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Ex-wife not required to pay attorney fees under FDCPA

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A woman does not have to pay the attorney fees for her ex-husband after she sought more than $135,000 in owed child support after he failed to pay for 16 years, the Indiana Court of Appeals ruled. The trial court ordered her to pay the fees under the Fair Debt Collection Practices Act.

Jill and Mark Finfrock divorced in Porter County in 1994. Mark Finfrock only paid child support for about seven months after the divorce because he lost his job.

Jill Finfrock didn’t attempt to collect on the owed support until 2011, when she used National Child Support, a child support-collection firm based in Ohio. By that time, the children were emancipated.

The exes agreed in December 2011 that Mark Finfrock owed $135,856.74, which was reduced to judgment. He would pay $280 each week to his ex-wife through an income withholding order.

Mark Finfrock has not missed a payment since, but Jill Finfrock sought a qualified domestic relations order to be attached to his 403(b) retirement account. The trial court initially signed the order, but later rejected Jill Finfrock’s request and ordered her to pay $1,645 in attorney fees to her ex-husband.

The attorney fee order was an error because the award was based on perceived violations of the FDCPA, the Court of Appeals decided in Jill Finfrock a/k/a Jill Bastone v. Mark Finfrock, 64A05-1209-DR-489.

“It is clear that an attorney who regularly engages in consumer debt collection activity, even when that activity consists of litigation, is a ‘debt collector’ as defined by the FDCPA,” Judge Paul Mathias wrote. “However, Mother appears to be correct that the FDCPA is not applicable to ‘debt’ that is the result of a child support arrearage, even if that arrearage has been reduced to a judgment.”

The judges affirmed the refusal by the trial court to issue a qualified domestic relations order attaching to Mark Finfrock’s retirement account. The parties agreed he would pay nearly half of his weekly income to erase the arrearage. In addition, it’s up to the discretion of the trial court whether his pension plan may be attached or garnished to satisfy the support arrearage.

The COA did not address Jill Finfrock’s claim on appeal that the court erred in ordering her ex-husband to pay his weekly payment to the Indiana State Central Collections Unit instead of National Child Support.

“The trial court did not actually alter Father’s income withholding order to direct that the payments go to INSCCU, and we need not consider whether the trial court erred in opining that Father’s income withholding order should be altered to comply with new federal rules,” Mathias wrote in remanding for further proceedings.

 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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