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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. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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