Modifying Child Support with a Large Arrearage and Reinstatement of License to Drive Based On Law and Public Policy
Through divorce or custody proceedings, a child support worksheet, which uses a complex formula, is produced in order to determine an appropriate child support amount to be paid. The child support worksheet uses gross weekly income and takes into account many factors to make sure child support is equitable, and includes other children the parties have a legal duty support, and childcare costs.
Once the parties have presented their worksheets to the Court, typically by a trial if the amount of support is in issue and not agreed to by the parties, the Court will consider these worksheets and the evidence and issue a child support order in the amount determined from the worksheets, or a deviated amount (perhaps based on some of the variables noted above) if that is more appropriate.
As noted, the child support calculation ultimately accepted by the Court is an order of the Court. The parent paying is obligated to comply with this court order. However, what happens if a parent falls behind due to a change in income or circumstances. Payment of child support fosters an important legal policy: Without child support, the child is not receiving the benefits of the court order and a lifestyle commensurate with a family being intact.
For the paying parent who can no longer afford child support, it is necessary to file a modification of child support if the amount of support to be paid is unreasonable or if a year has passed and the amount of support to be paid would differ by more than 20% with current incomes. There are several factors involved with moving to modify and the modification process, but these will not be analyzed in this blog post.
This blog deals with the circumstance where a parent is substantially behind in support and has had the spectrum of judicial penalties levied against the parent for willful failure to pay support. Precisely, this blog, based on a recent Court of Appeals case, focuses on providing justice to a parent who is very behind in child support but re-affirms his or her commitment to paying child support, arrearage notwithstanding.
In the more routine legal cases, the custodial parent who is not receiving support as ordered may file a contempt to give the Court notice that support is not being properly paid. In other words, the Court would be made aware of a child support arrearage of the parent due to the parent’s lack of payment.
In most cases, if the non-payment of child support is willful, the Court may order that child support be taken directly from the payor’s income/paycheck through what is called an Income Withholding Order (IWO), if not already the case, find that parent in contempt, and perhaps award legal fees.
However, in a small minority of cases, these judicial tools or remedies may not be enough to cause the non-custodial parent to pay his or her ordered child support. In these cases, trial courts have courses of action they can take to enforce their support orders, such as jail time. In even eggregious cases, a trial court may suspend the delinquent parent’s driver’s license as some of the more extreme judicial remedies.
A recent Court of Appeals case analyzed such as case, which is a good learning tool to see how competing legal policies come into play. In this case, the trial court and Court of Appeals faced a parent who was approximately $100,000.00 behind in his child support1.
The Father had been ordered to pay $272.27 per week from a 2005 order, and did not meet most of that child support obligation. Throughout the course of the enforcement proceedings, the Father moved to modify his child support after he was found in contempt twice, jailed twice, had criminal charges filed against him, and loss of his driving privileges2.
Some time later, the trial court reinstated Father’s driver’s license after he showed that he was employed in two (2) jobs, and had agreed to pay one-half (½) of his total income to child support and the arrearage. Mother appealed this decision, contending that the court should not have modified Father’s support obligation (even though the Court did impute a higher income to Father than he claimed he earned) and should not have reinstated his driving privileges.
The Court of Appeals held that based on Father’s agreement to pay one-half (½) of his income through IWOs for child support and arrears, supported the trial court’s discretion to allow Father’s driver’s license to be reinstated.
In affirming the trial court, the Court of Appeals relied on key legal policies, namely also that Father would be more likely to continue to pay support if he has a driver’s license to get him back and forth to work. This balanced the policy that at least at the time or reinstatement, Father was following the order, and to keep him from being able to drive would impair his right to contribute to society. And without a driver’s license, this could impair the amount of money Father could make to pay support and provide for the child.
Therefore, the prior willful violations noted, the trial court viewed father, in this setting, not as with past evidence, but then as a neutral and detached fact finder. In doing so, the trial court judged the Father as he was at the time–taking his child support obligation seriously. Balancing the policies of paying support, being gainfully employed, and driving to sustain both, the Court of Appeals affirmed the trial court’s modification of Father’s support and reinstatement of his driving privileges.
This is the difficult task a judge faces in adjudicating a case with competing legal policies.
The range and severity of remedies for failure to pay child support is broad, and failure to pay child support can result in serious sanctions. Both parents should be aware of these remedies for child support arrears. For the best interests of children, any or all of these legal remedies may be used to enforce a child support order.
However, a trial court judge, always acts as a neutral and detached fact-finder with the evidence presented at the time. In this case, while it has ruled for mother in the past, the equities leaned toward father and Mother’s trial court requests were denied. And the Court of Appeals affirmed based on some of these policy, although perhaps clear to non-lawyers.
We hope that this blog post has been informative about the consequences and remedies after non-payment and an arrearage. Ciyou & Dixon, P.C. practices throughout the State of Indiana. This blog post was written by attorney Jessica Keyes.
- Mertz v. Mertz, 2012
- See Ind. Code §31-16-12-7 for suspension of driving privileges related to failure to pay child support.
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