2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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review scheduled for public comment
Members of the public appeared in the chambers of the Indiana Supreme Court today to give comment to the Domestic Relations Committee of the Indiana Judicial Conference for the members consideration in amending the Indiana Child Support Guidelines.
About a dozen speakers appeared and testified before the committee. Numerous speakers talked about the issue of child support payments being used as means of income for custodial parents rather than going to the children. The speakers recommended using accounting of how child support payments are spent to prevent this abuse.
There were also numerous requests that the DRC use a different methodology to determine the parenting time credit other than overnights. I am feeling confident that there will be some changes to the commentary within the rules to guide judicial officers to consider actual expenses incurred, if any, for an overnight before applying a credit. Particularly, the Sunday overnight has been a source of great contention. As I mentioned in my testimony I have worked with mediating agreements where a custodial parent would agree to a child being returned as late as 9:00pm on Sunday evening but no overnight. The child ends up traveling past the school on Sunday evening and then riding a bus back at 6:30 in the morning. What is the cost in letting that child sleep at the custodial parents' house – almost nothing. The child ate at the NCP's house, slept at the CP's house, then got to school and ate a free breakfast and free lunch.
What was lost by the child not being at the NCP's house overnight is the opportunity for the NCP to foster a relationship with the school every other Monday morning. The child could have had less travel time [along with subsequent risk of injury], and less disruption in his or her life.
I spoke with a few of the speakers following the meeting and will be getting more information from them about their observations and recommendations. The testimony of the session may be viewed here. Of particular note are the mother, Michelle Williams, who begins at 14:45 discussing the “home business known as child support” and then yours truly at 36:15.
Judge Lynn Murray who chairs the committee was gracious enough to allow speakers an opportunity for additional time to expand their testimony following the initial five minute presentations of all speakers. I spoke briefly near the end about parents using parenting time to effect child support payments. Written comments may be submitted until 27 May 2014.
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, May 16, 2014
Public Recommendations Presented Today on Amending the Indiana Child Support Guidelines
Judge Lynn Murray's miscalculation of child support arrears cost a father $7,025
Recent opinions from the Indiana Court of Appeals continue coming on child support issues coincidental to today's public comment session for amending the Indiana Child Support Guidelines. The latest concerns calculating child support arrears which produced a split opinion. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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I like Judge Lynn Murray of the Howard Circuit Court because she gets it about children needing both parents, but I think she got it wrong on calculating the child support payment arrears of Michael Robinson. I am in good company on that miscalculation assessment. In her 15 May 2014 dissent in Paternity of D.M.Y. Judge Margret Robb began, “I agree with Robinson that the trial court erred in determining his arrearage, and therefore I respectfully dissent from the majority opinion affirming the trial court order.”
On June 20, 2012, the trial court conducted a hearing on Robinson’s petitions to modify support, determine arrears amount, and petition to show cause. The trial court found that as of November 16, 2010, Robinson was in arrears of his child support payments in the amount of $21,337.00. At the proceedings, the State introduced evidence about its interception on June 30, 2011 of $7,025.84 out of Robinson’s bank account. Robinson contends though that he was never credited for that amount. The State simultaneously introduced a document showing its calculation of Robinson’s arrears as of December 31, 2011. The exhibit indicates the amount of $7,025.84 as sitting in the clerk of court’s undistributed account. Robinson objected to the admission of the exhibit because “[i]t doesn’t accurately reflect they’ve distributed the money.” On September 4, 2013, the trial court issued its order, establishing Robinson’s arrearage at $13,055.00 as of July 29, 2013. Robinson appealed this determination.
Robinson contends that the trial court erred in its determination of a $13,055.00 child support arrearage because the court neglected to take into account the distribution of $7,025.84 which took place on January 3, 2012. Therefore, he maintains that by crediting the distribution, his proper arrears should be $6,029.16.
In reviewing the judgment, this court must determine whether the evidence supports the findings and whether the findings support the judgment. We will reverse a judgment only when it is shown to be clearly erroneous, “i.e., when the judgment is unsupported by the findings of fact and conclusions entered on the findings.” For findings of fact to be clearly erroneous, the record must lack probative evidence or reasonable inferences from the evidence to support them. Scoleri v. Scoleri, 766 N.E.2d 1211, 1215 (Ind. Ct. App. 2002). Thus to reverse the panel must find that the judgment wasn't supported by the evidence.
In my previous posting -- Indiana Court of Appeals vacates child support order based upon imputed income -- the appellate panel did just that in stating, “This finding is not supported by the evidence and is clearly erroneous.” The trial court order was then vacated. But the panel in Robinson's case didn't make such a ruling. Instead they found that Robinson did not timely appeal because although the immediate order being timely appealed included the miscalculation so did the court's September 18, 2012 order. In accepting the appeal for argument anyway Judges Riley and Bradford indicated that because “at the time the [$7,025] payment was made, Robinson was entitled to credit for it” that Judge Murray had made a correct calculation of his arrears because the credit should have appeared on the Clerk's record of payments.
But did the payment actually get credited to Robinson by the Clerk? Judge Robb didn't think so and she got out her calculator to confirm Robinson's claim. Here is what Robb wrote;
Going back to the November 16, 2010 order—the last order to establish an actual arrearage prior to this most recent order—Robinson’s arrearage was set at $21,337.00. From that date to the date of the most recent hearing, Robinson owed $20,586.00 in child support. His total support obligation was therefore $41,923.00. Howard County Clerk’s Office records show that $15,000.00 from the attachment of Robinson’s savings account was paid toward his child support, a $7,025.84 check received by the Clerk’s Office on June 30, 2011 was released to Young on January 1, 2012, and payments of $8,625.00 were made by Robinson for a total child support payment of $36,039.84. His arrearage therefore should be $5,738.00. The trial court’s determination that Robinson was $13,055.00 in arrears therefore reflects that the $7,025.84 check was most likely not credited to him by the trial court ($13,055.00 - $5,738.00 = $7,317.00, which equates to the $7,025.84 check and two $146.00 weekly payments). In short, the trial court’s math does not add up and I would reverse the arrearage determination.
As for the timeliness of the appeal, Judge Robb says this;
An actual, current arrearage was not established until the most recent order on September 4, 2013, and therefore I believe Robinson’s appeal of that order has timely raised the issue of whether the trial court included the $7,025.84 payment and properly determined his arrearage. I would remand to the trial court to recalculate Robinson’s arrearage with credit for that payment.
In Robinson's case I clearly think that two of three judges on his appellate panel got it wrong. I will be watching to see if he seeks rehearing [a new appellate panel] or transfer [asking the Supreme Court to hear it] and follow-up if he does.
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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Wednesday, May 14, 2014
Indiana Court of Appeals vacates child support order based upon imputed income
2015 Indiana Child Support Guidelines Analysis of imputed income portion of the Opinion by the When Brian Moore found out that the Indiana Court of Appeals had ruled in his favour his first thought was, as he says, “Great. Now I don't have to worry about going to jail over something I couldn't do.” The Court in its decision concluded that the trial court lacked supporting evidence to find that Mr. Moore was underemployed and income should be imputed for child support purposes. Mr. Moore said, “I feel vindicated.” Based on this decision he is enthusiastic about focusing on rebuilding his business and providing for his children rather than supplementing the lifestyle of their other parent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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review scheduled for public comment
Indiana Court of Appeals in Moore v Moore, 09 May, 2014
The issue on review for the Court was:
“Did the trial court abuse its discretion when it imputed income to Father?”
Brian Moore contended upon appeal that the trial court erred when it imputed income to him based upon the question to him by counsel for Kristy Moore of whether he could earn $50,000 per year. Mr. Moore did not respond that he could not but instead objected as to the question calling for speculation. He then testified that he had never made that much as a contractor. He further testified that he had earnings of around $400-$500 per week the prior year but because of the onslaught of litigation perpetuated by Mother and having acted as his own attorney his business profits were down to about $100 per week and he was borrowing money from his mother to make ends meet.
The GAL report stated: “Mr. Moore, despite having a master’s degree in Finance from the IU School of Business, has failed to keep a steady job.” What the GAL, who was conclusively proven to have committed perjury during the proceedings[fn1], overlooked is what the Court of Appeals noted;
“Father has an undergraduate degree from Butler and a MBA from Indiana University. He has worked as an independent contractor, however, since before the marriage.”
The trial court stated at one point “I have great concern about the fact that Father has not had any stable employment since 2008” which is a period preceding the dissolution of marriage. The Court of Appeals went on to note that Father “stated that he had lacked motivation to work and that the construction market had declined, resulting in no income in 2010 and only a few small remodeling jobs in 2011.” Further, that “at the August 2012 hearing, however, Father testified that he was making between $400 and $500 per week.” It becomes clear from this that Mr. Moore's occupation prior to, during the marriage and since the December 2009 dissolution had been in the building trades.
Despite this clear knowledge about Father's work history and income, with respect to Father’s income, the trial court made the following findings:
36. Father is a “general contractor” who is doing work for Woodridge. Father testified that he works between 20-40 hours per week and that he can control his schedule. Father failed to tender any evidence regarding his pay from Woodridge. Father refused to provide any pay information to the GAL.
37. Father receives money from his Mother each month; he estimated the sum to be around $1,000.00.
38. Father testified that he would be able to earn $50,000.00 per year, but for the preparation of his case in this cause.
39. The Court concludes that Father is purposefully under-employed and is capable of earning at least $961.54 per week. Father’s request that the Court use $100 per week as his income is unreasonable and the Court does not find Father’s testimony credible that he only earns $100 per week.
The Court of Appeals stated “Among other things, the court ordered that . . . Father was under-employed and capable of earing[sic] at least $961.54 per week.” As a basis for vacating the child support order the Court concluded, “Father contends that the trial court erred by imputing income to him for child support purposes in the amount of $50,000 per year. He claims the evidence does not support this amount. We agree.”
In support of the Court's conclusion that the trial court had improperly imputed income to Mr. Moore it relied upon the following statements of the evidence and argument.
“The original settlement agreement set Father’s weekly income at $428 per week. Further, eight months before the final day of the underlying evidentiary hearing, Father testified that he was earning between $400 and $500 per week.”
“The trial court determined that Father was capable of earning $50,000 per year. This finding is not supported by the evidence and is clearly erroneous. When asked by Mother’s counsel if he was capable of earning $50,000 a year, Father testified that he had never made that much in his current field, which he had been in throughout the marriage and thereafter. At the time of dissolution, the parties agreed that Father was earning about $22,200 per year. Nothing in the record indicates that Father’s income potential improved, let alone more than doubled, since the dissolution.”
“On remand, the trial court is directed to reconsider Father’s weekly income and child support obligation. This may be done by returning to the original income figure of $428 per week based upon Father’s failure to establish different income figures, or the court may find that an increase is warranted based upon the regular and continuing support Father receives from his mother. Once Father’s gross weekly income is determined, the trial court shall recalculate Father’s support obligation accordingly.”[fn2]
In this case the trial court should reassess the wrongly imputed income figure that resulted in an erroneous support order of $139 per week to reflect that Mother should be paying Father[fn3]. However it has come at a significant cost. Mr. Moore has sold business equipment, was forced to terminate his business space lease and cut back on his working hours to pay for the appeal costs[fn4] and write the appeal himself. Additionally, he was found in contempt of court and sentenced to a jail term for failure to pay the support based upon imputed income and has appealed that ruling[fn5]. The contempt has been stayed pending results of the appeal which should conclude that the sentence be vacated based upon the underlying support award lacking an evidentiary basis.
When Mr. Moore's subsequent appeal on contempt for failure to pay court ordered child support is issued I will bring those results to you.
notes
1] Del Anderson, the GAL from Child Advocates, Inc., testified that the Pendleton Elementary School had to go on “lock-down” because of a threat made by Mr. Moore. However, the school principal, school system superintendent, and the Pendleton Chief of Police all testified that there had been no threat nor any “lock-down” as alleged by Mr. Anderson who fabricated the story.
2] [T]he regular support Father received from his mother could be properly imputed as income. See Glass v. Oeder, 716 N.E.2d at 417 (“Glass’ rent-free living arrangement provides him with a lower living cost that presumably frees up money for the support of his children and was a proper basis for the trial court to impute income”).
3] Mr Moore has completed a CSOW using income for Mother as she testified and his own at $428 per week. Based upon the current parenting time arrangement she would pay to him $5 per week.
4] In addition to the $250 filing fee and nearly $2500 for the transcript Mr Moore also had to pay my professional fees for coaching him and keeping him focused during the time he wrote his appeal.
5] That cause number is 49A04-1310-DR-499 which has been fully briefed.
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.
Monday, May 5, 2014
Proposed Amendments to 2014 Indiana Child Support Guidelines
The Domestic Relations Committee[DRC] of the Indiana Judicial Center has scheduled a hearing for public input on amending the Indiana Child Support Guidelines[ICSG]. This hearing will be held on 16 May 2014 from 10:00a.m. until noon in the chambers of the Indiana Supreme Court. Public comment may also be submitted in writing. More details are available HERE.
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I propose five specific amendments to the ICSG. Two of which I will briefly propound here and seek input from readers. First, it seems apparent that there is a “nanny factor” built into the support calculation. That is, as was in my case and many others, the ordered support amount clearly exceeds the actual costs of support for the child. Thus, there must be a portion of the support attributable to providing delivery of the support; Supervising, transporting, shopping, preparing meals, and so forth. In essence a nanny payment. I would personally be offended to receive such payments as I did not have a child out of love of money but, rather, for love of my child. In intact families these efforts can be undertaken by either parent or a service provider such as a nanny. The same opportunity should be available to dual residence families rather than the support paying parent being forced to “hire” the other parent to perform these duties when the paying parent is available to do so.
Therefore, I propose a two-tiered payment structure be considered. A rate for a parent who purchases and delivers groceries, takes the children shopping for clothing, and engages in the activities that make one a parent to the child not just a weekend play date for entertainment purposes. For the parent who abandons or rejects these responsibilities and dumps them on the custodial parent then a higher rate considerate of the custodial parents' “opportunity costs” is appropriate.
Second, I propose calculating actual expenditures for the child. As with any matters related to financial decisions different people exhibit different temperaments when it comes to earning, spending, and saving. These variances not only extend across cultures but populations within cultures. Some populations or individuals have such a predilection to consumerism that their spending exceeds their resources in either earnings or savings. In recent years this was evident through housing foreclosures and financial crises in places such as Greece. Thus, bankruptcy may be their escape. On the opposite end may be those who are morally opposed to consumerism who reuse, recycle, and re-purpose while enjoying substantial growth in their savings or charitable donations. While both could have identical incomes, the amounts apportioned to rearing their children could vary widely.
So whether future guidelines are based upon reporting data from parents, the collection of additional data prior to the setting of initial support orders I feel is essential to retaining or establishing confidence in the judiciary and the child support payment system. Regardless of whether any such “nanny factor” or parenting time and support presumptions are considered I do believe that we need to substantially expand the CSOW to collect more information. Parents are well aware of the costs of providing support to their children, much of which can be documented – housing, clothing, and medical insurance or care – through distinguishable payments.
Housing expense is easily calculated if a parent rents an apartment. If the parent has a bedroom for the child then the difference between the charge for a unit with one less bedroom and the actual unit being rented is the cost for the child plus a small percent of utilities.
The CSOW should be expanded to include more line items of actual expenses incurred on behalf of the child. By narrowing the range of discrepancy between a support order based upon actual costs and a support order based upon a guideline presumption parents should be more satisfied that the amount is just. Additionally, petitions for modification and subsequent hearings should decrease as parents who believe that the order is unjust would be less likely to be able to meet the statutory requirements for a modification.
Here are my previous postings about the 2014 amendments to the ICSG.
Public input sought for 2014 Indiana Child Support Guidelines amendments - May 16, 2014
Federal Statute Considerations for 2014 Indiana Child Support Guidelines Amendments
2014 Indiana Child Support Guidelines Amendments - Parenting Time Credit
2014 Indiana Child Support Guidelines Amendments - Insurance and Health Costs coverage
Update on amending the 2014 Indiana Child Support Guidelines
Indiana Child Support Guidelines to be Amended in 2014
Please send comments or suggestions about these proposals to me.
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.
