December 18, 2005
Case Law Development: Effect of Parent's Incarceration on Initial Child Support Determination
The Indiana Court of Appeals held that in making an initial child support calculation in cases in which a parent is incarcerated, the court should impute income to the parent consistent with the earning before the criminal activity resulting in their incarceration. The issue was one of first impression in the state and the court surveyed opinions of other jurisdictions on the matter, but ultimately arrived at its ruling on public policy considerations. A dissent viewed the majority's approach as "additional punishment."
Lambert v. Lambert, 2005 Ind. App. LEXIS 2336 (December 15, 2005)
Opinion on the web at http://www.in.gov/judiciary/opinions/pdf/12150501mgr.pdf (last visited December 17, 2005 bgf)
The majority opinion reasons that "Unemployment by incarceration does not fall squarely into our standard child support rubric. Although it is not an act undertaken for the purpose of avoiding child support, it is clearly not an act undertaken for a legitimate purpose. We are guided, as in all child custody, support, and visitation matters, by the best interests of the child.... When a parent has voluntarily taken a reduction in income for a legitimate purpose, such as being closer to his or her children or caring for his or her aging and ill parents, we are weighing one positive public policy -- adequate support for children -- against another positive public policy -- quality of life for all family members. When a parent has no such legitimate reason for the reduction in income, we are weighing the positive public policy of support for children against the negative public policy of "rewarding" bad behavior. We find no reason to treat an incarcerated parent any differently than a non-custodial parent who has a higher income imputed because of a voluntary decision causing an unnecessary decline in income. Not only is incarceration a foreseeable result of voluntary criminal conduct, but conviction of a crime necessarily imputes some fault to the perpetrator, fault for which he should not be rewarded with a lower child support obligation than he would have otherwise."
The dissent's position was that the state child support guidelines "do not envision the assignment of blame when setting the support amount. Rather, it is generally a straightforward mathematical calculation utilizing a prescribed formula and plugging in the parents' respective incomes. Thus, with the limited exception of voluntary underemployment or unemployment motivated by an intention to escape paying support, the child support obligation is based upon the parents' income, and not fault. No one has suggested here that Father's crimes were committed in order to become incarcerated so that Father's child support obligation would be lessened. If such were the case, I would agree that income should be imputed. Absent that, imputing pre-incarceration income to Father is nothing more than an extra punishment. Punishment is not the point of a child support order."
Case Law Development: Father's Eight Year Delay in Asserting Paternity Creates Estoppel
While estoppel in paternity actions is a fairly common claim, it is usually raised to estop a father's denial of paternity. The Pennsylvania Superior Court has now applied the doctrine of estoppel to prevent a father from asserting his paternity. The court held that a man who waited eight years before seeking to form a paternal relationship has forfeited any right to demand a paternity test or assert parental rights, even though the fact of his biological connection to the child is undisputed.
Buccieri v. Campagna, 2005 PA Super 403, 2005 Pa. Super. LEXIS 4176 (December 7, 2005)
The case is reported by Asher Hawkins of the The Legal Intelligencer The opinion is on the web at http://www.superior.court.state.pa.us/opinions/A35036_05.PDF (last visited December 14, 2005 bgf)
Domestic-Violence Act Extension Sent to President
Congress on Saturday sent President Bush an extension of the Violence Against Women Act that would increase funding for the landmark act. The House passed the bill on a voice vote Saturday, a day after the Senate approved it. The Act is aimed at curtailing domestic violence through funding for women's shelters and law enforcement training, expired in September. It originally passed Congress in 1994 and was renewed in 2000. The latest renewal extends the legislation five years at a cost of about $3.9 billion. This is a 20 percent increase over the last five-year extension. Source: IndyStar.com. Please click here for more information (last visited December 19, 2005, reo).
Army Officer Divorce Rates Fall in 2005
Army officer divorce rates fell sharply in 2005 after a spike in marital split-ups generated national debate over whether the war in Iraq was tearing families apart. The dramatic increase, then decrease, in divorce statistics from 6 percent of all active-duty officers, about 60,000 total, in 2004 to 2.3 percent in 2005 had statisticians double-checking their numbers. However, the numbers held on a recount. Source: Kelly Kennedy, Army Times, armytimes.com. Please click here for complete story (last visited December 18, 2005, reo).
Author Says Holidays “Busiest” as Spouses Shop for Divorce Lawyers
According to Beverly Pekala, author of "Don't Settle for Less: A Guide to Divorce," we're now in the busiest time of year for divorce attorneys because spouses are doing their holiday shopping for a lawyer." She says that "divorce is planned prior to the holidays and executed after the first." Ms. Pekala states that many people don't want to rock the family boat during what is typically a festive time of year, out of deference to children, extended families and personal reputations. There may also be psychological considerations of making the first of the year a fresh start. Source: businesswire.com. Please click here for the complete story (last visited December 18, 2005, reo).