21 March 2014 2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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The Domestic Relations Committee [DRC] of the Indiana Judicial Center met in regular session today to discuss the process of revising the Indiana Child Support Guidelines. Dr Betson appeared and presented to the DRC on the particular subject of the Health Costs coverage.
In the year 2008 the federal government issued regulations instructing states that their child support guidelines should address “how parents will provide for the children's health care needs through health insurance coverage” or by providing for the health care costs.
Under the Patient Protection and Affordable Care Act 111-148 and the Health Care and Reconciliation Act 111-152 families are expected to pay between 2% [income <133% of FPL] and 9.5% [income >300% of FPL] of their income for coverage based upon income. Coverage at these levels is based upon a 30% co-pay.
The law divides coverage plans into four categories based upon cost sharing: Platinum 10%; Gold 20%; Silver 30%; and Bronze 40%. As applied to the CSOW this cost sharing – Uninsured Health Care Expense Calculation – allocates the portion of that 10-40% range for each parent. The fee for the coverage is calculated in the CSOW under section 7 which also includes child care expense and parenting time credit.
The Act provides for subsidies based upon income when a Silver or higher plan is purchased. For those earning 100-150% of the FPL their expected cost share is 6% which rises to 30% for those earning over 300% of the FPL. Judicial officers and parents will need to consider the expected medical outlays for the children. If outlays are expected to be high then a Platinum or Gold level plan should be purchased. If outlays are expected to be low then a Silver or Bronze level plan should be purchased although the Bronze is not subsidized.
Judicial officers and parents will also need to consider which parent is defined as the custodial parent for health insurance premium purposes. This may not be the same as what a court orders The IRS defines custodial parent based upon overnights. IRS Form 8332 allows for transfer of the exemption for child to align with the parents agreement or order of the court.
In a Healthy Perspective on Health Care I wrote about the dissonance created when a person who envisions himself as healthy paying for sick care coverage which goes unused. As the cost outlays accrue this dissonance creates sickness in the person experiencing the dissonance as to alleviate that stress. Thus, purchasing coverage causes illness. Those who hold such a belief may be exempt from the law.
The law exempts certain individuals which include those who are;
~ incarcerated, and not awaiting the disposition of charges;
~ a member of a recognized religious sect with religious objections to insurance;
~ not required to file a tax return because their income is too low; and
~ anticipated to spend more than 8% of household income to obtain the lowest-priced coverage available.
Thus, someone who is a Christian Scientist is exempt from the law.
The Indiana Child Support Guidelines, unlike the Obama health tax, does not mandate medical care coverage. As initially stated the feds require that the states provide a mechanism by how the parents will share the cost of providing health insurance coverage. ICSG section 7 provides that the “court shall order one or more parents to provide private health insurance when available to the child at a reasonable cost.” The federal coverage mandate essentially removes the availability clause within Guideline 7 as coverage is available to everyone now. The second and remaining test the becomes “reasonable cost” which is essentially removed by the federal mandate as the subsidy provisions are based upon what is presumed to be a reasonable contribution by policy holders.
In In re: Paternity of S.A. the Indiana Court of Appeals addressed the cost share and reasonableness of coverage fees. This was more recently addressed by the Indiana Supreme Court in Johnson v Johnson last year. The DRC will need to provide guidance to judicial officers on how to calculate the cost of insuring the children based upon the inclusion of the parent in the plan, which plan should be chosen, and the premium subsidy which gets paid directly to the insurer.
Overall, applying the Obama Health Tax plan to the Indiana Child Support Guidelines is going to require a greater examination of available plans, the cost for those and the expected outlays for the children. A new support calculator will likely be generated for this. The most probable method of calculating parents' contribution towards medical care will be actual premium paid.
In conclusion, the ICSG are premised upon the idea that the child should be able to maintain the same standard of living which was experienced or would have been if the parents resided in an intact family. That means that if coverage didn't exist prior to divorce then it does not necessarily need to be provided following. The Obama Tax does allow for a penalty tax to be assessed rather than pay the premiums for a sick care policy.
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.
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Friday, March 21, 2014
2014 Indiana Child Support Guidelines Amendments - Insurance and Health Costs coverage
Friday, February 21, 2014
2014 Indiana Child Support Guidelines Amendments - Parenting Time Credit
21 February 2014 2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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The Domestic Relations Committee [DRC] of the Indiana Judicial Center met in regular session today to discuss the process of revising the Indiana Child Support Guidelines. Dr Betson appeared and presented to the DRC on the particular subject of the Parenting Time Credit.
Dr Betson first proposed a new way of classifying parents - Parent with Primary Residency [PPR] and Parent with Secondary Residency [PSR]. This is similar to what I proposed a few years ago as a way of mitigating the impact of the Non Custodial Parent label. I am pleased to see him do this as he suggested to the DRC the need to be sensitive to these labels. I will again be pushing for adoption of such new parenting distinctions.
Most of the discussion related to the manner in which Indiana calculates support and specifically the parenting time credit. Spending as anticipated by the ICSG is divided into three sections: 1] Transferred expenses which account for 35%. These are the expenses that follow the child such as providing food, travel to school or other activities, and the other incidentals that occur while a child is with a parent; 2] Duplicated expenses which account for 50%. These are the expenses that are assumed to be incurred by both parents and are additional to what an intact family would have. This would include any extra bedroom for the child, possibly a parent who normally used public transportation needing to get an automobile large enough to transport all children, and sometimes things such as clothing and toys which are currently considered controlled expenses; and 3] Fixed expenses which account for 15%. These are the expenses that include healthcare [the 6% rule], clothing, school book fees and the like.
Overall it is assumed by the ICSG that the cost of raising children in separate households is 150% the cost incurred by intact families. Indiana uses the income shares model and a graduated parenting time credit. The credit is applied to the transferred expenses [35% of total] which can result in up to a 17.5% credit if time is equally shared. The credit begins at 52 days and is very small, just over 1%, and only reaches 15% at 96 days. It rapidly increases from there. At 116 days the credit is 32% of the transferred expenses which is about 10% of total support calculation.[fn1] At 136 days the credit is 44% and then gradually gets to 50% at 183 overnights.
While there are transferred expense for overnight parenting time up to one night a week it has been a policy decision to not provide a credit for that. The purpose there is to induce the PSR to seek additional parenting time. It is also to keep the PRR from trying to restrict to no time. After all, the PRR will get the PSR to accept some of the financial responsibility while still paying 100% of the court ordered support amount. As previously shown when the overnights gets around 116 the credit increases rapidly. This has lead to resistance of the PPR from agreeing to a higher number of overnights with the PSR. This problem is exacerbated in New Jersey where the half of the transferred expenses kicks in at 35% of overnights. Thus PSR's will often seek no less than 35% and sometimes no more than 35% while the PPR offers no more than 34%. This bright line creates a credit or loss of 17.5% of support dependent on 4 nights one way or the other. Indiana spreads it out over 131 nights, the majority of it being across about 35 nights. Upon surveying judges in Indiana there is wide discrepancy among their experiences in which they find parents trying to manipulate parenting time to affect child support payment amounts. Overall across Indiana it is not a significant factor.
Dr Betson is suggesting, and I agree, that when parenting time is at or nearly equal that some of what are considered controlled expenses – clothing, large toys – that would not reasonably always flow with the child should be included in duplicated expenses.
In 2008 the Indiana Supreme Court in Young v Young [fn2] ruled that a parent who exercises daytime responsibilities such as providing meals, travel to activities and other expenses cannot receive overnights credit as a way of compensating for that until the DRC changes policy. However, as Judge Murray – Chair of the DRC -- did on remand, as Young did not preclude her, she receiving evidence of those costs and then deviating from the bottom end support calculation rather than adjusting the number of overnights. The DRC discussed the matter and they appear to be satisfied with adding language to the ICSG to instruct practitioners on accepting evidence of support that does not include overnights. The resulting effect should be that the negotiation of parenting time focusing on overnights as a means to produce adjustments to the child support payment order should be reduced.
The DRC would like to be ready to submit their proposal to the Indiana Supreme Court by 01 July 2015. They will take public testimony on 16 May 2014 at the Indiana Supreme Court chambers on level 3 of the Indiana State House at the north end. There will also be a link provided on the Indiana Supreme Court website in the near future for the public to submit written comment.
There are numerous new members on the DRC this year which I will address in a future posting. The next meeting is scheduled for 21 March 2014 where the topic that Dr. Betson will present is how the O'bama health tax will affect the ICSG.
notes
[1] .32 x 35% = 11.2%
[2] Young, 891 N.E.2d 1045 (Ind. 2008)
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.
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Friday, February 14, 2014
Update on amending the 2014 Indiana Child Support Guidelines
14 February 2014 2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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review scheduled for public comment
Maybe it is my sense of sick irony or a hint of caution that I post about this subject today.
The Domestic Relations Committee [DRC] of the Indiana Judicial Center [IJC] will meet again in regular session for the purpose of formalizing procedures for amending the Indiana Child Support Guidelines [ICSG] on Friday 21 February 2014 at the IJC. The DRC is a panel of 12 judicial officers who make recommendations to the Indiana Supreme Court [INSC] for rules relating to domestic relations cases. By federal statute each state is required to review their child support guidelines at least every four years.
As part of the review process the DRC will be taking testimony from the public in both written form and orally. This information will be posted on the INSC webpage as well as by me when I receive it. If you would like to receive updates from me just send a request to my scheduler using the link below.
I anticipate that the DRC will be taking oral testimony from members of the public on Friday 16 May 2014 beginning at 10:00a.m. In the chambers of the INSC which is on the third floor of the Indiana State House at the north end. This is not an official date. I only provide it to give you a heads up as to when it may be so that you may plan accordingly. As soon as I find out a firm date I will do another update posting. Please do not contact the IJC as you will only get referred to the INSC website.
The IJC is located at 30 South Meridian Street, Indianapolis. The DRC meetings are open to the public but are not public input sessions. At the discretion of the Chair the DRC does sometimes elicit input from visitors. Please contact my scheduler if you would like to be added to the guest list.
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.
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Monday, January 27, 2014
Understanding the Indiana Child Support Guidelines - 2014 Calculation Revisions
27 January 2014 2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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review scheduled for public comment
The Domestic Relations Committee [DRC] of the Indiana Judicial Center is given the charge of reviewing the Indiana Child Support Guidelines every four years pursuant to federal law.[fn1] 2014 brings about the requisite passage of time to embark upon such a review. As the DRC begins the process I will attempt to provide to you relevant information in regards to the ongoing process and your opportunity to provide input. In this posting I intend to start by providing some background for you regarding the Indiana child support payment scheme and those of other jurisdictions.
Indiana uses the income shares model developed by Robert Williams. This model provides that based upon total parental income children would account for a particular portion of total family spending. From this total amount each parent is assigned a share to pay based upon the incomes of each. This appears as Line 4 on the Indiana Child Support Obligation Worksheet [CSOW]. Indiana is one of 35 states that use this model.
11 states use the percent of income method. These states take a percent of the non-custodial parent's [NCP] and provide it to the custodial parent as a direct payment to supplement the custodial parent's spending on the child. This system poses significant problems. The percent of family resources dedicated to children are not consistent across the spectrum of income levels. While a family earning about $50,000 a year may spend 20% of that on a child a family earning that will likely spend a higher percent while those earning significantly more will spend much less. Certain constants like a child's need for nutrients is not contingent upon parents' incomes. A child who's parents earn $250K per year does not eat ten times as much as those who earn $25K per year. Similar comparisons can be made with clothing, extra-curricular activities, and rides to school.
Three states use some form of the Melson formula. Melson first provides that the parent is entitled to basic needs. After the basic needs exemption a portion of income is then attributed to the needs of the child. Remaining income is subject to a standard of living adjustment – non-essential purchases.
Of the three formulas the income shares model that Indiana uses is the most popular and I feel is the best to most accurately represent spending on children across a broad spectrum. In practice though it sometimes produces absurdities that are not nearly reflective of a family's actual spending on the children. Part of the reason for this is that the data used to determine Indiana's child support payment obligations is based upon 1972 surveys by the U.S. Department of Labor. Another flaw is the per capita application of some expenses such as housing. Using the per capita method a one bedroom apartment for a parent only would attribute a cost to the parent of $500, A $600 per month two bedroom – one for a child – would attribute a cost to the child of $300. A $750 per month three bedroom – two for the children – would attribute a cost to the children of $500. But we know the parent cannot get a one bedroom for the remaining $250. The per capita method attributes too high of a cost to the children. I have written more about that in this case where a mother was living off of child support payments. The current model that Indiana uses attributes 44% of household expenditures on a per capita basis – most of that being housing.
The purpose of the income shares model is to provide the children with the same standard of living that the children would have enjoyed had the marriage remained intact[fn2]. Implicit in this standard is that the standard of living of the parents shall be reduced from what it would have been had they remained married. This standard of living dichotomy is appropriate as it is not the children that seek divorce but it is the selfish interest of adults that lead to divorce. However, the standard of living of the NCP often seems to suffer in a disparate proportion to that of the custodial parent.
Another problem encountered by William's income shares model is that it uses gross income. This creates a disparity because of taxes and savings. Lower income earners often pay no taxes and may even receive an EIC payment from the IRS. They also may spend more than they actually earn thereby incurring debt to maintain their standard of living. By contrast, high income earners[fn3] pay a substantial percent of their income to taxes and other levies while also saving at a higher rate. Rothbarth has developed a measure that uses a net income adjustment for calculating income shares.
The DRC has secured the services of Dr. David Betson, professor of economics at the University of Notre Dame, to assist in the development of a revised child support calculator. I spoke with Dr. Betson briefly about some of the problems with the current system and ways that I feel could ensure a more just application of the ICSG to achieve the stated objective of providing the children with the same standard of living that they would have enjoyed had the marriage remained intact. I will detail some of our conversation in a future posting.
1] 42USC§667(a)
2] Payton v. Payton, 847 N.E.2d 251, 253 (Ind. Ct. App. 2006).
3] Households or families with weekly gross combined incomes of $4,000 or greater are considered high income earners.
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.
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Saturday, January 18, 2014
Bill to Amend Non-Support of a Dependent Child Statute IC 35-46-1-5 - Child Support 2014 Indiana Senate Bill 63
17 January 2014 2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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review scheduled for public comment
Senator Michael Young, Chair of the Committee on Corrections & Criminal Law, has introduced a bill that will bring greater continuity to and increase the level of equity in cases of non-support of a dependent as a criminal offense. The current statute has plagued courts, practitioners and defendants because of the perceived ambiguity of the statute through inclusion of a dollar amount in the sentencing enhancement portion of the statute.
The synopsis of the bill is;
Nonsupport of a child. Changes the penalty enhancement for nonsupport of a child from a Level 6 felony to a Level 5 felony if the person has a previous conviction for the offense. Changes the procedure for a court to lower the penalty for a person convicted of nonsupport of a child. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)
Here is the portion of the bill that would affect the charge of criminal non-support of a dependent - IC 35-46-1-5;
[strike]if the total amount of unpaid support that is due and owing for one (1) or more children is at least fifteen thousand dollars ($15,000).[close] [insert]the person has a previous conviction under this section.[close]
The inclusion of “fifteen thousand dollars” as well as the phrase “due and owing” has led to confusion about whether this section applies to civil child support payment orders. However, the statute is clear and unambiguous in that it does not include court ordered child support payments. IC 35-46-1-1 provides a clear definition of “support” as “food, clothing, shelter, or medical care ” Under the application of statutory construction the “fifteen thousand dollars” and “due and owing” cannot represent a child support payment amount. Expressio unius est exclusio alterius deems child support payments to be specifically excluded from the “support” contemplated by the legislature when this law was crafted. Expressio unius est exclusio alterius is a latin legal phrase [called a maxim] which means – that which is not included is excluded. The legislature was specific in proscribing only four categories of support that qualify as inclusive of the domain in which criminal accountability is contemplated. Thus, lack of “emotional support” or “learning aides” are not within the purview of IC 35-46-1-5. Educational neglect is specified under IC 35-46-1-4(a)(4) while emotional abuse may fall within the auspices of general abuse and neglect under IC 35-46-1-4(a)(1).
The only logical application of “fifteen thousand dollars” or the phrase “due and owing” would be to medical bills as it is highly unlikely that food, clothing or shelter would be provided on credit for any amount that could come close to $15,000. This can create a great disparity in application of the law. While one parent could regularly take a child for treatment at a hospital emergency room and not pay for five visits while not breaching the $15,000 threshold, another could breach that limit from one severe trauma such as an open cranial TBI. There was also no requirement that the person must have had the ability to pay the outstanding bills. I find that to be a substantive due process issue.
The remainder of the bill applies to the sentencing portion and post execution reduction of the offense level.
The bill adds the following section to IC 35-50-2-6 that replaces the existing language which was not as precise and was more discretionary in the process.
(c) Notwithstanding subsections (a) and (b), if a person commits nonsupport of a child as a Class C felony (for a crime committed before July 1, 2014) or a Level 5 felony (for a crime committed after June 30, 2014) under IC 35-46-1-5, the sentencing court may convert the Class C felony conviction to a Class D felony conviction or a Level 5 felony conviction to a Level 6 felony conviction if, after receiving a verified petition as described in subsection (d) and after conducting a hearing in which the prosecuting attorney has been notified, the court makes the following findings:
(1) The person has successfully completed probation as required by the person's sentence.
(2) The person has satisfied other obligations imposed on the person as required by the person's sentence.
(3) The person has paid in full all child support arrearages due that are named in the information.
(4) The person has not been convicted of another felony since the person was sentenced for the underlying nonsupport of a child felony.
(5) There are no criminal charges pending against the person.
(6) The prosecuting attorney agrees to the reduction of the penalty.
(d) A petition filed under subsection (c) must be verified and set forth the following:
(1) A statement that the person was convicted of nonsupport of a child under IC 35-46-1-5.
(2) The date of the conviction.
(3) The date the person completed the person's sentence.
(4) The amount of the child support arrearage due at the time of conviction.
(5) The date the child support arrearage was paid in full.
(6) A verified statement that no further child support arrearage is due.
(7) Any other obligations imposed on the person as part of the person's sentence.
(8) The date the obligations were satisfied.
(9) A verified statement that there are no criminal charges pending against the person.
(e) A person whose conviction has been converted to a lower penalty under this section is eligible to seek expungement under IC 35-38-9-4 with the date of conversion used as the date of conviction to calculate time frames under IC 35-38-9.
In the last session of the general assembly the criminal offenses were re-codified and offense levels were changed from alphabetical to numerical designations. The prior Class D felony has been split into two levels consisting of Level 5 and Level 6.
The term for a Level 5 felony is found in Indiana Code 35-50-2-6(c) ver. b
A person who commits a Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being two (2) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).
The term for a Level 6 felony is found in Indiana Code 35-50-2-7(b) ver. c
A person who commits a Level 6 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 1/2) years, with the advisory sentence being one (1) year. In addition, the person may be fined not more than ten thousand dollars ($10,000).
This bill was referred to the Committee on Corrections & Criminal Law where it passed 6-0 and went on to the full Senate. It is set for second reading on Tuesday 21 January 2014 at 1:30 p.m.
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.
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Friday, November 8, 2013
The Right to Counsel in Indiana Child Support Payment Order Contempt of Court Proceedings
* * * * * * * 2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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UPDATE: The Indiana Court of Appeals issued
a Published Opinion in June of 2014 affirming
the right to pauper counsel in child support contempt proceedings.
* * * * * * *
review scheduled for public comment
Child support payment orders can produce significant contention in a dissolution or paternity case and are likely to exacerbate problems in an already contentious proceeding. It is therefore imperative that courts set amounts that are appropriate for both parents. It has been well established that the greater the involvement of a non custodial parent with the child the greater the compliance with support orders. But even with just orders and sufficient parenting time lapses or complete cessation in support payments can and do occur.
The Indiana Supreme Court has held that contempt is available to assist in the enforcement of a child support order so long as the delinquency was the result of a willful failure by the parent to comply with the support order and the parent has the financial ability to comply. Pettit v. Pettit, 626 N.E.2d 444, 447 (Ind. 1993). Civil contempt is also known as “coercive” or “remedial” contempt because it seeks to remedy the violation of a court order. The purpose of the contempt is to persuade the contemnor to obey a previous order. Indirect civil contempt is a willful violation of a court order intended to benefit an aggrieved party that takes place outside the trial court’s presence. See In re Paternity of M.F., 956 N.E.2d 1157, 1163 (Ind. Ct. App. 2011).
The Clark County Prosecutor's Office provides this guidance about contempt proceedings.
If the court finds that a person is delinquent in the payment of child support as a result of an intentional violation of an order for support, the court may find the person in contempt of court. As a result of this finding, the Court has the authority to commit the person to jail for a reasonable time, usually up to a maximum of 180 days. While this is a civil and not a criminal proceeding, and does not result in a "conviction," the threat of incarceration often operates as a strong incentive to pay the ordered support.
The Child Support Division is required to file a Verified Information for a hearing on a Rule to Show Cause when a person is delinquent in child support payments and there is evidence of willful non-payment of child support. This is a legal pleading demanding that the person "show cause" why they should not be held in contempt of court for failure to pay child support. However, in order for the person to be held in contempt of court, it is necessary that they receive notice of the hearing, understand the nature of the allegations against them and have an attorney present before sentencing. Notice of the hearing is ordinarily accomplished through certified mail or personal service by the Sheriff. At the hearing, it must then be established that the person was aware of the support order, had the ability to pay, and willfully failed to pay in compliance with the order.
Civil contempt consists of a violation of a court order resulting in a proceeding for the benefit of the aggrieved party, and any penalty in a civil contempt proceeding must be coercive or remedial in nature; by contrast, criminal contempt consists of an act directed against the dignity and authority of the court that obstructs the administration of justice and tends to bring the court into disrepute Jones v. State, 847 N.E.2d 190, 199 (Ind. Ct. App. 2006), trans. denied.
In contempt cases the alleged contemnor must be given notice of the alleged contemptuous acts such that he or she has adequate time to prepare a defense. Showalter v. Brubaker, 650 N.E.2d 693, 701 (Ind. Ct. App. 1995). “Failure to give such notice results in prejudice to the defendant.” Id. However, parties may impliedly consent to trial of an unpled issue where both parties litigate the new issue during the proceedings. Columbia Club, Inc. v. American Fletcher Realty Corp., 720 N.E.2d 411, 423 (Ind. Ct.
App. 1999), trans. denied.
Contempt to collect child support includes the possibility of imprisonment. Penalties designed to compel future compliance with a court order are considered to be coercive and avoidable through obedience. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827 (1994). Thus, if the court uses imprisonment to coerce the defendant into doing an affirmative act, the court must provide the defendant with “‘the key of his prison in his own pocket.’” Moore v. Ferguson, 680 N.E.2d 862, 865 Ind. Ct. App. 1997) (quoting Webster v. State, 673 N.E.2d 509, 512 (Ind. Ct. App. 1996)). Thus, a contemnor jailed for contempt of court as failure to abide by the court's child support payment plan must be able to release himself by complying with the order – paying the arrears.
Not all support arrears are enforceable through the possibility of imprisonment though. In re Paternity of L.A. by Eppinger v. Adams, 803 N.E.2d 1196 (Ind.Ct.App.2004), trans. denied, the court noted that in that case the prosecutor's office filed an information for rule to show cause why the father should not be held in contempt for his failure to pay a child support arrearage. Id. at 1197-1198. The trial court discharged the rule to show cause because it concluded: Once a child is emancipated and the “natural duty” of the parents to provide for the maintenance of the child no longer exists, whether a request for relief under IC 31-16-12-6 is prosecuted by a “trustee” collecting child support or the trustee's assignee, the use of contempt remedies such as attachment and imprisonment to enforce a child support arrearage would violate of [sic] Article 1, § 22 of the Indiana Constitution which prohibits “imprisonment for debt, except in the case of fraud.” Id. at 1198. On appeal, the court agreed and concluded “that the use of contempt to enforce an order for child support arrearage after a child is emancipated is prohibited by Article One, Section Twenty-Two of the Indiana Constitution.” Id. at 1201. This opinion relied upon Corbridge v. Corbridge, 230 Ind. 201, 207, 102 N.E.2d 764, 767 (1952), where our supreme court held: The extraordinary remedy of attachment for a civil contempt of court is available, not for the protection of the one having custody of the child, but for the benefit of the child, so that it may not want for necessities during the period of its minority. When the child reaches its majority the purpose and justification for the extraordinary remedy cease, and the court has no right to coerce the back payments of support by imprisonment. Corbridge, 230 Ind. at 207, 102 N.E.2d at 767.
This is the type of restriction placed upon judges that often times elude the lay person whose concepts of judicial procedures usually reside in broad or general interpretations. The trained practitioners are sometimes no better but in general are much more effective at ensuring due process than the self-represented litigant. Indiana Code section 34-47-3-5 includes a list of procedural safeguards for those charged with indirect contempt.
34-47-3-5
(a) In all cases of indirect contempts, the person charged with indirect contempt is entitled:
(1) before answering the charge; or
(2) being punished for the contempt;
to be served with a rule of the court against which the contempt was alleged to have been committed.
(b) The rule to show cause must:
(1) clearly and distinctly set forth the facts that are alleged to constitute the contempt;
(2) specify the time and place of the facts with reasonable certainty, as to inform the defendant of the nature and circumstances of the charge against the defendant; and
(3) specify a time and place at which the defendant is required to show cause, in the court, why the defendant should not be attached and punished for such contempt.
(c) The court shall, on proper showing, extend the time provided under subsection (b)(3) to give the defendant a reasonable and just opportunity to be purged of the contempt.
(d) A rule provided for under subsection (b) may not issue until the facts alleged to constitute the contempt have been:
(1) brought to the knowledge of the court by an information; and
(2) duly verified by the oath of affirmation of some officers of the court or other responsible person.
As added by P.L.1-1998, SEC.43.
Indirect contempt proceedings may be used to enforce child support obligations. Marks v. Tolliver, 839 N.E.2d 703, 706 (Ind. Ct. App. 2005). Such proceedings require an array of due process protections, including notice and the opportunity to be heard. In re Paternity of J.T.I., 875 N.E.2d 447, 450 (Ind. Ct. App. 2007). This is provided by statute as I have just shown. Our statutory framework does not provide for the right to counsel in a civil contempt proceeding. However, our reviewing courts have established a right to counsel when certain criteria are met. A person may not be incarcerated by the government without first being
advised of his or her constitutional right to counsel. Marks, 839 N.E.2d at 706. If an
individual is in jeopardy of incarceration because of a contempt proceeding and that
person is indigent, he or she may not be incarcerated without having counsel appointed to
represent him or her. Id. It is error if the court imprisons a contemnor without first providing him or her with the opportunity to obtain the assistance of counsel.
Looking to federal law and rulings by the federal courts does not provide any clearer right. The Fourteenth Amendment’s Due Process Clause does not automatically require the State to provide counsel at civil contempt proceedings to an indigent noncustodial parent who is subject to a child support order, even if that individual faces incarceration. In particular, that Clause does not require that counsel be provided where the opposing parent or other custodian is not represented by counsel and the State provides alternative procedural safeguards equivalent to adequate notice of the importance of the ability to pay, a fair opportunity to present, and to dispute, relevant information, and express court findings as to the supporting parent’s ability to comply with the support order.
Due process does not always require the provision of counsel in civil proceedings where incarceration is threatened. See Gagnon v. Scarpelli, 411 U. S. 778. Because a contempt proceeding to compel support payments is civil, the question whether the “specific dictates of due process” require appointed counsel is determined by examining the “distinct factors” this Court has used to decide what specific safeguards are needed to make a civil proceeding fundamentally fair. Mathews v. Eldridge, 424 U. S. 319, 335. As relevant here those factors include (1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an “erroneous deprivation” of that interest with and without “additional or substitute procedural safeguards,” and (3) the nature and magnitude of any countervailing interest in not providing “additional or substitute procedural requirement[s].” Ibid.
This dictates that the right to counsel must be decided on a case-by-case basis. The Mathews court did not leave the decision entirely to judicial discretion however. It provided that guidance in saying “substitute procedural safeguards,” if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. These include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay. Mathews, supra, at 335,
In Turner v. Rogers, [564 U.S. ___, 131 S. Ct. 2507 (2011)] the US Supreme Court [SCOTUS] overturned an order of incarceration for civil contempt as non payment of child support. Under the circumstances, Turner’s incarceration violated due process because he received neither counsel nor the benefit of alternative procedures like those the Court describes. He did not have clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. And the trial court did not find that he was able to pay his arrearage, but nonetheless found him in civil contempt and ordered him incarcerated.
This was not the argument made by Turner in the case. Turner argued to SCOTUS that his incarceration was improper because he was entitled to legal counsel. Justice Thomas in his dissent said he would have let the lower court opinion stand because Turner was not entitled to counsel. It was the US Government who filed an amicus brief raising the issue of due process which the court took up in it's analysis. This goes against long standing decisions about deciding matters not raised in the lower courts. SCOTUS has held that it is the wise and settled general practice of this Court not to consider an issue in the first instance, much less one raised only by an amicus. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”); Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 110 (2001) (per curiam) (“[T]his is a court of final review and not first view” (internal quotation marks omitted)); United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 60, n. 2 (1981). Technically the South Carolina ruling should have been upheld but this case had the potential to affect many others and more clearly establish guidelines to lower courts.
Action Transmittal 12-01 from the Commissioner of the Office of Child Support Enforcement provides an analysis of the Supreme Court decision and policy recommendations to guide state child support enforcement practices into alignment with the holding in Turner v. Rogers. It recommends that states using incarceration in civil contempt proceedings to compel child support payments adopt the following procedures:
A. IV-D agencies should consider screening cases for actual and present ability to pay before referring or initiating civil contempt proceedings that can lead to incarceration.
B. Notice should be provided to the obligor that “ability to pay” is a critical issue in the contempt proceeding.
C. Judicial procedures should provide an opportunity for the defendant to be heard on the issue of ability to pay and result in express court findings [i.e. a written determination by the court].
Alleged contemnors should look to those recommendations as a minimum to be observed in their particular case.
The Federal Government believes that “the routine use of contempt for non payment of child support is likely to be an ineffective strategy,” the Government also tells us that “coercive enforcement remedies, such as contempt, have a role to play.” Turner v. Rogers, 564 U.S. Brief for United States as Amicus Curiae 21–22, and n. 8 (citing Dept. of Health and Human Services, National Child Support Enforcement, Strategic Plan: FY2005–2009, pp. 2, 10).
Notwithstanding enforcement of child support payment orders through contempt proceedings which threaten jail time will still be used. The federal constitution does not provide an absolute right to the appointment of counsel for alleged contemnors, even those who are indigent. Clearly procedural safeguards where established through Turner v Rogers that focus more on the ability to pay and informing the contemnor that this will be the crux of the proceeding. The Indiana Constitution and case law provides a stronger safeguard for alleged contemnors and that the right to counsel is an absolute before one can be incarcerated.
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