that recommends at $0.00 amount in cases where the NCP is incarcerated, has a disabled parent to care for or some other limited situations.

I imagine that it is going to take a few weeks for me to analyze the amendment thoroughly and write about them so please subscribe and keep checking back.

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Indiana Custodial Rights Advocates

©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Can attorneys be punished for misconduct?

What do you call a cruise ship full of attorneys at the bottom of the sea? . . . A good start! There is a reason for the degrading and lethal jokes about attorneys. For those people who have been involved with them it is not uncommon to have a disagreement or to feel that you have been wronged by an attorney. Most disputes are over billing. The agency responsible for enforcing the rules for attorneys is the Disciplinary Commission of the Indiana Supreme Court.

Attorneys have certain basic rules that they must follow as set forth by Indiana Code 33-43-1-3. One of 10 particular provisions is that an attorney shall employ, for the purpose of maintaining the causes confided to the attorney, only those means that are consistent with truth and never seek to mislead the court or jury by any artifice or false statement of fact or law.

The Rules of Professional Conduct set forth the complete guidelines that attorneys are required to follow through various aspects of their trade from courtroom decorum to advertising. As in any profession there will be the god and the bad. Those who follow the rules, those who bend them and those who show outright disregard. So, what happens when an attorney doesn't follow those rules?

Most attorney complaints are about billing issues. Resolution of those problems should be attempted with the attorney but if that fails then there is the Disciplinary Commission. I have used the Commission with success and failure in the past.

A few years ago I was reading the local newspaper. There on the front page was a photo of the local prosecutor and statements about a defendant in an upcoming trial. He was clearly attempting to try the case in the press and prejudice the jury. I immediately made a Request for Investigation to the Commission. The prosecutor was charged with "misconduct" and even though the judge ordered me out of the courtroom during the trial I was still able to advise my client during breaks. She was acquitted in about half an hour.

There is another type of misconduct for which I have made complaints against an attorney. This attorney represented a town which was involved in a lawsuit against me and also as a defendant in my suits against them. In the case against me he intentionally withheld exculpatory evidence, tried to mislead the court, misstated the law and at times outright lied.

In 1997 the Tippecanoe County Commissioners had a billing issue with this attorney. The Journal and Courier reported about this on March 5, 1997. The article stated that the attorney had submitted a $21,000 invoice for January and half of February 1997. Unlike other attorneys, his billing statements did not itemize his charges. "The way he is billing...is not proper," said Commissioner Kathleen Hudson who was a client of his when she voted to hire him as the county attorney.

In a previous complaint I demonstrated that this attorney had, among other things, submitted falsified billing to the Town of Thorntown in 2007. In that instance he had submitted itemized billing. The unfortunate thing is when he submits an itemized bill he charges for work he couldn't have done.

In one suit I filed against the Town of Thorntown, he said he spent 3.6 hours at a hearing in Boone Superior Court I on 04/25/07. However, Judge Mathew Kincaid produced a court calendar that showed the attorney had not been in court that day. The judge also provided a case calendar for the particular case billed for which showed there was no hearing anytime near that date. It was a complete fabrication.

Disciplinary Commission Executive Secretary Donald Lundberg sent a letter to me about each complaint stating that he found no evidence that would warrant discipline. A state attorney paid through taxpayer funds should be more vigilant in pursuing actions against fellow attorney's who are stealing money from taxpayers. Those 3.6 hours at $185 per hour cost taxpayers about $650. Since I was ordered to pay those fees by a different court I will soon be filing a lawsuit to recover those fees plus other damages and court cost.

Indiana Code 33-43-1-8 allows for a person to recover triple damages against an attorney who has used deceit or collusion with intent to deceive a court, judge, or party to an action or judicial proceeding to obtain a judgment. Attorney Carlyle "Cy" Noyes Gerde of Lafayette, Indiana clearly did that. He makes a practice of representing small municipalities and running up huge legal fees before moving on.

Now I have a case to present to you that shows Gerde has clearly violated the Rules of Professional Conduct in Thorntown's case against me. In the Complaint I allege that Gerde has violated all of Rule 3.3 about candor towards the court and four portions of Rule 3.4 requiring fairness to the opposing party.

The following is a portion of the complete Request for Investigation that I have submitted to the Disciplinary Commission. This was a public nuisance case brought after I put a sign in the window of my porch that read, "Child Molestation Ring Evidence - Guess who's involved." Essentially what I claim is that the Town Council President Gary Jones freaked out about that sign and ordered Marshal Woodard to go after me for something. On July 20, 2006 Marshal Woodard delivered two Notices to Abate to me. One cited that there was an abandoned car in my drive and a fiberglass playground equipment in the shape of a boat; the other was for grass exceeding 12 inches in my flower beds.

There was an abandoned car in my drive and I made the owner come get it. I also pulled all the shoots of grass out from my flower beds. The Marshal wrote a letter thanking me for remedying the car and grass situation but since I refused to remove the playground equipment I was cited on 08 August 2006 for having an abandoned vehicle on my son's playground. That case was dismissed.

On 01 September 2006 I was sued for having vegetation on my property exceeding 12 inches and also for maintaining a dangerous structure identified as my house with poster-board signs in the windows. I allege that I sought copies of the Notices to Abate and letter from the Town Marshal. Attorney Gerde and Marshal Woodard during the discovery process both said the documents didn't exist. Although I wasn't cited for any trash, debris or other condition of the property Attorney Cy Gerde regularly lied to the Court saying that it was a "trash case".

Here are portions of the actual transcripts from the case.

The Notice violation -

Indiana law requires that a notice be provided to a property owner giving at least 10 days to remedy an alleged violation before the municipality takes action to remedy the alleged offense.

Page 30 Line 6 - GERDE: ". . . you were given many notices."
Page 30 Line 16 - GERDE: "You were given actually, as you know, many warnings. Uh, for all during July and August, you did not respond to those, uh, so you were cited."
Page 46 Line 9 - GERDE: "But those are what he found when he went to the scene and those are what he had complained about in July and August to Mr. Showalter and when they were not solved, he normally gives at least thirty (30) days and he did give more than thirty (30) days and that was what he was cited for in 3386, which was uh, conditions declaring to be a public nuisance and that includes chapter 12, Section 12.1 . . ."

The Irrelevance violation -

The citations were for signs in the windows of my house making the house a dangerous structure and for vegetation "exceeding one foot" which Gary Jones testified were trees, bushes and flowers.

Page 30 Line 1 - GERDE: " . . . this is a trash case. That's all it is is a trash case. We have those every year in tens of thousands communities and the law makes it very clear that we have a choice to discretion to enforce it or not. And in this case choose to enforce it and uh, there were . . . you were given many notices."

Page 33 Line 2 - STUART: "He [Gerde] also brings up the issue of citing that this is a trash case, yet, subsection . . . Part D, Subsection One (1) of the purported ordinance is what relates to trash, debris and so forth, being on a property, yet that is not what I've been cited under, so I believe that is absolutely irrelevant."

Page 65 Line 16 - GERDE: " . . .have to be with all this peripheral things as whether his signs are constitutional or whether he has a right to call people liars, that . . . none of which has anything to do with this. This is a trash case."

The testimony about this being a trash case is extensive. If you want to see it all you'll have to check out the transcripts from the Boone County Clerk. Clearly though as you are reading this you can see that even after I told him it was not a trash case, which he knew, he continued to carry on about it being a trash case.

The best and most damaging part of this case is when Cy Gerde and Marshal Jeff Woodard state that the 08 August 2006 letter from Woodard doesn't exist. I have now obtained the originals from the police station. To see all the allegations read the complete Request for Investigation and supporting documents.

So now it is time for Donald Lundberg to show that he is going to apply the rules of attorney discipline as he is required to or is he going to show that he is operating in collusion with Gerde.

To see more about Gerde subscribe to my blog. You will soon see the evidence that Gerde broke into his elderly parents home then beat and robbed his mother. You'll also get additional information about past discipline cases against Gerde. Thanks for reading.


Stuart Showalter

Indiana Custodial Rights Advocates

©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.