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State can increase withholding without order

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The Indiana Court of Appeals examined the state's code regarding the limits of a withholding amount in child support arrearage, and acknowledged that its interpretation of the statute allowing the state to increase the amount without a court order "may cause some concern."

In the case In Re: The paternity of A.M.P., State of Indiana v. Curtis Price, No. 71A04-0806-JV-337, the state appealed the trial court order granting its motion to correct error. The order contained a provision that prevented the state from withholding additional amounts from Curtis Price's paycheck to satisfy an arrearage unless the state had the trial court enter a new order to authorize the withholding.

At issue is whether the provision in the order is inconsistent with federal and state laws governing Title IV-D income withholding procedures.

Although the order is technically favorable to the state, the order interpreted Indiana Code Section 31-16-15-2.5(f) as prohibiting the state from "increasing the weekly amount withheld by Income Withholding Order without further court order," wrote Judge Margret Robb. The interpretation was based on construing the clause "unless otherwise ordered by a court" in subsection (f) as allowing the trial court to limit the state's authority to increase the weekly withholding amount to satisfy an arrearage.

This interpretation is a prima facie error, the appellate court concluded after examining Indiana's code and the federal provisions relating to child support withholding orders under the federal Social Security Act. Part of a provision states that "such withholding must occur without the need for any amendment to the support order involved or for any further action by the court...which issued the order."

"We think these provisions counsel against interpreting Indiana Code section 31-16-15-2.5(f) in a manner that requires judicial authorization before the State may increase the withholding amount to satisfy an arrearage," wrote Judge Robb.

The Court of Appeals interpreted the clause "unless otherwise ordered by a court" to merely refer to a trial court's authority under I.C. Section 31-16-15-2.5(g) to allow the trial court to disregard the limitations of (1) through (7) of subsection (f), and not as preventing the state from increasing such amounts on its own initiative.

"We recognize our interpretation may cause some concern, as it permits the State to forego judicial authorization before increasing the withholding amount, but the statute itself limits the withholding amount. ... and the State is required to send the obligor a notice of intent to withhold income before withholding occurs," wrote the judge. In addition, the federal code provides for a maximum "ceiling" for arrearage withholding.

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  1. Bill Satterlee is, indeed, a true jazz aficionado. Part of my legal career was spent as an associate attorney with Hoeppner, Wagner & Evans in Valparaiso. Bill was instrumental (no pun intended) in introducing me to jazz music, thereby fostering my love for this genre. We would, occasionally, travel to Chicago on weekends and sit in on some outstanding jazz sessions at Andy's on Hubbard Street. Had it not been for Bill's love of jazz music, I never would have had the good fortune of hearing it played live at Andy's. And, most likely, I might never have begun listening to it as much as I do. Thanks, Bill.

  2. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  3. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

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