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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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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