Tag Archive | "Child Support"

Trial Court Did Not Err in Finding that Father was Voluntarily Underemployed, but Erred when Determining How Father’s Income Should be Imputed

Family Law Case Review

Case: Mark H. Miller, II v. Leigh Anne Miller
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court did not err in finding that Father was voluntarily underemployed, but the trial court erred when it determined the amount to which Father’s income should be imputed without evidence of prevailing job opportunities and earning levels in the community.

DICTA: When determining an income amount to which a parent should be imputed, this opinion suggests that the trial court is required to consider evidence of all four of the following factors: (1) the party’s work history; (2) the party’s abilities; (3) prevailing job opportunities, and (4) earnings levels in the community. Failing to consider all four of these factors appears to be reversible error.

FACTS AND PROCEDURAL HISTORY:
Mother and Father married in 1999 and had four children together. Mother had been the primary caregiver for the children, but she obtained full-time employment in late 2009, at the about the same time Father lost his job as an insurance agent. Thereafter, Father became the primary caregiver to the children. Mother and Father agreed that Father should return to school, so in 2010, he enrolled part-time at IUPUI.

In 2014, Mother filed a petition for dissolution. At the time of the parties’ 2016 final hearing, Father was still attending IUPUI part-time, but he was also working 15 hours per week which earned him $250/wk. The trial court found Father to be voluntarily underemployed, and imputed him to income of $600/wk for child support purposes. The trial court’s findings suggested the $600/wk amount was based upon Father’s income history as an insurance agent. Father appealed.

Father’s primary argument on appeal was that the finding of voluntary underemployment was erroneous because Father’s decision to return to college was made by agreement with Mother, and that Father should not be penalized for making the decision to return to school. The Court of Appeals rejected these arguments, focusing on the fact that, at the time Father returned to school part-time in 2010, he was also the children’s primary caregiver; since then, Father no longer had the caregiving responsibilities — yet Father continued to take classes on only a part-time basis. “A reasonable inference can be drawn that the time Father spent in his caretaking function is now available for other purposes, yet he is working only fifteen hours a week.”

However, the Court of Appeals agreed with Father that there was insufficient evidence to support the $600/wk amount to which the trial court imputed Father. Interestingly, the opinion suggests that evidence of a party’s abilities and income-earning history, without more, is inadequate on which to determine an imputation amount. Instead, the imputation amount should be determined from four factors: (1) the party’s work history; (2) the party’s abilities; (3) prevailing job opportunities, and (4) earnings levels in the community. The matter was remanded for a hearing on all four factors.

To view the text of this opinion in its entirety, click here: Mark H. Miller, II v. Leigh Anne Miller

 

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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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Support Modifications Typically Inappropriate without Differing at Least 20% from the Prior Order

Family Law Case Review

Case: Danielle Maple v. Travis Maple
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Court of Appeals underscores the Indiana Supreme Court’s MacLafferty holding that, when entertaining a child support modification, it will very seldom be appropriate to modify support if the new support amount is not more than 20% different than the previously-ordered support amount.

HELD: When a trial court is establishing a child support order that includes a credit for “prior born” children, the trial court is required to use a prevailing child support worksheet from that prior born child’s case, and the amount of the credit for prior born children may not be re-litigated.

FACTS AND PROCEDURAL HISTORY:
Mother and Father married, had two children, and divorced in 2009. Mother also had one child from a prior relationship, for whom a child support order had been issued in 2005 and never modified. That 2005 worksheet established Mother’s legal duty of support for her prior-born child at $121/wk.

In the instant case, Father endeavored to modify child support for a variety of reasons, including changes of income and parenting time. However, in the course of seeking this modification, Father sought to reduce Mother’s credit for her legal duty to support a prior born child down to $66/wk. The trial court agreed and, recalculating child support, issued a new child support order which differed by only 16% from the prior order. Mother appealed.

The Court of Appeals reviewed the MacLafferty holding, which provides that the circumstances are rare in which child support should be modified without differing at least 20% from the prior order. The Court of Appeals concluded that no such extraordinary circumstances existed in this case, and the trial court’s modification of support was inappropriate.

Further, the Court of Appeals assigned error to the trial court’s recalculation of the amount of Mother’s credit for her legal duty to support her prior-born child. In effect, the Court concluded that a trial court calculating child support is bound to the child support worksheet of the other court that established support for the prior-born child, and the amount of that credit may not be re-litigated in the current court.

To view the text of this opinion in its entirety, click here: Danielle Maple v. Travis Maple

 

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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 of Appeals Relied upon “Equitable Estoppel” to Affirm Trial Court Order for Husband to Support Child of Mother by Another Man

Family Law Case Review

Case: Benjamin Sheetz v. Ronnie Sheetz
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Mother’s husband was equitably estopped from rebutting that he is the biological father of Child, who was born during Husband’s marriage to Mother, even though all concerned stipulated that Mother became pregnant with Child by another man while Husband was in prison. Critical to the equitable considerations of the holding, Husband agreed to raise Child as his own, he did so for 12 years, and Husband instructed Mother not to contact the biological father or to initiate paternity proceedings.

FACTS AND PROCEDURAL HISTORY:
Mother and Husband married in 2002. Shortly thereafter, Husband went to prison, during which Mother became pregnant by another man. Mother notified Husband of her pregnancy by another man and, after a period of anger, Husband decided the parties would raise Child together. The parties did so for another 12 years, along with having two subsequent children together of their own. Husband told Mother not to seek communication with natural father, not to initiate paternity proceedings, and not to seek child support from him.

Mother filed for divorce from Husband in 2014. Initially, Husband agreed to a support order that included Child along with the two natural children. Prior to the final hearing, the parties entered into a stipulation that Husband was not the biological father of Child, but which further recited that Mother was not waiving any right to seek child support. After the final hearing, during which the trial court was well aware of Child’s underlying circumstances, a Decree was issued that included a support order for Child. Husband appealed.

The Court of Appeals discussed extensively, and relied heavily in its conclusion, on the doctrine of “equitable estoppel.” By statute, a husband is presumed to be the biological father of a child born during the marriage, but that presumption is rebuttable by “direct, clear, and convincing evidence.” Here, Husband was plainly capable of rebutting the presumption, so the Court of Appeals relied upon equitable estoppel to preclude him from doing so. As such, the trial court’s order providing for Husband to support Child was affirmed.

Judge Najam dissented, in an opinion longer than the majority’s, arguing that Indiana does not recognize equitable estoppel as a basis for a child support order. He contended that statute and related case law provide for a child support order only in the case of a parent of a biological or adopted parent, and Husband in this case was neither.

To view the text of this opinion in its entirety, click here: Benjamin Sheetz v. Ronnie Sheetz

 

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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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Foster Parents Fail to Meet Burden that Father Failed to Communicate with the Children “when able to do so.”

Family Law Case Review

In Re: The Adoption of: J.S.S. and K.N.S., Rayburn and Beth Robinson v. M.R.S.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In adoption proceedings, one basis for dispensing with the consent of a natural parent is that the parent failed to communicate significantly with the children for a period of one year “when able to do so.” However, the Court of Appeals held this provision is not triggered when the parent is unaware of the children’s whereabouts, or prohibited by Court order from communicating with the children, as those are not circumstances where the parent is “able” to communicate with the children.

HELD: Even if the parent could have communicated with the children through the exercise of greater diligence that does not alter the analysis for purposes of determining whether consent to adoption is required.

FACTS AND PROCEDURAL HISTORY:
Children were born to Mother and Father in 2006 and 2008, respectively. When Mother and Father divorced, Mother moved away with the children without advising Father of their whereabouts. Mother apparently led the children to believe that her boyfriend was their biological father. At some point in 2010, Father learned that Mother and Children were living in Fort Wayne, but he had no specifics or address.

In 2012, CHINS proceedings were initiated for Children. The CHINS court learned Father had been paying support but had not seen the children since 2009. The court further precluded any parenting time for Father, for the indefinite future, determining it would be contrary to Children’s best interests pending a reunification plan.

Father continued to have no contact with Children. In 2014, Foster Parents filed a petition to adopt Children. Mother consented. Father filed his objection. After a hearing, the trial court concluded that Foster Parents failed to prove by clear and convincing evidence that Father’s consent was unnecessary, and dismissed the adoption. Foster Parents appealed.

Under Indiana law, the adoption of a child generally requires the consent of the child’s parents. However, by statute, consent is not required if it is shown either that, for a period of one year or more: (a) the parent fails without justifiable cause to communicate significantly with the child when able to do so; or (b) knowingly fails to provide for the care and support of the child when able to do so as required by law or a judicial decree.

Here, it was uncontroverted, between not knowing the Children’s location, followed by the Court no-visitation order that Father went over a year without significantly communicating with Children. The issue, then, was whether Father did not communicate with Children for this period of time “when able to do so.”

Foster Parents argued that, with an exercise of minimal diligence, Father could have either located the children’s whereabouts or, later, pursuant a reunification plan through the CHINS court. However, the Court of Appeals declined to impose upon a parent an expectation of any particular diligence. Here, at one point, Father did not know the whereabouts of the Children and, later, the Court ordered him not to visit with them. As a result, the Foster Parents failed to meet there burden that Father failed to communicate with the children “when able to do so.”

The trial court’s dismissal of the Foster Parents’ adoption was affirmed.

To view the text of this opinion in its entirety, click here: In Re: The Adoption of: J.S.S. and K.N.S., Rayburn and Beth Robinson v. M.R.S.

 

_________________________________________________________________________________

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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