ILNews

Court: father not responsible for late payment

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals reversed a trial court denial of a father's post-dissolution motion for rule to show cause why his ex-wife shouldn't be held in contempt, and remanded for the court to enter a new order.

In John L. Richardson v. Susan E. Hansrote, No. 72A01-0706-CV-288, Richardson appealed the trial court denial, raising three issues: whether the trial court erred when it determined he had a child-support arrearage; whether the error by the court clerk, who mistakenly applied Richardson's child support payment to another account, is attributable to Richardson; and whether the trial court erred in determining a child support obligation paid by income withholding is not paid until it's received in the clerk's office.

In the original divorce decree, Richardson was ordered to pay $168 per week to the Scott Superior Court clerk every Friday. The dissolution court also found Richardson to be in arrears, ordering him to pay $32 a week until the arrearage was paid in full; the court never mentioned how much he owed in arrears. Finally, the court allowed Richardson to claim the minor children on his taxes in odd-numbered years as long as he was current on his child-support payments. Hansrote was allowed to claim the children on her taxes in even-numbered years.

Three years later, the parties executed an agreed modification of the original decree, which lowered Richardson's payments to $142 per week, and allowed for the payments to be taken out by an income withholding order. Until the order took effect, he was required to continue to pay the clerk's office directly.

In early 2006, Hansrote told Richardson she was claming the children on her taxes for 2005 because the child-support payments were in arrears that year. Richardson discovered the clerk's office had credited two of his payments to another person's account. The clerk adjusted one payment because Richardson had a receipt, but he did not have one for the other payment. The second payment was credited to his account in February 2006.

Both parents filed their 2005 tax returns claiming the children, and the IRS ordered Richardson to file an amended return and imposed penalties against him.

In January 2007, Richardson filed a motion for rule to show cause to hold Hansrote in contempt for claiming the children on her taxes in an odd-numbered year. The court denied his motion, finding he was in arrears for $510.

The Court of Appeals found insufficient evidence to support the determination Richardson had accrued a child-support arrearage. The trial court relied on the clerk's records to show Richardson owed $510. In the original decree, Richardson was found to be in arrears, but at the hearing on Richardson's motion, both parties agreed there was no arrearage at the time of the decree.

Because the trial court never stated the amount of money owed in arrearage, it's impossible to determine how much Richardson would have owed as of Dec. 31, 2005. Relying on the clerk's record was an error by the trial court because the clerk is not responsible for calculating arrearages, just for maintaining a record of payments received, wrote Judge Edward Najam.

Also, Richardson should not be held accountable for the clerk's error in applying his payments to the wrong account. At the time he made the payments, Richardson was entitled to receive credit for them as if he had paid them directly to Hansrote.

Finally, the Court of Appeals found the trial court erred when it determined Richardson's last payment of the year through income withholding was late because it was not received by the clerk's office until Jan. 3, 2006. The last payment of 2005 was due Dec. 30; however, his employer did not send the payment by electronic funds transfer until the following week. Because New Year's Day fell on a Sunday, the office was closed Monday, Jan. 2. The appellate court determined that Richardson is not at fault for the one business day delay in the payment that was due Dec. 30, wrote Judge Najam.

The Court of Appeals remanded to the trial court to reconsider the arrearage issue and enter a new order on Richardson's motion for rule to show cause; the court should also revisit whether Hansrote was in contempt of the decree by claiming the children on her 2005 taxes.
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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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