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.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions. 
Friday, May 16, 2014
Judge Lynn Murray's miscalculation of child support arrears cost a father $7,025
Friday, March 21, 2014
2014 Indiana Child Support Guidelines Amendments - Insurance and Health Costs coverage
21 March 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 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.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
