Saturday, July 11, 2009

Indiana Paternity: Alternate Means of Paying Child Support

I pass these along just to make a point: we have tools that never get used. I have never seen either of these statutes put to use. Why not? Consider the economic level of the majority of paternity cases. Realize that these statutes require some level of prosperity:

IC 31-14-11-6
Setting aside parent's property
Sec. 6. The court may set aside any portion of either parent's property that may be necessary and proper for the support of the child

IC 31-14-11-7
Security, bond, or guarantee of obligation
Sec. 7. The court may provide in:
(1) a support order; or
(2) modification of a support order;
for the security, bond, or other guarantee that is satisfactory to the court to secure the obligation to make support payments.
It may also be a sign of legislative laziness. The statute appears to be a survivor from prior paternity statutes. Consider this description from State ex rel. Kahn v. Woodward,123 Ind. 30, 23 N.E. 968, 969 (1890) of an older regime:

This was a prosecution for bastardy, and the defendant found to be the father of the child, and the court ordered the payment of the sum of $600 to the relatrix for the maintenance of the child, and, on the failure of the defendant to pay or replevy the judgment, he was committed to the jail of Wells county.
The General Assembly changed the statute by the time of Tarver v. Dix :

Furthermore, the court's imposition of a one (1) year suspended sentence and probation if Tarver failed to give bond was beyond its statutory authority. While IC 31-6-6.1-14 permits the court to require appropriate security, bond, or other guarantee to insure performance of the support obligation, it does not specifically set out authority to commit the father to jail or place him on probation upon his failure to furnish such bond as did the former statute. Where a previous statute on a subject contains certain language, and a later statute on the same subject deletes the language, a presumption exists that the legislature was cognizant of its presence, and meaning, and intended by the deletion to change the law. Merimee v. Brumfield, (1979) Ind.App., 397 N.E.2d 315. In view of the deletion of this language in the new statute and the above rule of construction, we find no statutory authority vested in the court to impose a one year sentence to enforce the order to furnish bond. The proper procedure to enforce this order should be in the form of contempt proceedings.
So why not forgo the bond and just go for contempt? Tarver failed to provide a bond. If the payor lacks the finances to provide a bond, then it makes sense to forgo a bond. For what will we have then? A contempt proceeding where the issue is contempt for failing to provide a bond and failure to pay child support.

I think these tools are for very specific factual situations but in those cases they may have some good uses.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

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