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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. Uh oh, someone is really going to get their panti ... uh, um ... I mean get upset now: http://www.theguardian.com/us-news/2015/mar/31/arkansas-passes-indiana-style-religious-freedom-bill

  2. Bryan, stop insulting the Swedes by comparing them to the American oligarchs. Otherwise your point is well taken.

  3. Sociologist of religion Peter Berger once said that the US is a “nation of Indians ruled by Swedes.” He meant an irreligious elite ruling a religious people, as that Sweden is the world’s least religious country and India the most religious. The idea is that American social elites tend to be much less religious than just about everyone else in the country. If this is true, it helps explain the controversy raking Indiana over Hollywood, San Fran, NYC, academia and downtown Indy hot coals. Nevermind logic, nevermind it is just the 1993 fed bill did, forget the Founders, abandon of historic dedication to religious liberty. The Swedes rule. You cannot argue with elitists. They have the power, they will use the power, sit down and shut up or feel the power. I know firsthand, having been dealt blows from the elite's high and mighty hands often as a mere religious plebe.

  4. I need helping gaining custody of my 5 and 1 year old from my alcoholic girlfriend. This should be an easy case for any lawyer to win... I've just never had the courage to take her that far. She has a record of public intox and other things. She has no job and no where to live othe than with me. But after 5 years of trying to help her with her bad habit, she has put our kids in danger by driving after drinking with them... She got detained yesterday and the police chief released my kids to me from the police station. I live paycheck to paycheck and Im under alot of stress dealing with this situation. Can anyone please help?

  5. The more a state tries to force people to associate, who don't like each other and simply want to lead separate lives, the more that state invalidates itself....... This conflict has shown clearly that the advocates of "tolerance" are themselves intolerant, the advocates of "diversity" intend to inflict themselves on an unwilling majority by force if necessary, until that people complies and relents and allows itself to be made homogenous with the politically correct preferences of the diversity-lobbies. Let's clearly understand, this is force versus force and democracy has nothing to do with this. Democracy is a false god in the first place, even if it is a valid ideal for politics, but it is becoming ever more just an empty slogan that just suckers a bunch of cattle into paying their taxes and volunteering for stupid wars.

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