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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. Mr. Ricker, how foolish of you to think that by complying with the law you would be ok. Don't you know that Indiana is a state that welcomes monopolies, and that Indiana's legislature is the one entity in this state that believes monopolistic practices (such as those engaged in by Indiana Association of Beverage Retailers) make Indiana a "business-friendly" state? How can you not see this????

  2. Actually, and most strikingly, the ruling failed to address the central issue to the whole case: Namely, Black Knight/LPS, who was NEVER a party to the State court litigation, and who is under a 2013 consent judgment in Indiana (where it has stipulated to the forgery of loan documents, the ones specifically at issue in my case)never disclosed itself in State court or remediated the forged loan documents as was REQUIRED of them by the CJ. In essence, what the court is willfully ignoring, is that it is setting a precedent that the supplier of a defective product, one whom is under a consent judgment stipulating to such, and under obligation to remediate said defective product, can: 1.) Ignore the CJ 2.) Allow counsel to commit fraud on the state court 3.) Then try to hide behind Rooker Feldman doctrine as a bar to being held culpable in federal court. The problem here is the court is in direct conflict with its own ruling(s) in Johnson v. Pushpin Holdings & Iqbal- 780 F.3d 728, at 730 “What Johnson adds - what the defendants in this suit have failed to appreciate—is that federal courts retain jurisdiction to award damages for fraud that imposes extrajudicial injury. The Supreme Court drew that very line in Exxon Mobil ... Iqbal alleges that the defendants conducted a racketeering enterprise that predates the state court’s judgments ...but Exxon Mobil shows that the Rooker Feldman doctrine asks what injury the plaintiff asks the federal court to redress, not whether the injury is “intertwined” with something else …Because Iqbal seeks damages for activity that (he alleges) predates the state litigation and caused injury independently of it, the Rooker-Feldman doctrine does not block this suit. It must be reinstated.” So, as I already noted to others, I now have the chance to bring my case to SCOTUS; the ruling by Wood & Posner is flawed on numerous levels,BUT most troubling is the fact that the authors KNOW it's a flawed ruling and choose to ignore the flaws for one simple reason: The courts have decided to agree with former AG Eric Holder that national banks "Are too big to fail" and must win at any cost-even that of due process, case precedent, & the truth....Let's see if SCOTUS wants a bite at the apple.

  3. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  4. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  5. Please I need help with my class action lawsuits, im currently in pro-se and im having hard time findiNG A LAWYER TO ASSIST ME

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