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Dad who took son owes arrearage to mom

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The Indiana Court of Appeals split today in its decision of who should receive back child support payments from a father who kidnapped his son for 16 years before turning himself in when the son was 23 years old.

The majority in Mark E. Hicks v. Tammy L. (Hicks) Smith, No. 54A01-0904-CV-189, ruled Tammy Smith was entitled to the child support arrearage owed by her ex-husband, Mark Hicks. In 1992, Smith was granted sole custody of their 6-year-old son Brandon, with Hicks making weekly child support payments.

But Hicks never paid and instead kidnapped Brandon in March 1992 and disappeared until he surrendered to police in August 2008.

During the time he was gone, the trial court found Mark in contempt and found him in arrears totaling more than $7,000 in 1994. After he resurfaced, Smith filed a motion to collect on the 1994 judgment, plus the arrearage that had accrued since then. The trial court granted it and order he pay on the 1994 order up until Brandon's 21st birthday.

Hicks appealed the order, not because he doesn't think he should have to pay child support, but because he thinks the money should go to Brandon, not his ex-wife. He argued because Brandon had been in his sole care and custody during the 16 years they were missing, Smith would be unjustly enriched by an award of support arrearage.

The judges all noted the criminal charges pending against Hicks for taking his son, but said they had to focus on the family law case before them.

"If this was a typical case involving an arrearage - that is, if Mark had accrued an arrearage while Tammy had Brandon in her custody until he was emancipated - it would be easy to affirm the trial court's order awarding a judgment for the arrearage to Tammy," wrote Judge Margret Robb for the majority. "On the other hand, if Mark and Tammy had agreed that Mark would take custody of Brandon in lieu of paying child support despite the trial court's order otherwise, it would be easy to reverse the trial court's order. However, neither situation is presented by these facts."

The majority presumed that although Smith didn't provide support for Brandon while he was missing, she maintained a home for him and made decisions during that time based on the possibility he would return. The majority also found no authority for awarding the arrearage directly to Brandon, so based on the circumstances of the case, they upheld the lower court's ruling.

Judge Carr Darden dissented because he believed under the circumstances of the case, awarding the arrearage to Smith was an error. Smith didn't present any evidence of actual expenses she incurred during Brandon's absence. In addition, Hicks fed, clothed, and cared for Brandon while they were missing and "while it may not be proper to fully credit him for those expenses in the ultimate determination of his legal liability for child support, I find the order appealed to constitute an unwarranted windfall for Mother," he wrote.

Judge Darden would remand for a hearing on evidence of actual expenses by Smith or for further consideration of Hicks' argument that the owed child support should be given to Brandon in a trust.

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  1. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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