Friday, December 5, 2008

New Child Support Case: State Does Not Need Court Approval for Increasing a Wage Withholding

This post applies to Indiana cases where the State of Indiana collects child support through the Title IV-D Court. Here is the report from The Indiana Lawyer:

The Indiana Court of Appeals examined the state's code regarding the limits of a withholding amount in child support arrearage, and acknowledged that its interpretation of the statute allowing the state to increase the amount without a court order "may cause some concern."

In the case In Re: The paternity of A.M.P., State of Indiana v. Curtis Price, No. 71A04-0806-JV-337, the state appealed the trial court order granting its motion to correct error. The order contained a provision that prevented the state from withholding additional amounts from Curtis Price's paycheck to satisfy an arrearage unless the state had the trial court enter a new order to authorize the withholding.

Income withholding orders are the favorite tool for the prosecutor's office. This case could have had the potential to increase the prosecutor's workload immensely. On the other hand, it does smack of a due process problem until one reads the whole opinion (which is why everyone should read the whole opinion and not just the commentary - even if it is my commentary).

The following is from the opinion itself (page 6), and contains a bit of understatement from the Court of Appeals.
We recognize our interpretation may cause some concern, as it permits the State to forego judicial authorization before increasing the withholding amount, but the statute itself limits the withholding amount, see Ind. Code § 31-16-15-2.5(f)(1) to (7), and the State is required to send the obligor a notice of intent to withhold income before withholding occurs, see Ind. Code § 31-16-15-3.5(a). This notice must provide the obligor with fairly detailed information, see Ind. Code § 31-16-15-3.5(b), presumably to provide the obligor with the opportunity to contest the withholding in court if the obligor so chooses. Moreover, 42 U.S.C. section 666(b)(1) provides for a maximum “ceiling” for arrearage withholding, stating that such withholdings may not exceed the amounts listed in 15 U.S.C. section 1673(b)(2), which, subject to some exceptions, cap withholding at 50 or 60 percent of the obligor’s weekly income depending on the obligor’s marital status and the number of dependent children the obligor supports.
Read that closely and the due process concerns evaporate into nothing. The payor has the obligation to contest any increase in the amount being withheld. If the payor does not ask for a hearing after getting notice, then the amount may be increased without a new court order.

I would also suggest reading the opinion for its thumbnail sketch of the IV-D Court system. See pages 5- 6.

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