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Judges reverse support modification for lack of jurisdiction

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The Indiana Court of Appeals reversed a lower court’s ruling that Illinois proceedings on child support were null because jurisdiction was never properly transferred, noting it found an ex parte proceeding that excluded the mother “extremely troubling.”

Judith Lombardi and Robert Van Deusen divorced when they lived in Clark County. Van Deusen was ordered to pay $45 a week in child support. He later moved to Illinois and the parties, following the requirements of a child support enforcement transmittal based on the Uniform Interstate Family Support Act, had jurisdiction over child support moved to DuPage County, Ill. The Clark Superior Court signed and entered an order transferring jurisdiction. The Illinois court modified Van Deusen’s obligation to $1,000 per month and established an arrearage of $5,000.

Van Deusen later asked the Clark County court to reassume jurisdiction, arguing Illinois didn’t have jurisdiction anymore because he now lived in Pennsylvania. Lombardi objected. Magistrate William Dawkins held a hearing on the motion to reassume jurisdiction, but had a 36-minute conference in his chambers with Van Deusen’s attorney and a Clark County deputy prosecutor, who supported the father’s motion. The magistrate didn’t allow Lombardi to attend and evidence was presented that was referred to at the hearing but never actually introduced into evidence.

Magistrate Dawkins cut mother’s testimony short and entered an order granting Van Deusen’s motions. He reinstated the original child support order of $45 a week.

The Court of Appeals reversed in Judith C. Lombardi v. Robert R. Van Deusen, No. 10A01-0910-CV-491, finding the magistrate erred by basing his ruling in part on the fact that Lombardi and the child have always lived in Clark County. Her place of residency is irrelevant under the UIFSA because both parties filed written consent with the Indiana court to move jurisdiction.

Indiana relinquished jurisdiction in November 2002 and Illinois properly assumed continuing, exclusive jurisdiction before modifying the child support order, the appellate court held. The Clark County court had no authority to make a retroactive modification to the order that would modify the Illinois court’s order, wrote Chief Judge John Baker. Jurisdiction hasn’t been properly re-established in Indiana, and when that occurs, the Clark County court could only issue a prospective modification.

The judges also found Lombardi’s due process rights were violated when the magistrate held a conference in his chamber’s that excluded her.

“It would be difficult to imagine a clearer example of prohibited ex parte communications, but the story does not end there. The conference lasted for thirty-six minutes - just eleven minutes shorter than the hearing itself. Evidence was discussed and documents changed hands that were never formally made part of the record - until Mother tracked down the documents herself and requested, after the fact, that they be included,” wrote Chief Judge Baker.

They reversed the trial court’s judgment and ordered that this case be re-assigned to a judicial officer other than Magistrate Dawkins.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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