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Judges split on child support modification

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An Indiana Court of Appeals judge dissented from his colleagues, finding their decision regarding child support promotes “formalism over fairness and legalism over common sense.”

Timothy D. Sexton challenged the denial of his petition for emancipation regarding one of his three children and for modification of child support. After divorcing, Donna Sedlak was eventually given primary physical custody of their three children and Sexton was ordered to pay child support. In 2005, Sedlak filed a petition for modification of child support claiming the 2002 order was unreasonable and asked that it be discontinued. No action was ever taken on that petition.

In 2006, the parents executed a notarized custody and child support agreement, agreeing two children would live with Sexton and neither party would pay child support. This wasn’t ever filed with the court. A couple of years later, Sexton quit his job and collected unemployment.

The trial court held a hearing on Sexton’s petition for emancipation and child support modification and found his net arrearage to be more than $28,000 and modified his child support to $117 per week back to June 2009 for his two dependent children. By this time, one child was emancipated.

In Timothy D. Sexton v. Donna M. (Sexton) Sedlak, No. 49A04-1005-DR-330, the majority rejected Sexton’s argument that his modification of child support should have dated back to September 2005 when Sedlak filed her petition for modification of child support, or to 2006 when the parties notarized an agreement on custody and child support instead of June 2009 when he filed his petition for modification. His child support order was an order in gross, which is a specified sum of undivided support for several children. In support, the judges cited Whited v. Whited, 859 N.E.2d 657, 662 (Ind. 2007), which prohibits any reduction in child support obligation unless there were no children dependent on his support who were living with Sedlak.

Judge James Kirsch dissented on this point, believing the trial court erred in finding Sexton in contempt for nonpayment of support of more than $28,000.

“Prohibiting the retroactive modification of support, particularly of a support order in gross, has the potential to lead to absurd and unfair consequences, and our Supreme Court has recognized that doing so ‘may occasionally cause inequities,’” he wrote. “This case is one of such inequities.”

He believed the rule prohibiting retroactive modifications doesn’t apply because the parties sought such a modification in 2005. Although it declined to enter an agreed entry on Sedlak’s 2005 petition, the trial court never ruled upon the petition, which remains pending. Judge Kirsch believed the trial court should modify the support order retroactive to the date of Sedlak’s petition in September 2005.

The majority also affirmed the denial of Sexton’s request to emancipate his child T.S. They did find the trial court erred in determining his child support obligation without considering T.S.’s income. They reversed the child support obligation of $117 a week and remanded for the court to determine his obligation in light of T.S.’s income.

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  1. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  2. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  3. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  4. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  5. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

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