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Judges disagree on retroactive support issue

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In a matter of first impression, a panel of Indiana Court of Appeals judges couldn't agree on whether an initial support order can be retroactive to a date preceding the filing of a petition for resolution. The judges disagreed as to whether a court has the authority to reach into an intact marriage and order a party to pay child support to the other.

In In re the marriage of Raymond Boone v. Tammy Boone, No. 45A03-0906-CV-243, the majority concluded Indiana courts don't have the authority to order a parent to pay some form of child support during a time when the parties' marriage was still intact in the eyes of the law. Judges Ezra Friedlander and Cale Bradford interpreted the silence in the Indiana Child Support guidelines prohibiting retroactive payment of child support in a case like this to mean the Indiana legislature didn't intend for retroactive child support predating the filing of a dissolution decree because the legislature had demonstrated the ability to authorize retroactive child support in other areas.

Judge Edward Najam, however, interpreted the silence to mean nothing prohibits the ordering of payment of the retroactive child support.

"Given the robust approach our legislature has taken to ensure that all children are supported adequately by their parents until the age of majority, I cannot imagine that the legislature intended for married parents to be granted a full reprieve from their child support obligations simply because they are married," he wrote.

Retroactive modification of child support is prohibited except where explicitly authorized and can relate back in a time only to the filing of the request for it, except in paternity actions, wrote Judge Friedlander. In dissolution actions, the courts get involved when the petition is filed and prior to this it has no jurisdiction to issue orders pertaining to matters involving children except in neglect or abuse cases.

But Judge Najam countered that courts routinely delve into the facts and circumstances of a marriage as they existed prior to filing for dissolution. "Intact marriage" isn't defined in the law and it means uninjured. But the Boone marriage wasn't intact as they were living apart for several years, and Raymond stopped paying non-court-ordered child support before he filed for dissolution, wrote Judge Najam.

The majority ruling won't immunize deadbeat parents, as Judge Najam supposes, wrote Judge Friedlander.

"To the contrary, our holding in no way diminishes or abrogates the common-law duty of support, nor does it diminish the means by which the State or custodial parents may compel a recalcitrant or neglectful parent to fulfill that duty," he wrote. "Rather, we merely decline to add a means of imposing a support arrearage, for that is exactly what the rule proposed and embraced by the dissent would accomplish."

The majority reversed the portion of the Boones' dissolution order that required Raymond pay child support retroactive to the date the dissolution was filed. The case was remanded with instructions to modify the support order consistent with the opinion.

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. 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!!!

  3. 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?

  4. 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?

  5. 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.

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