The Indiana Court of Appeals instructed a trial court to do the work necessary before entering an order garnishing a parent’s money for child support.
A father, incarcerated in the Indiana Department of Correction, disputed an income withholding order that garnished his inmate trust fund account to pay down his child support arrearages.
He pointed to a pre-dispositional report from April 2008 that found he did not have the ability to pay child support and that no arrears would be sought against him. Also, the father noted the court had not issued a new order regarding payment of the arrearages.
The father then requested a hearing to present evidence that the arrearage never should have accrued, to determine the amount of any arrearage owed, and to determine the monthly amount he should pay, if any. In addition, he requested the court suspend the garnishment of his prison account until his release from incarceration.
The trial court issued an “Order Denying Father’s Request to Disallow Income Withholding Order.”
The Court of Appeals concluded the trial court abused its discretion in denying the father’s motion in In Re: Paternity of J.M.; C.M. v. T.S., 18A02-1308-JP-684.
It reversed and remanded with instructions to conduct an evidentiary hearing for the purpose of determining the arrearage amount and the father’s ability to pay plus a payment schedule.
In reaching its conclusion, the Court of Appeals pointed out that the trial court never entered an income withholding order with respect to any arrearage and, in fact, never entered an order which required the father to make payments toward his arrearage.
Also, the lower court did not hear any evidence about the father’s ability to pay his arrearage. The trial court did not establish the total amount of the arrearage or set up a payment schedule.
Judge Margaret Robb wrote a separate opinion. She concurred in substance with the majority’s opinion but pointed out the trial court’s denial was signed only by a magistrate and not reviewed or approved by the judge.