Father’s Child Support Arrearage Still Not Dischargeable after 20 Years

Family Law Case Review

Case: Derek H. Elwood v. Wendy A. Parker
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Father’s child support arrearage of more than $150,000 was not dischargeable (or entitled to any relief at equity) even though Mother made no effort to enforce the support obligation for 20 years, which was approximately two years after the younger child’s emancipation.

FACTS AND PROCEDURAL HISTORY:  Mother and Father were married briefly in the 1990s, they had two children together, and then divorced in 1995. As part of the dissolution, Mother was awarded custody of the children and Father was ordered to pay child support of $169 per week. After making four months of support payments, Father stopped paying child support, moved away, disappeared, and never made another support payment.

Father had no relationship with the children during this period. Mother remarried and Mother’s new husband stepped into the de facto role of the two children’s father.  The children were not aware of Father’s existence until Mother told them as teenagers. Mother made no effort during this period to locate Father or to collect his growing child support arrearage.

In 2015, two years after the younger child’s emancipation and 20 years after the divorce, Mother located Father and filed to determine his support arrearage. After a hearing, Father was ordered to pay an arrearage of $157,555, plus interest of $20,434, plus Mother’s attorney’s fees of $2,800. Father appealed.

On appeal, Father advanced an argument that he was entitled to some type of relief given the amount of time that had passed, and that Mother had made no effort to enforce the arrearage in a more timely manner. Father also argued that Mother’s new husband stepping into a role of a father figure for the children, also warranted some relief on the arrearage.

The Court of Appeals underscored that a retroactive modification of a child support order – which is effectively what Father was requesting – is appropriate in only very limited circumstances, none of which applies here. The Court also noted that Father provided no authority, and the Court found none on its own, to support any argument that step-father assuming a father figure role for the children could have the effect of relieving Father of his child support obligations.

The trial court’s arrearage order was affirmed.

To view the text of this opinion in its entirety, click here: Derek H. Elwood v. Wendy A. Parker

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Court Concludes Mother’s Consent Unneeded in Adoption Proceeding

Family Law Case Review

Case: In re Adoption of E.B.F., J.W. v. D.F.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In an adoption case, the trial court properly concluded that Child’s genetic mother failed without justifiable cause to communicate significantly with Child for one year when she was able to do so – thus dispensing with the need for her consent as part of adoption proceedings.

FACTS AND PROCEDURAL HISTORY:  A genetic parent’s consent is generally required before an adoption petition may be granted. An exception to that rule is: “if for the period of at least one  . . . year the parent . . . fails without justifiable cause to communicate significantly with the children when able to do so[.]”

Here, Mother and Father had Child in 2003 and never married. Mother was Child’s primary custodian for Child’s first 10 years of life.

In 2013, Father initiated a paternity action. As part of those proceedings, Father assumed primary physical custody of Child. Mother was given parenting time “at such times and upon such conditions as the parties are able to mutually agree.”  After seeing Child on Christmas Day of 2013, Mother withdrew from Child, apparently due to Mother’s opioid dependency and other personal problems. Just over a year later, Father’s wife of nine years initiated a step-parent adoption of Child. After a hearing, the trial court concluded that, based upon Mother’s absence for a year, Mother’s consent was not required to proceed with the adoption and, later, the trial court granted step mother’s adoption of Child. Mother appealed.

The Court of Appeals focused on the fact that, during a 13-month period, Mother was aware of ways to communicate with Child, she was not denied contact with Child by Father, yet Mother put forth minimal effort to maintain any communication with Child during this period. Mother did see Child occasionally, but mostly as a result of chance interactions at stores or other public places, not because Mother initiated an effort to see Child. The Court was unpersuaded by Mother’s argument that her ten years of custodial parenting of Child should have been factored into the trial court’s analysis; the statute focuses on the year leading up to the petition.

Mother offered an alternative argument that it was unfair that, because she took a year to “get back on her feet,” she is now being punished by losing Child. However, the Court stressed that the analysis is focused on the best interests of the child, not of the best interests of the parent.

The trial court’s adoption order was affirmed.

To view the text of this opinion in its entirety, click here: In re Adoption of E.B.F., J.W. v. D.F.

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Trial Court Erred in Imputing Both Parties Incomes

Family Law Case Review

Case: Karen B. Salser v. Gregg A. Salser
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred when it imputed Mother to full-time employment as a nurse practitioner, even though her history for the previous five years had been to work about half-time and Mother’s testimony was that no additional hours were available through her current employer.

HELD: Trial court erred when it failed to include Father’s irregular bonus income, which has the potential to equal 28% of his annual base income, in any part of the child support calculation.

HELD: Trial court erred when it ordered the parents to contribute equally to post-secondary educational expenses. Because the equal division was premised upon the erroneous imputation of Mother to full-time employment, then the post-secondary educational expense division was also error.

FACTS AND PROCEDURAL HISTORY:
The parties married in 1993 and filed for dissolution in 2014. At the time of the dissolution proceedings, the parties had one child in college and one in middle school.

Mother was a nurse practitioner who worked part-time and hourly for a physician. For 2012 through 2015, her income varied from $39,946 to $49,786 per year.

Father was a pharmaceutical rep. He earned a base salary of $95,000 per year, but with bonus opportunities of up to another $27,000 per year.

Following the final hearing, the trial court issued its Decree, which included the following pertinent provisions:

1.     The child support order was based upon imputing Mother to full-time employment at her current hourly rate.

2.     The child support order disregarded Father’s potential bonus income altogether.

3.     Because Mother’s imputed income level was comparable to Father’s income level, the trial court’s post-secondary educational expense order provided that the son should pay 34% of his college expenses, with the remainder divided equally between Mother and Father.

Mother appealed.

The Court of Appeals agreed with Mother that imputation was error. The Court relied primarily upon part-time employment by Mother having become established practice during the marriage, coupled with the evidence that no additional hours were available through Mother’s current employer. There was also no evidence that Mother was attempting to reduce her income to avoid a child support obligation.

The Court also agreed with Mother that it was improper for the trial court to completely disregarding Father’s potential bonus income. The Court specifically noted the percentage calculation set forth in the Guidelines that can be developed to provide that a specific fraction of each bonus payment is paid as child support.

Finally, because Mother was improperly imputed to full-time earning potential, the post-secondary educational expense order — which was derived in part from Mother’s imputed income level — was also erroneous.

The case was remanded for a recalculation of child support and the post-secondary educational expense order, consistent with the Court’s opinion.

Judge Bradford dissented, noting the great deference that the Guidelines and case law afford to trial courts, not just in family law matters generally, but in deciding whether to impute income and how to handle bonus income in particular. “Mother, a licensed nurse practitioner, has the ability to work full-time but simply chooses not to, numerous opportunities are available in Mother’s line of work within the community, and Mother would make the same hourly rate ($50 per hour) or higher if she were to accept a full time position.” 

To view the text of this opinion in its entirety, click here: Karen B. Salser v. Gregg A. Salser

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Despite Late Filing, COA decides Father’s Appeal on Merits

Family Law Case Review

Case: Charles Cannon v. Kristy A. Caldwell
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Despite Father filing his notice of appeal nearly one month late, the trial court’s modification of Father’s child support obligation was so manifestly unjust as to provide a compelling reason for the Court of Appeals to decide Father’s appeal on the merits.

HELD: The trial court’s child support order violated the Indiana Child Support Guidelines because it included in Father’s income his Social Security Income (“SSI”), even though SSI – a means-tested public assistance program – is excluded from the Guidelines’ definition of gross weekly income.

*The Court’s opinion refers to Father’s SSI benefit as “Social Security Income,” but “Supplemental Security Income” may have been intended.

FACTS AND PROCEDURAL HISTORY:  
Mother and Father divorced in 2011, pursuant to which Father was ordered to pay child support of $20/wk for two minor children. The children also received $93 per month, each, as a derivative benefit of Father’s Social Security Disability (“SSD”).  Father later became ineligible for SSD, which caused the children to stop receiving their $93/mo ancillary benefit. Father did, however, begin receiving SSI of $773 per month.  Mother filed a petition to modify child support.

The trial court held a hearing, with both parties pro se, which was conducted in summary fashion and in chambers. After the hearing, the trial court increased Father’s child support obligation to $35/wk.  Father filed a motion to reconsider and, later, his tardy notice of appeal.

Most of the Court’s opinion concerns the decision to accept Father’s tardy appeal due to “extraordinarily compelling reasons.” Having decided to entertain the case on its merits, the Court reversed the trial court’s modification order. “[T]he Indiana Child Support Guidelines specifically provide that means-tested public assistance programs, including SSI, are excluded from the definition of weekly gross income used to determine a parent’s child support obligation.”

The matter was reversed and remanded for further consideration, and a determination of whether a modification is appropriate without including Father’s SSI benefit as his “income.”  

To view the text of this opinion in its entirety, click here: Charles Cannon v. Kristy A. Caldwell

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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