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Child support changes targeting the rich?

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Indiana Lawyer Focus

A case before the Indiana Court of Appeals calls into question the constitutionality of the state’s new child support guidelines, challenging the revisions that last year altered the payment scheme for high-income earners and raised the ceiling on child support obligations.

The case has the potential to impact custody and divorce dockets throughout the state, raising an issue that is being watched nationally and drawing some family law organizations to criticize what’s being dubbed “hidden alimony.” Some say it goes against the purpose of child support.

In Allan C. Bir v. Cynthia Bir, No. 06A01-1009-DR-449, a divorced father and mother are battling over the extent to which the father owes child support. Allan Bir is an Indianapolis businessman who owns Mi-Tech Metals, and he and his wife Cynthia Bir filed for divorce in early 2008 after 18 years of marriage. The trial court later that year approved a preliminary entry for $4,300 per month in support of the couple’s two minor children.

After Indiana’s revisions to its child support guidelines took effect in 2010, Cynthia filed a motion to modify that child support based on the new income calculations that came to fruition in 2009. This was the first revision of its kind in years, and it changed the mathematical formula the state had used to calculate child support for more than 20 years.

In making its amendment recommendations, the state Judicial Conference domestic relations committee used differing economic data and methodologies to determine weekly support payments for different income ranges and how to apportion the obligations between parents.

Previously, multiple factors were entered into a formula for a particular child support calculation, and the most substantial ones were the parents’ respective incomes. But the former guidelines put less weight on those once a parent’s income reached $4,000 a week or $208,000 a year, and the child support obligation would essentially “plateau.”

The revised guidelines eliminated that “plateau effect,” meaning that a child support obligation now continues increasing directly as income increases – regardless of the particular child or family situations that might be at play. The modifications aren’t automatic or even guaranteed, and it’s up to each local court to review a particular matter to determine if an increase is warranted.

In the Bir case, both parties disagree about what the increase should look like. Allan had previously been paying $4,300 a month, but the new guidelines called for more. Cynthia told the court that she wanted the children to continue enjoying the same lifestyle as they’d had prior to the separation, including traveling abroad. She testified that they’d previously been able to use the family’s private plane but now have to travel commercially, and they have also had to cut back on special trips.

David David

In mid-2010, Boone Circuit Judge Steven David – who has since been elevated to the state’s Supreme Court – held a hearing on that matter and ultimately issued his own order about what the Bir payments should look like.

Though the new guidelines recommended a weekly support obligation of about $37,786 per week, Judge David determined that significant 3,678 percent increase was not warranted. Nothing in the family’s case had changed since the previous amount was approved, he ruled, and that hike would be “unjust.”

Instead, the trial judge issued a provisional order that increased the amount from $4,300 a month to $36,980 per month – a 760 percent increase, on top of what his attorneys say he pays separately for private school and other items.

Citing his children’s expenses, Allan filed a motion to review the provisional child support order on the grounds that the children only needed $8,600 per month and that the father’s budget is not now inadequate or unreasonable.

Judge David denied the motion to correct, and Allan appealed.

While briefing is in its early stages before the Court of Appeals, the Bose McKinney & Evans legal team representing Allan filed an emergency transfer request to the Indiana Supreme Court in mid-November.

The attorneys argued that the guidelines are unconstitutional and the Indiana Court of Appeals doesn’t have the authority to go against them, so the justices needed to decide the issue first. The mother’s attorneys argued that at the trial level, Judge David had deviated from the guidelines’ proscribed amount and issued a provisional order calling for less than a quarter of the amount suggested by the guidelines, and so a constitutional challenge wasn’t ripe for review by the higher court.

Bryan Babb Babb

Both sides disagreed on whether this case raised an issue of great public importance. With Justice David recusing himself on the case he’d handled as a trial-level judge, the other four justices denied the emergency transfer request and left jurisdiction with the intermediate appellate court.

Briefs in the Bir case describe the weekly incomes at less than $10,000 using an “income shares model,” while the incomes higher than $10,000 a week are described as using a “percentage of obligor income model” or “assumption.”

Allan’s attorneys argue that it simply does not take $37,786 weekly or almost $2 million a year to raise two children. The father argues that the guidelines produced “arbitrary and capricious awards” and denied him due process and equal protection, since lower income earners aren’t considered the same way when calculating their child support obligations.

Attorneys for Allan argue, in part, that the new guidelines will fuel more litigation and cause more problems for families and children facing divorces and custody issues. But Cynthia’s attorneys disagreed, saying that it should actually help parties reach agreements in these cases.

Mulvaney Karl Mulvaney

“While litigation may have a negative impact on the children of divorced parents, the potential for litigation is not a result of the Guidelines, but a result of divorced parents’ refusal to use the Guidelines in a reasonable attempt to reach an amicable agreement,” attorney Karl Mulvaney with Bingham McHale wrote in the brief. “Parents dissolving their marriage are capable of setting the tone and bear the responsibility of working toward amicable resolutions of their disputes and protecting their children from the effects of litigation. Ultimately, the impact of litigation on a small number of families, especially when it could be controlled by the parties themselves, is not an issue of great public importance.”

Other states have addressed the issue, the briefs state. Appellate courts in Hawaii, Kentucky, Connecticut, Delaware, Michigan, Missouri, and Texas have touched on impermissible takings and what constitutes “something other than child support.” At this point, the mother’s attorneys haven’t filed a brief addressing the constitutional claims and instead focused on the procedural and jurisdictional issues related to the emergency transfer.

A trio of family-focused organizations have signaled their interest in this case and the overarching issue, signing on as amicus curiae parties in the emergency transfer request. The American Coalition for Fathers and Children, the Institute for the American Family, and Fathers and Families are watching the outcome and say it could have long-term impacts on policy and statutory development not only inside Indiana but nationally.

The groups pushed for quick resolution of this case not only for the Bir children, but because they, in an amicus brief, argued that this could jeopardize Indiana’s ability to receive federal funding as a result of “insufficient economic data at the high earner level.”

“There are issues in this case which directly address the intersection of federal and state policies and statutes,” wrote the IAF, pointing to topics such as whether state child support guidelines comply with Criminal Federal Rule § 302.56 that requires states to consider “economic data on case data” and the cost of raising children in setting these types of guidelines. “Unrealistic, excessive child support orders such as the one issued in Bir v. Bir do not promote shared parenting; instead they promote the opposite by pitting parents against one another in litigation and creating situations where one parent feels disadvantaged.”•

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  • lack of legal or statutory definition of child support in Indiana Code
    The Indiana Supreme Court justices seem to have forgotte the Kansas "Three Pony Rule," which states that "'no child, no matter how wealthy the parents, needs to be provided [with] more than three ponies.'" (quoting In re Patterson, 920 P.2d 450, 455 (Kan. App. 1996)). I actually have a challenge for the Indiana Supreme Court. I challenge the court to show any litigant or practitioner a legal or statutory definition of child support in either the Indiana Code or the child support guidelines so that both litigants and judges can determine what the "...just and appropriate award" required by the Family Support Act should be in a given case in order to have a reference standard to compare the presumptive award to for review and rebuttal. This legal or statutory definition would also allow judges to determine if the guidelines had been applied fairly and appropriately in a given case, which is also a requirement of the Family Support Act. And for the record, the phrase "based on the premise" in both the Indiana Code and the Child Support Guidelines indicates that the statements following the phrase are a goal or statement of purpose, which is not the same as a legal or statutory definition...
  • shared responsibility
    This is the same issue that I have brought up with family court judges here in Indiana.

    Child support should be a shared responsibility instead of requiring the non-custodial parent to preserve the dependent children (and by inference, the custodial parents) LIFESTYLE.

    Minnesota allows the creation of a Child Support Plan that includes a special checking account that both parents contribute to in order to share the responsibility for providing for their children's needs.

    Indiana should follow their lead instead of maximizing child support awards in all circumstances just to increase the money the state collects from the Child Support Performance and Incentive Act.

    Child support should be just that - not a profit center for the state.
  • Change Child Support
    I don't think that a man (since they are the non-custodial 99.99% of the time) making more money should be a good enough reason to increase child support if the mother has a part time job (unless the child is severly handicapped). They should make the mother get a full time job before they increase child support.

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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