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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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