Friday, February 5, 2010

Not Quite The Usual Child Support Case

Indiana Lawyer reported on Mark E. Hicks v. Tammy L. (Hicks) Smith in Dad who took son owes arrearage to mom

"If this was a typical case involving an arrearage - that is, if Mark had accrued an arrearage while Tammy had Brandon in her custody until he was emancipated - it would be easy to affirm the trial court's order awarding a judgment for the arrearage to Tammy," wrote Judge Margret Robb for the majority. "On the other hand, if Mark and Tammy had agreed that Mark would take custody of Brandon in lieu of paying child support despite the trial court's order otherwise, it would be easy to reverse the trial court's order. However, neither situation is presented by these facts."

The majority presumed that although Smith didn't provide support for Brandon while he was missing, she maintained a home for him and made decisions during that time based on the possibility he would return. The majority also found no authority for awarding the arrearage directly to Brandon, so based on the circumstances of the case, they upheld the lower court's ruling.
I think the paying of child support arrears to the child deserves a bit more attention. The following comes from pages 9 -10 of the opinion:
Mark cites Thacker v. Thacker, 710 N.E.2d 942 (Ind. Ct. App. 1999), in support of his request to have the arrearage paid directly to Brandon. In Thacker, custody of the parties’ two children was awarded to the mother and the father was ordered to pay child support. For two years, the parties’ son lived on his own. During those two years, the father reduced his support payment, and when the son returned to the mother’s home, increased it again....Unlike the son in Thacker, however, Brandon did not support himself during the time he was absent from Tammy’s household and Thacker does not support Mark’s request to order the arrearage paid directly to Brandon. In Moody v. Moody, 565 N.E.2d 388 (Ind. Ct. App. 1991), we held a trial court erred in ordering the non-custodial parent to pay one-half of the back support he owed directly to an emancipated child. “Because [custodial parent] presumably expended her own funds through the years to care for the children, she is entitled to collect the arrears. It is not necessary that she prove she spent the amount of the back support on the children.” Id. at 392.
Maybe that explains the law on this subject clearly enough.

No comments: