Thursday, May 11, 2017

Extensive litigation as a factor in reducing Indiana Child Support Payment obligation

An Indianapolis man had his weekly child support obligation reduced to zero dollars on Wednesday 10 May 2017 during combined hearings on child support contempt and modification of support obligation. This case has been extensively litigated. That protracted litigation was a factor in reducing the Father's support obligation.

While it is difficult to intertwine "briefly" into any aspect of this case I will attempt to briefly provide background as to support calculations. Parents divorced in 2009 and pursuant to an agreement in December of that year Father, who is self-employed, was to pay support in the amount of $100 per week. That amount exceed the ICSG worksheet computation. Parents were to share legal custody and parenting time on an equal basis. In Spring 2010 Mother filed for a modification of custody and parenting time.

Pursuant to that motion, in mid 2013 [yes it was litigated for nearly three years], the court imputed Father's income and set his support obligation at $143 weekly. Father appealed both the support and parenting time and custody decisions. The appellate court upheld the parenting time and custody decision but vacated the trial court's support order reasoning that income was wrongfully imputed to Father. Father sought rehearing and transfer of the parenting time and custody decision but was denied on both. The court subsequently reset Father's child support payment obligation to $83 per week.

In Fall 2013 Mother filed a Motion for Rule to Show Cause, alleging that Father was in arrears of his child support obligation, in which she sought jail time. At the onset of the hearing Father moved the Court to appoint pauper legal counsel to represent him in the hearing. The motion was denied, Father was found in contempt, ordered jailed but suspended upon compliance, and a compliance hearing date was set. Father appealed and the Indiana Court of Appeals vacated the contempt finding and remanded to the trial court to conduct an indigence hearing and appoint counsel if Father is found to be indigent.

In Fall 2016 the court rescheduled the contempt hearing and set a hearing to first determine if he was indigent. In the interim two years Father filed suit in a matter related to the case but that suit was ultimately dismissed after numerous hearings. Father appealed and again sought rehearing but it was denied.

During Father's hearing on contempt Father raised an objection. The prosecutor conceded the issue reasoning that if they proceed over his objection "we will be back here again" because he will appeal it and likely win. The hearing was rescheduled and Father was appointed counsel to represent him. Father then filed a Motion to Modify Child Support Payment Obligation. The Court set it to be heard concurrently with the contempt motion.

To be found in contempt of court for non payment of a child support obligation a four prong test is applied; 1] That a lawful order was issued; 2] that the alleged contemnor was aware of the order; 3] that the alleged contemnor had the ability to comply with the order; and 4] that the alleged non compliance was willful.

It was Father's position that his income was insufficient to meet the child support payment obligation and therefor his non-compliance was not willful. Additionally, Father reasoned that if he couldn't meet the obligation then the amount ordered to be paid should be modified lower because it was unreasonable.

Father's basis for claiming that his income had been reduced to a point to where he was unable to pay any support was the extensive and protracted litigation that he had endured over the past seven years. Throughout over 90% of the proceedings Father was self-represented. Father tendered summaries of the time he had spent on researching law, preparing documents, and attending hearings. In some of the years this was nearly 1000 hours.

While some of the litigation was initiated by Father most of that was invited by Mother who on one occasion was found to be in contempt of the court's custody order by changing which school the children would attend after being specifically instructed by the court to not do so.

At one hearing Mother revealed that she had lived with her mother for awhile so she could build up a $20,000 war chest in which to fight against Father in court for full custody of the children. Mother also complained that she had spent that money, wanted a new car, and wanted Father's support obligation doubled so she could buy a current year car and have more money to pay her attorney.

The matters came on for hearing on Wednesday 10 May 2017. Father was represented by pauper counsel for the contempt portion of the hearing.

Another point to make before getting to the details of the hearing is that although the parents were ordered to share in the costs of extra-curricular activities of the children, Father has solely bore these costs and been the parent facilitating the activities.

During the modification portion of the hearing, which the judge chose to hold first, Father proceeded to argue to impute Mother's income. Mother had been a school teacher but chose to quit that job and instead is working year-round for about two-thirds the pay with substantially less benefits. When asked if she quit or was fired she replied that she voluntarily left teaching. When asked why she barked, "I am not going back into teaching." Father posited that Mother was voluntarily underemployed and her income should be imputed to her former earnings level. The judge chose to not impute income to Mother.

At first blush this appears to be a setback for Father but it actually provided valuable support for him. The ICSG state that parents should not be forced to base earnings decisions on maximizing child support obligations.

In a prior hearing on support contempt a different judge told Father that he should quit working for himself because that obviously wasn't producing enough income to enable him to pay the ordered support amount.

During the immediate hearing Father made a two-prong argument for basing his earnings level at what he actually reported to the Internal Revenue Service. First, was that his current trade was the same as it had been during the entire time following divorce and it was during the time from about mid-point of the marriage until that ended. Thus, unlike Mother, he did not voluntarily reduce his income but rather, partially due to market fluctuations he had experienced a reduction in income for some years but that had reversed. The second, and more significant, basis was that the extent to which Mother has been litigating significantly impinges upon his availability to work.

As most of Father's business overhead costs are static there is a steady break even point -- about 700 hours per year -- that once passed produces almost entire profit from his billable time. In recent years his potential earning time has been cut nearly in half by litigation. Much of the time spent was due to Father's initiation of actions, particularly the appeals. But these were at Mother's invitation. The imputed support which was reversed by the Indiana Court of Appeals was copied verbatim from Mother's proposed findings of facts and conclusions of law. The separate lawsuit related to the case could have been preempted had Mother not chosen to acquiesce the offense. The contempt hearing in which Mother requested jail time proceeded at her request even though Father's right to counsel had been unlawfully denied. Mother had also been found in contempt of the custody order. Mother also engaged in other dilatory tactics which were again exposed at the immediate hearing when she acknowledged that she had not provided a financial declaration to Father even though he sent an email to her requesting such. By losing half of his available employment time to litigation Father didn't lose half his income but, because of the static overhead costs, it was about 75%.

The judge found that Father was not voluntarily unemployed but that his underemployment was due to the protracted litigation. The judge then calculated support based solely upon Father's tax returns and reported business income and Mother's current employment income. This resulted in a negative eighteen dollars for Father. The judge said he was deviating from the guidelines and ordered zero dollars retroactive to the date of filing for modification. They then proceeded to the next portion of the hearing.

The contempt portion of the hearing was unexpectedly brief. As the Mother and State were the moving parties it was their obligation to proceed first. The zero dollar support order presents the interesting fallacy of the alleged violation of paying nothing. However, the alleged contempt covered an additional two years preceding the modification. Father's proposition would be that his income was insufficient to meet the child support payment obligation and therefor his non-compliance could not be willful. As support had been set to zero based upon Father's earnings during the alleged contempt period then this was a de facto preemptive finding that Father couldn't meet the obligation. The prosecutor realized this and essentially opened by saying I guess the matter is moot at this point. That ended the contempt portion and closed the hearing.

Two interesting side notes are worth mentioning because of a potential psychological effect they may have on the judge which are related to my most recent posting about creating bias in the mind of the judge through little things -- Preparation, Experts, Trial Procedure and Risking your Parent-Child Relationship in a Custody Hearing. Father initially referred to the prosecutor as "madam prosecutor" and was told by the judge that calling her by name would be fine. Father responded that he did not know her name because no appearance had been entered by the prosecutor. The judge asked if he was sure and he responded that he never received one in the mail so he checked the CCS online to see if he could see from the entry the name of the person who filed it but there was no entry for it. The judge seemed disturbed by this and queried the prosecutor who snipped, "we are understaffed and overworked .. we really don't have the time for that." The second housekeeping or technical issue was when Father was asked what he proposed as a support amount. He responded that he had not completed a Child Support Obligation Worksheet because Mother had never provided a financial declaration to him. The judge responded that the proceeding could be halted and continued to a future date after Father has had time to review the document and make any inquiries as may be necessary. However, both Mother and the prosecutor already had copies. Father stated that he did not want Mother to have to take another vacation day from work to come back nor did he want everyone else to have to return. After a few moments of review by Father the hearing resumed.

In both scenarios Father demonstrated that he was prepared, reasonable, and accommodating. These are the types of traits which create favourable bias in the mind of judicial officers. This is why my primary focus with clients is cognitive behavioural therapy. I have seen strong cases crumble because the parents presenting them behaved like asses in the courtroom. Judges have wide discretion in making their rulings and when it can legally go either way bias will likely play into the decision. Attitude counts in support or custody hearings.

When it comes to modification of the child support payment obligation Indiana Code 31-16-8-2 provides access in two ways. The first, "upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable" is often neglected by attorneys. Alternatively, attorneys who are attentive to it may reject this mode when the argument is that the amount is unreasonable for whatever reason but the circumstances have not changed substantially. However, this burden can be overcome. This is because the ICSG are rules of court. As they are quasi-procedural in nature then they become law because it is a function delegated to the Indiana Supreme Court by the Indiana General Assembly. Thus, any resulting conflict which exists between the ICSG and the statutory law fall in favour of the ICSG.

The ICSG provide myriad factors which judicial officers should consider when making calculations and give particular note about calculating the income of a self-employed parent. The guidelines also stipulate that parents should not be forced to make employment decisions based upon maximizing income. In the immediate case this judge accepted the argument that no income should be imputed to Father because doing so would be forcing Father to work to his maximum earning potential in lieu of pursuing his constitutional right to pursue redress of the errors made in previous court hearings. This included one in which he was unlawfully sentenced to a jail term.

In conclusion, this case accomplished what numerous attorneys have claimed can't be done; getting a modification without meeting the statutory requirements. Father's income has been significantly diminished over the preceding seven years due to protracted litigation. That has not changed. Father's income has instead been imputed to what he would likely have earned if working full-time or, at one point, to an arbitrary point that had no basis in evidence. What did change is the application of judicial discretion. This judge accepted that time spent involved in litigation can legitimately be deducted from employment time without imputing earnings. This judge also followed the ICSG, which trump statutory law, by not requiring Father to work to his full potential.

While this ruling cannot be used as precedent it should be viewed as a valid novel approach to overcoming unjust child support payment obligation orders when income has been imputed. It should also be a reminder that there are self-represented litigants who continually outperform the well trained attorneys. Finally, it reinforces a point which I have advanced to clients, including this one, ad nausea which is that attitude and behaviour matter because they can affect judicial bias.

This is a ruling that will clearly benefit the children because Mother has already demonstrated that she won't contribute financially to the children beyond meeting basic needs while Father has demonstrate that supporting the children beyond basic needs is a priority even after losing 75% of his income.

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

Make a suggestion for me to write about.

Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.

View Stuart Showalter's profile on LinkedIn

Subscribe to my child custody updates

* indicates required
©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

No comments: