Wednesday, March 21, 2007

Follow up on Indiana child support - the custodial parent's duty

In my post Indiana child support - the custodial parent's duty, I excerpted Commentary from the Indiana Child Support Guidelines. A point made in those Commentaries was that the remedies was a bit uncertain. At that time, I had not finished reading Drwecki v. Drwecki, 782 N.E. 2d 440 (Ind.App. 2003).

While Drwecki did not involve an accounting such as described in my other post, I still think it has something to say about an accounting action.
A custodial parent acts as a fiduciary for a child when the parent receives child support payments. Blume v. Stewart, 715 N.E.2d 913, 917 n.5 (Ind. Ct. App. 1999), trans. denied. If a parent has received advance payments that are not gifts, the parent is required, as a fiduciary, to budget the money received to provide regular, uninterrupted support for the children in the future. Id. at 917. The custodial parent may not use those funds to satisfy any other debt. Jenkins v. Jenkins, 567 N.E.2d 136, 140 (Ind. Ct. App. 1991). The record before us does not indicate what happened to the excess support that Father was paying to Mother between the filing of the petition and the final order that adjusted Father’s support obligation. Given the fact that Father filed a petition to modify and the fact that circumstances had changed with both of the children, Mother should have anticipated a change in Father’s support obligation and should have budgeted the money received to provide future support for B. Consequently, we remand for the trial court to amend the order to indicate that, during the time Father is not required to pay, Mother is responsible for paying Father’s share of B.’s college expenses. (Footnote omitted).

Drwecki has some rather involved facts and I suggest reading the case in full. I would expect one key difference between this case and a case where the non-custodial parent requests an accounting to be the latter case will establish where the money went. How to apply Drwecki in an accounting case will depend on the facts of that accounting case.

No comments: