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.”•


  • hidden spousal support in child support orders
    What Mr. Bir is paying is actually Undifferentiated Family Support, which is a mixture of child support and spousal maintenance. If the courts had labeled accurately labeled the transfer payment, I think that Mr. Bir would have fewer objections to paying it because both Spousal Maintenance and Undifferentiated Family Support are tax deductions for the paying party and taxable to the receiving party. I brought this issue up with my family court judge when my voluntarily unemployed ex-wife was using the 'child support' transfer payment to support both herself and out children. Said family court judge stated that I did not know what I was talking about because I did not have a Juris Doctorate, despite my having a printout with dictionary definitions of the legal terms that I was using for documentation.
  • Child Support
    Child support should be a case by case basis. If the mother or father has sole custody and the other was the sole income provider, that individual should provide care for the child that maintains the children's current lifestyle. There should never be incentive to get a divorce. Hamilton County's divorce rate along with the world rate is too high because it's too easy.
  • 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 have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

    2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

    3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

    4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

    5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.