Fayette County: CHILD SUPPORT GUIDELINES

 While hewing very close to the Indiana Child Support Guidelines, Fayette County has some interesting wrinkles in how its judges handle child support issues in its Local Rule 21-FL00-FL-5 ( CHILD SUPPORT GUIDELINES).

What I find most intriguing comes in this, the first paragraph of the Local Rule:

In all proceedings involving child support, including any petition to emancipate where there is more than one child, each party shall file with any settlement, or submit to the Court at the time a petition is filed, one or more Indiana Child Support Guidelines worksheets with supporting documentation.  A response Child Support Worksheet with supporting documents shall be provided to the other party or to opposing counsel as the case may be, at least forty-eight (48) hours prior to the provisional hearing, unless reasonable circumstances prevent doing so and then such Child Support Worksheet shall be provided to the other party or opposing counsel at the earliest opportunity. Child Support Worksheets shall be promptly supplemented if changes occur prior to trial. Child Support Worksheets intended to be introduced at trial or final hearing shall be exchanged by the parties or counsel at least seven (7) days prior to trial.

If I understand the first sentence correctly, a Child Support Worksheet is required to be attached to a petition when filed.  How is the moving party to know for certain the other party's income when filing?  If the petition being filed is a Petition for Dissolution of Marriage, that information should be readily available.  If the petition is one for modifying support or custody, having accurate income information seems problematic.  Which explains the sentence allowing prompt supplementing before trial.  Assuming the worst but not the utterly worst scenario, Petitioner's counsel will have prepared two versions of the Child Support Worksheet.

With the rush that I have seen in the run up to a provisional hearing, I am not surprised at the escape clause for the 48 exchange prior to a provisional hearing.

All that said, I am wondering at the benefit of having a Child Support Worksheet attached to the petition at time of filing.  It does make sure that the Worksheet is prepared at the earliest possible date.  It may be worth using elsewhere.

Not much in this paragraph that is not in the Child Support Guideline 3 regarding deviations except its brevity:

If an agreement concerning support provides any deviation from the Guidelines, the parties shall present to the Court a written explanation, with supporting documentation, justifying the deviation. The proposed Order shall specifically state that the Court is deviating from the Child Support Guidelines and set forth the reasons for such deviation.

The concluding paragraph has nothing to do with the Child Support Guidelines and all with income withholding orders.  I know this is a trend in many courts - often enough without the benefit of a Local Rule. 

In all proceedings involving child support, an Income Withholding Order shall be submitted with any Settlement Agreement or Final Decree pursuant to Indiana Code 31-16-15-1 or the parties shall:  Submit a written agreement providing for an alternative child support arrangement; or provide within the proposed Decree that “the Court determines that good cause exists not to require immediate income withholding” and stating the specific reasons therefore.

Fayette County Local Rules: TEMPORARY RESTRAINING ORDERS

Used to be that we would routinely file restraining orders and then the General Assembly passed the Indiana Civil Protection Act.  That statute divides personal issues from property issues.  For issues of personal safety, we have to use a protective order.

Property issues still require a restraining order.  I freely admit that it has been a very long since I have seen anyone request a temporary restraining order.  Maybe people behave better now, perhaps the parties do not have property of such value that they feel the need for a restraining order.  Protective orders are still too common.

Perhaps my interest in noting this Fayette County local rule comes from a sense of nostalgia but there are some interesting points.  Most of the rule incorporates Indiana Trial Rule 65:

(E) Temporary Restraining Orders - Domestic Relations Cases. Parties wishing protection from domestic or family violence in Domestic Relations cases shall petition the court pursuant to IC 34-26-5.  Subject to the provisions set forth in this paragraph, in an action for dissolution of marriage, separation, or child support, the court may issue a Temporary Restraining Order, without hearing or security, if either party files a verified petition alleging an injury would result to the moving party if no immediate order were issued.

(1)     Joint Order. If the court finds that an order shall be entered under this paragraph, the court may enjoin both parties from:

(a)     transferring, encumbering, concealing, selling or otherwise disposing of any joint property of the parties or asset of the marriage except in the usual course of business or for the necessities of life, without the written consent of the parties or the permission of the court; and/or

(b)     removing any child of the parties then residing in the State of Indiana from the State with the intent to deprive the court of jurisdiction over such child without the prior written consent of all parties or the permission of the court.

(2)     Separate Order Required. In the event a party seeks to enjoin by a temporary restraining order the non-moving party from abusing, harassing, or disturbing the peace of the petitioning party or any child or step-child of the parties, or exclude the non-moving party from the family dwelling, the dwelling of the non-moving party, or any other place, and the court determines that an order shall be issued, such order shall be addressed to one person. A joint or mutual restraining order shall not be issued. If both parties allege injury, they shall do so by separate petitions. The trial court shall review each petition separately and grant or deny each petition on its individual merits. In the event the trial court finds cause to grant both petitions, it shall do so by separate orders.

(3)     Effect of Order. An order entered under this paragraph is automatically effective upon service. Such orders are enforceable by all remedies provided by law including contempt. Once issued, such orders remain in effect until the entry of a decree or final order or until modified or dissolved by the court

And for the Fayette County Rule:

LR21-FL00-FL-8

TEMPORARY RESTRAINING ORDERS

Subject to the provisions of Ind. Trial Rule 65, in an action for dissolution of marriage, legal separation or child support, the Court may issue a Temporary Restraining Order, without hearing or security, if either party files a verified petition alleging an injury would result to the moving party if no immediate order were issued.

If the Court finds that an order shall be entered, the Court may enjoin both parties from:  Transferring, encumbering, concealing, selling or otherwise disposing of any joint property of the parties or asset of the marriage without the written consent of the parties or the permission of the Court;  Removing any child of the parties then residing in the State of Indiana from the State of Indiana from the State with the intent to deprive the Court of jurisdiction over such child without the prior written consent of all parties or the permission of the Court.

In the event a party seeks to enjoin the non-moving party from abusing, harassing, disturbing the peace, committing a battery on the moving party or any child or step­child of the parties, or exclude the non-moving party from the marital residence, and the Court determines that an order shall be issued, such order shall be addressed to one person only. A joint or mutual restraining or protective order shall not be issued. If both parties allege injury, they shall do so by separate petitions. The Court shall review each petition separately and grant or deny each petition on its individual merits. In the event the Court finds cause to grant both petitions, it shall do so by separate orders. The moving party shall provide the Court the following information concerning the non-moving party:  Name; Age; Date of Birth; Race; Sex; Height; Weight;  Scars, tattoos or other identifiable characteristics; Home Address: Telephone No. Work Address: Work Telephone No; and. Work Hours.

 I just do not see where the Local Rule adds to the general state rule.

Fayette County Local Rules: FINANCIAL DECLARATION FORM

Most counties have some sort of requirement for a financial declaration.  The Connersville judges have created the following Local Rule which is a bit more detailed than other counties.  Note that this Rule makes appraisals and the actual Financial Declaration mandatory discovery.  In other words, getting this information does not require filing a Motion to Produce.

I still am not so sure that we (that is the lawyers and the judges) really know how to use these financial declarations for anything but impeachment (impeachment being how we lawyers undermine a witness' credibility).  Last month, I had the unfortunate experience of seeing an opposing attorney take apart my client with the use of a financial declaration and his income tax returns.  Hint:  honesty is the best policy - honesty with your lawyer and honesty on tax returns. Regardless of how hard I tried, I could not convince the judge that what appeared a scam by my client was actually ignorance and haste.

I wish I had a better handle (or more time) to translate one of these financial declaration forms into a spreadsheet - that might make them more useful for dividing property in a dissolution of marriage case.  Anyone want to take the hint?

The actual Rule follows and you can find the form by following this link

Fayette County LR21-FL00-FL-6

In all relevant family law matters, including dissolutions of marriage, separations, post-decree and support proceedings, the party filing the petition/motion shall provide to the opposing party or his or her legal counsel, if applicable, a fully completed Financial Declaration Form with all required attachments within forty-five (45) days of the filing of such petition/motion.  The opposing party shall provide to the petitioning party or his or her legal counsel, if applicable, a fully completed Financial Declaration Form with all required attachments within fifty (50) days of the filing of the petition/motion.

The Financial Declaration Form need not be exchanged if: the parties agree in writing within fifty (50) days of the filing of the petition/motion to waive exchange;  the parties have executed a written agreement which settles all financial issues;   the proceeding is one in which the service is by publication and there is no response;  the proceeding is post-decree and concerns issues without financial implications; provided, however, when the proceeding is post-decree and concerns an arrearage, the alleged delinquent party shall complete the entire Form, while the support recipient need complete only that portion  which requires specification of the basis of the arrearage calculation (with appropriate supporting documentation); or,  the Court otherwise waives such requirement. Subject to specific evidentiary challenges, the Financial Declaration Form shall be admissible into evidence. For the purpose of providing a full and complete verification of assets, liabilities and values, each party shall attach to the Financial Declaration Form all information reasonably required and reasonably available.  This shall include recent bills, wage and tax records, bank records, pension and retirement account information, and mortgage account records.  The term "reasonably available" means that material which may be obtained by letter accompanied with an authorization, but such term does not mean material that must be subpoenaed or is in the possession of the other party.  Appraisals of real estate or personal property, or pension valuations are not required.  However, once an appraisal or valuation is obtained it must be exchanged.  Further, the Court may direct that an appraisal or valuation be obtained, just as it may designate the appraiser or valuator.  The Court may require either party to supplement the Financial Declaration Form with appraisals, bank records, and other evidence to support the values set forth in the Form.

The exchange of financial declaration forms constitutes mandatory discovery.  Thus, Indiana Trial Rule 37 sanctions apply.  Additionally, pursuant to Indiana Trial Rule 26(E) (2) and (3), the Financial Declaration Form shall be supplemented if information changes or is added or if additional material becomes available.  Any additional discovery such as Requests for Production, Interrogatories, or Depositions of the parties to the action shall not commence until the Financial Declaration Form has been exchanged.   Any further discovery shall not seek to obtain information already obtained by the Financial Declaration Form.

Whenever the interest of privacy so requires, the Court may, upon proper Motion, direct that the Financial Declaration Form(s) be sealed until further order of the court.  However, such request(s) shall not be made as a matter of course.  When ordered sealed, the Court Reporter shall place the Financial Declaration Form(s) in a flat manner in an envelope of sufficient size, seal the envelope, and affix a copy of the Order directing that the Financial Declaration Form(s) be placed under seal.  Financial Declaration Form(s) may be withdrawn at the conclusion of the case on such terms as the Court may allow.   Upon the filing of any family law matter referred to in Rule 6(A), the Clerk shall provide to the moving party upon filing and to the non-moving party by service a Notice of the requirement of this Rule.  Such Notice shall be in a form substantially as follows:

You are advised that the moving party is required to provide to the opposing party or his or her legal counsel, if applicable, a fully completed Financial Declaration Form with all required attachments within forty-five (45) days of the filing of such petition/motion.  The opposing party shall provide to the petitioning party or his or her legal counsel, if applicable, a fully completed Financial Declaration Form with all required attachments within fifty (50) days of the filing of the petition/motion.

Failure to timely provide a fully completed Financial Declaration Form with all required attachments may be result in sanctions being entered against the party failing to file the Form.

Local Rules: Fayette County defines “reasonable visitation”

Long before the Indiana Parenting Time Guidelines some judges would order "reasonable visitation" without ever defining reasonable visitation.  The general interpretation followed the definition below in the first sentence.  Not that this did not generate lots of litigation over who was and was not being reasonable (one side's reasonableness is the other side's unreasonableness).

Still, I give the Connersville judges credit for putting the emphasis on the parties setting up their own visitation schedule.

LR21-FL00-FL-7

VISITATION ORDERS

The phrase “reasonable visitation” if not specifically defined in the Court’s order is defined as those visitation rights agreed upon between the parties. To the extent the parties cannot agree to the particulars of such visitation, “reasonable visitation” shall be defined as those visitation rights provided for in the Indiana Parenting Times unless the court determines that under the particular circumstances a different visitation schedule is reasonable.

Fayette County: HELPING CHILDREN COPE WITH DIVORCE

Add Fayette County to the counties requiring a seminar for parents going through a divorce. For the brochure on this program see The Children Cope with Divorce Seminar Brochure.

For those of us in Madison County, notice that Fayette County does not want the children to attend.

LR21-FL00-FL-13

HELPING CHILDREN COPE WITH DIVORCE

A.        Attendance at Class. Before final hearing is scheduled on a petition for Dissolution of Marriage or Petition for Legal Separation in which the parties have minor children of the marriage, each party must attend not less than one session on Helping Children Cope With Divorce.

B.         Location of Class. The sessions will be conducted by Behavioral Health Care Associates, 800 South 8th Street, Richmond, Indiana, 47375, and will be held at their facility.

C. Contact. Each party to the proceeding shall call Behavioral Health Care Associates at 765­983-8079 or 765-983-8085 within twenty days from the filing of the petition for the purpose of registering for the program. Each party shall provide Behavioral Heath Care Associates with the cause number of the proceeding when they place the call or by bringing it with them to the session.

D.        Certificate. The moderator of each session will provide each attendee with a certificate of attendance, which must be filed with the Court’s Clerk prior to the Court’s granting the Petition for Dissolution of Marriage or Petition for Legal Separation.

E.         Payment. Each party is responsible for payment to Behavioral Health Care Associates of the $30.00 cost of that party’s participation. Allowances for waiver of fee will be given upon a good-faith showing of indigence.

F. Children Not to Attend. Participants may not bring children to these sessions.

G. Make-Up Session. Make up sessions will be scheduled at dates and times to be by Behavioral Health Care Associates to accommodate those individuals who haveirreconcilable conflicts with the Wednesday meeting dates.

H.        Waiver. In those limited circumstances where it is clearly apparent that a party’s compliance with this rule cannot be compelled, upon written motion, the Court may grant a waiver of its application.

I.          Clerk to Provide Copies. The Clerk is directed to provide a copy of this rule to all petitioners or their attorneys at the time of filing of any Dissolution of Marriage Petition or Petition for Legal Separation if the parties have minor children, and attach a copy of this rule to such Petitions to be served with Summons.

J. Praecipe for Failure to Attend. If one party has failed to attend the class as required, the complying party may file a Praecipe with the Court requesting that the Court enter an Order requiring the opposing party to attend the class by a date certain or be subject to contempt of court.

From Fayette County: Contacting the Custody Evaluator Local Rule

This rule ties in with the Local Rule discussed in Fayette County: Local Rule on Custody Evaluators.

LR21-FL00-FL-14

CONTACT WITH CUSTODIAL EVALUATORS

In the event a custodial evaluation is ordered by the Court, the Court shall direct the parties to contact the custodial evaluator to arrange for an appointment with the custodial evaluator. Other than making contact with the office of the custodial evaluator to arrange for the client’s appointment with the custodial evaluator, counsel shall not initiate contact or otherwise communicate with the custodial evaluator until the custodial evaluator’s report has been issued. Prohibited contact or communication shall include the sending of school records, medical records, affidavits, reports, or any other type of written record by the attorney to the custodial evaluator. Information which may be requested by the custodial evaluator shall be delivered or otherwise presented to the evaluator by the party and not counsel. In the event the custodial evaluator should contact counsel before the evaluator’s report has been issued, such fact should be promptly conveyed to opposing counsel indicating the specific dialogue between counsel and the custodial evaluator. Following the issuance of the evaluator’s report, the evaluator shall be deemed a witness and counsel shall be permitted ex parte communication with the evaluator at counsel’s/client’s expense.

So far, I have not seen a similar rule in Indiana. I suggest careful reading of how the rule forbids either attorney communicating with the evaluator. Such a serious prohibition arouses my curiosity at the implicit fear that counsel might be attempting to unduly influence the evaluation.

While the rule states the evaluator becomes a witness, it is unclear to which party the evaluator belongs - petitioner or respondent. If one party makes the motion for a custody evaluation, the evaluator clearly belongs to the party making the motion. However, what if the court makes the motion?

If you forget that these evaluators cost money, the rule has its subtle reminder for you. These evaluations are not provided at public expense.  However, I am wondering who gets accessed the costs if the court makes the motion.  I assume the court will put the cost on one or both of the parents.

It may be worth taking a look now at  IC 31-17-2-12(a):

In custody proceedings after evidence is submitted upon the petition, if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by any of the following:

(1) The court social service agency.

(2) The staff of the juvenile court.

(3) The local probation department or, if the child is the subject of a child in need of services case under IC 31-34, the department of child services.

(4) A private agency employed by the court for the purpose.

(5) A guardian ad litem or court appointed special advocate appointed for the child by the court under IC 31-17-6 (or IC 31-1-11.5-28 before its repeal).

Let me say that the list is not exclusive (see the use of 'may" instead of "shall").  As to each of the statutory options, I am not aware of a court social service outside of Marion County.    As one of our local judges said to me last week, the juvenile court would be more likely to say its staff was overwhelmed with its usual work and there is no money in the county for guardians ad litem outside of CHINS cases.  I suspect our probation department and department of child services lack the personnel to add custody evaluations to their job descriptions.  As for private agencies, and I know of none in this part of Indiana employed by any of our courts.  That leaves private agencies employed (meaning paid for) by our clients.  The last custody evaluation I had was from Delaware County and cost $3,000.00.


I make some of these points as a prelude to a post that has been kicking around in my head for a while about custody cases and the costs involved.  I hope later this month to have that article written.

Fayette County: Attorney Fees

I got to admit I like how Fayette County codifies its procedure on attorney fees.  Yes, this is how most courts go about awarding attorney fees but only some put the procedure where everyone can see and understand what is going on.  (For my experience in Grant County, take a look here.)

LR21-FL00-FL-11

FEES

Provisional attorney fees may be awarded based on evidence presented by way of Affidavit (or oral testimony if the Court shall allow) at the provisional hearing. Affidavits shall be admissible subject to cross examination. The following factors will be considered and should be included in any Affidavit submitted to the Court:  the number and the complexity of the issues (e.g. custody dispute, complex asset valuation; the nature and extent of discovery; the time reasonably necessary for the preparation for or the conduct of contested pendente life matters or final hearings. Other matters requiring substantial expenditure of attorney’s time; the amount counsel has received from all sources; and the ability of the opposing party to pay the requested fees and the disparity of income between the parties.

When the Court finds that attorney’s fees should be awarded, the Court may find as reasonable attorney fees an amount of up to Five Hundred Dollars ($500.00) for provisional attorney fees in a “basic/routine” Dissolution of Marriage case.

Appraisal or accounting fees may be awarded based on evidence presented by affidavit (or oral testimony if the Court shall allow) at a preliminary hearing. The following factors will be considered:  itemized list of property to be appraised or valued (e.g. Defined Benefit Pension, Business Real Estate, Furnishings, Vehicles, etc.); an estimate of the cost of the appraisals and the basis therefore; and the amount of a retainer required and the reason an expert is necessary.

There shall be a rebuttable presumption that attorney fees will be awarded to the prevailing party in all matters involving a contempt citation. An attorney may submit by affidavit (or oral testimony if allowed by the Court) along with an itemized statement his requested fee. Affidavits shall be admissible into evidence by the Court.

Final or interim attorneys fees may be awarded based on evidence presented by way of Affidavit (or oral testimony if allowed by the Court) at the final hearing or any interim hearing requested by either party. The same factors as set out above will be considered by the Court.

Fayette County: Dissolution Procedure - Exhibits for Personal Property

No idea who had this idea or how it came to be put into a local rule but the judges down in Connersville have what I call a good idea.  I think the lawyers reading this will see how this rule reduces the time (and therefore) of getting exhibits relating marital property and debt into the record but that might not be so clear to you who are non-lawyers.

Exhibits need to be admitted before they become evidence.  If not done properly, an exhibit can be kept out if there is an objection that is upheld by the judge.  This rule seems to me to envisage working out the objectionable exhibits before a hearing.  That moves the hearing that much quicker.

I also see the rule as setting out a proposed splitting of the marital property and debts in a tangible format that the judge can use in dividing the property and debts.  Not a bad idea at all.

LR21-FL00-FL-15

DISSOLUTION PROCEDURE

Prior to commencement of a final dissolution hearing, the Parties shall prepare a joint exhibit setting forth all the marital property.  This exhibit shall not only give a description of the property and debt but the agreed upon value of the property and amount of the debt.  If the Parties can not agree upon a value or an amount then the exhibit shall set out each party's value or amount.  In addition the exhibit shall state who is to receive the property or pay the debt or that the distribution of the items at issue.