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: Sam Hasler's Indiana Divorce & Family Law Blog

Child Support: New Court of Appeals Case - arrears, interest

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Yesterday, The Indiana Court of Appeals issued its opinion in The Matter of McGuire (PDF format) The Court of Appeals decided that parents sending a child to live with a third party does not end the non-custodial parent's child support obligation (distinguishing Whited v. Whited, 859 N.E.2d 657 (Ind. 2007) (PDF format). The Court of Appeals held the father needed to pay daughter for the child support accruing while she lived with the third party (mother brought daughter into the case as a third party.)

What the Court of Appeals wrote about the calculating of child support arrears ought to be a bit troubling:

...We have carefully reviewed the four page document submitted from the Indiana Support Enforcement Tracking System and find it could support different conclusions regarding the amount of child support Father had paid toward his obligation to Mother. Accordingly, we cannot find clearly erroneous the court?s finding Father paid $2,048.00 toward his obligation to Mother.

(Opinion at 7; footnote omitted). Been there and seen that. The Court of Appeals addressed recalculating the arrears and amount father was to pay on the arrears before addressing prejudgment interest.

Other than the arrearage due, I think the prejudgment interest the most important issue. The statute controlling the issue is Ind. Code § 31-16-12-2. The statute says it must be requested by the person entitled to the child support payments. The trial court found that mother had waited to long to enforce her child support order, and denied interest. The Court of Appeals relied again on the Whited case summed up the problems with mother's case in this paragraph:

Mother waited nearly ten years from Daughter?s emancipation to file an action regarding Father?s arrearage. It appears Father had not paid child support for a number of years prior to Daughter?s emancipation. Accordingly, we cannot find the court abused its discretion by concluding prejudgment interest was inappropriate based on the number of years Mother acquiesced in Father?s failure to pay....

(Opinion at 9; citation omitted).

The Court of Appeals upheld the trial court's denying the mother an award of attorney fees. From the following, I assume the problem was a failure of evidence:

...The court did not consider the factors discussed in Sutton, such as the relative incomes of the parties; however, as we find no evidence in the record regarding the income or earning ability of Mother or Daughter, we need not remand for the court to reconsider whether to impose attorney fees on Father. Accordingly, we find no abuse of discretion in the court?s denial of Mother?s request for attorney fees.

Another reminder that time is the enemy - those who wait too long will not find the law charitable towards their delay.

Full post as published by Sam Hasler's Indiana Divorce & Family Law Blog on February 01, 2008 (boomark / email).