Family Law Prof Blog

Case Law Development: Termination of Parental Rights Does not End Child Support Obligation

In an unpublished opinion, the Illinois Supreme Court has held that the termination of parental rights does not extinguish a child support obligation unless the child is being adopted.  The court relied on the language of the Illinois statute, which refers to termination of parental obligations as to “a child sought to be adopted.”   The court stated: "We conclude that, after the entry of an order terminating parental rights, where the child is not adopted, [the Act] applies as its plain language indicates, only where the child is 'sought to be adopted'…. To hold that this language is of no effect, as respondent urges, would render the language superfluous or meaningless."  The court rejected the appeals court’s  interpretation of the “sought to be adopted” language as including any child 'available for adoption', noting that the legislature could have specifically used this language.

Three judges dissented, arguing that the court’s interpretation created significant inconsistencies in the law, both between the termination statute and the juvenile code and between this holding and prior precedent.

Illinois DHFS v. Warner, Ill., Illinois Supreme Court, January 25, 2008
Opinion on the web (last visited February 9, 2008 bgf)

Case Law Development: Default Administrative Child Support Order Does not Establish Paternity Sufficient to Support Criminal Non-Support Action

The Supreme Court of Missouri has issued a number of decisions this past year relating to paternity -- requiring greater process to prove or disprove paternity.  In its latest decision, the court concluded that the state's child support administrative system was not sufficient process to establish paternity when the order was by default.  The court held that, the state failed in its burden to prove the duty to support one's child where there was no final judgment of paternity by a circuit court and, thus, no "legal process" that judicially determined defendant's parentage. In the absence of a circuit court judgment, defendant was not prevented from collaterally attacking the administrative order used to establish his obligation of support that, in turn, served as the basis for this criminal prosecution. Because the State failed to prove that the child had been legitimated by "legal process," the judgment was reversed, and the case was remanded.

State v. Salazar, 236 S.W.3d 644 (October 30, 2007)
Opinion online (last visited November 9, 2008 bgf)

Case Law Development: What is Proper Documentation of College Enrollment for Purposes of Post-Majority Child Support

Missouri is one of the few states that requires post-majority child support for children attending college.  The statutory scheme has been amended a number of times in recent years to provide more detailed requirements regarding notice of enrollment to the obligor parent, minimum credit hour enrollments, and the like.

In a case of first impression, the Missouri Court of Appeals has interpreted one of those statutory requirements: that the child provide each parent with a "transcript or similar official document."  The court held that a print out of courses, credits and grades from a college's web-based system, while not an "official transcript" sufficiently met the meaning of "transcript" in the statute to require Mother to pay child support. 

Waddington v. Cox, Mo. App. January 2, 2008
Opinion online (last visited January 8, 2008 bgf)

For a chart comparing state approaches to post-majority support for college students, see the National Conference of State Legislatures' 2005 Summary

Passport Denials as Effective Tool in Collecting Delinquent Child Support

The Associated Press reports that new passport requirements that have complicated travel this summer also have uncovered untold numbers of child support scofflaws and forced them to pay millions.  The State Department denies passports to noncustodial parents who owe more than $2,500 in child support. Once the parents make good on their debts, they can reapply for passports.

Read the New York Times article (last visited August 15, 2007 bgf)

Legislative Update: Bills to Allow Disestablishment of Paternity

Legislation is working its way through the Colorado legislature that would make it harder for Colorado to force people to pay child support to children DNA tests have proven aren't theirs.  The text of the bill.   See the CBS4Denver website for a news video on the bill. 

According to the Kansas City Star, this week a bill was introduced into the MIssouri legislature allowing DNA evidence to disestablish paternity after the current one-year limitations period.

See this Time magazine article on the national movement to pass similar legislation.

(all links last visited February 15, 2007 bgf)

Case Law Development: Liability for Child Support Arrearages When Paternity is Disproven

The Arkansas Surpeme Court held recently that  "an individual who was an adjudicated father or who acknowledged paternity, but was later determined not to be the father, shall have the previous finding or establishment of paternity set aside and he shall be relieved of any future obligation of support."  The court refused, however, to find that arrearages could also be set aside.  Here a default judgment had been obtained against the alleged father, who never paid any child support.  When he was brought before the court on contempt charges, he requested a paternity test.  Upon finding that the test excluded him as the father, the court discharged any future child support but held that the statutory language was clear and did not permit discharging past child support judgments.

A dissenting judge argues that "The decision today arguably reaches a grossly unfair result by saddling a person with a past-due support debt when that person has never claimed to be the father of the child and when he has been found, after paternity tests, not to be the biological father." and urges legislative clarification.

ARKANSAS OFFICE OF CHILD SUPPORT ENFORCEMENT V. PARKER,
2007 Ark. LEXIS 28 (January 11, 2007)
Opinion on the web (last visited January 15, 2006 bgf)

Case Law Development: Courts May Not Enjoin Parents From Collecting on Child Support Arrearage Judgments

The Alabama Court of Appeals reversed a trial court's order in a child support modification case in which the trial court had set a repayment schedule for child support arrearages and had then ordered that mother could not pursue any other enforcement actions so long as father was making the court ordered payments.  The court of appeals noted that such a restriction on the mother's private collection efforts was in error, especially given the paucity of the repayment schedule the court had ordered. As the court observed:

... the trial court determined that the father owed accrued arrearages in the amount of $45,141.51, plus interest.... if the father were able to make only monthly $100 installment payments to reduce the owed arrearages, he would be paying those installments for over 37 years; that computation does not include the additional interest that will accrue during the repayment period, and the father will therefore most likely never be able to retire the total amount of the arrearages during his lifetime. In addition, the trial court also modified the divorce judgment to relieve the father from maintaining a life-insurance policy to benefit the parties' children in the event of his death before they reach the age of majority.

The court reversed, directing the trial court to remove the restriction on mother's ability to seek to collect on the arrearage judgment through standard debt-collection processes.

Leopold v. Leopold, 2006 Ala. Civ. App. LEXIS 631 (October 20, 2006 bgf)

Case Law Development: Father Trying to Make a Federal Case Out of His Child Support Orders Faces Immunities, and State Action Doctine Bars

Ordinarily when a federal court hears a case that constitutes, in essence, an attempt to collaterally attack a family law order, it invokes abstention doctrines.  (See last year's Family Law Prof Blog post on the subject) In a recent case before the United States District Court for the District of Delaware, the court instead analyzed each of a father's numerous causes of action under federal statutes (civil rights, RICO, etc.) and pendent state-law claims (intentional infliction of emotional distress) brought against state judges, child support enforcement attorneys, court-appointed mediators, judicial administrators, the governor and his wife's attorney (I may have missed some there but you get the picture). 

The opinion is a short course in immunities (with the court dismissing numerous defendants under doctrines of sovereign immunity and judicial and quasi-judicial, and prosecutorial immunity).  The analysis of immunity of court-appointed mediators may be especially interesting to some readers.  I found the opinion striking for its extraordinary degree of respectful consideration given to the pro se litigant, as the court carefully examined and then dismissed each of the plaintiff's claims, without any perjorative characterizations of his attempts to seek the court's intervention.

Joynes v. Meconi, 2006 US Dist LEXIS 71296 (September 30, 2006)
Opinion on web (last visited October 8, 2006 bgf)

Case Law Development: Agreements Waiving Child Support Arrearages or Estopping Parents from Asking for Modification if Children Change Residence are Void as against Public Policy

Mother and Father had entered into a child support agreement (incorporated into a decree) that provided that both parties were estopped from seeking to modify child support based on changes in the placement of the children.  The agreement also waived of any of Father's child support arrearages owed to that point.  In this later action, the trial court credited Father for the time that one of the sons had lived with him. Mother argued that Father should have been estopped from requesting a credit because of the previous stipulation that child support would not depend on the child's placement.  The trial court held the stipulation void as contrary to public policy because it purported to remove child support issues from the jurisdiction of the courts. The Court of Appeals of Wisconsin affirmed. However, the court, sua sponte, also held that the term in the parties' previous agreement waiving Father's prior arrearages was also void as against public policy. The court remanded for a calculation of arrearages. 

On its decision to void the second part of the agreement sua sponte, the court commented:

[Father] may object that we have reached out to discuss this issue even though neither of the parties addressed it before the circuit court or on appeal. We reject this. This court may consider issues sua sponte in order to correct errors of law. ...This is particularly so where it appears that an agreement is void as contrary to public policy. ... We will not close our eyes to the fact that the agreement [Father]properly insisted is void as against public policy was agreed to in consideration of an interlocking agreement forgiving [Father's] past arrearage, itself a violation of public policy.

Motte v. Motte, 2006 Wisc. App. LEXIS 880  (September 27, 2006)
Opinion on the web (last visited September 28, 2006 bgf)

Case Law Development: Costs for Recovering Abducted Child from Another Country as Child Support or Attorneys Fees

The Maryland Court of Special Appeals addressed a case that I'm inclined to assign to students at the end of the semester with the instructions, "Here, read this case about all the topics we barely touched upon in the course and don't ever let me hear you say -- 'if I can't find a job, I can always do some family law!'"   

The case involves a factually and legally complicated story of Mother and Father who had a son (while Mother was married to another man).  When the son was 2 1/2 years old, and while a custody action between the parents was pending in Maryland, Father abducted him and took him to Turkey.  The court chronicles Mother's efforts to recover her son, which required 2 1/2 years, 11 trips to Turkey, multiple court hearings in both Maryland and Turkey, and over $350,000 in legal and private investigation fees and expenses.  Simply reading the story of what happened in this case to the point of the child's return is like a short course in international child custody litigation.

However, the case before the Maryland court required even more, as Mother was awarded some of her expenses in securing her son's return to the United States, which Father challenged in this appeal and sought to avoid through a separate bankruptcy proceeding.  The trial court had granted Mother $200,000 in costs in one proceeding and then $252,930 in a second hearing, which it treated as an award of counsel fees and costs.  Mother sought to have the first award characterized  as a contempt sanction and argued that the trial court had erred in overruling her motion to have the second award made as child support. 

The court commented on the parties' motivation for this characterization dispute: "The only reason the parties are arguing over whether the court could sua sponte treat Mother's motion as one for counsel fees and costs, and whether the $ 252,930 judgment is for child support, is that they believe the answers to those questions will determine ... whether that judgment was entered in violation of the automatic stay in bankruptcy.... [T]hat issue is to be decided under federal law, not Maryland law; and federal law about what obligations are child support, or "in the nature of child support," differs from Maryland law on that subject. Therefore, our answers to these two questions do not have the significance the parties believe they do."  Indeed, the court went on to explain that, while under state law "counsel fees and costs incurred by a parent in a custody case are not child support, even when they are for the benefit of the child", under federal law, these same expenses are "in the nature of child support" and thus non-dischargeable.

Regarding the characterization of the first award, the court found that the trial court had erred in characterizing that award as one for contempt, as there were no purge conditions in the first award. Rather, the court found that the trial court had retroactively re-characterized the first award in the hearing on the second award.  That error required reversal and remand.

While Father prevailed in this round of the litigation, the court was not without commentary on his approach to the litigation. The court addressed Father's argument that he should not be required to pay Mother for the expenses incurred in recoverying the child because Mother's husband -- not Mother -- had actually paid those expenses. In rejecting this argument, the court noted "If nothing else, this argument is notable as a fine example of chutzpah" with a footnote that explored the definition of the term and its use by the courts.

So, read and enjoy, and save the opinion in case you have trouble convincing your curriculum committee that there is sufficient content to justify offering an advanced child custody class.

Corapcioglu v. Roosevelt, 2006 Md. App. LEXIS 219 (September 20, 2006)
Opinion on web (last visited September 22, 2006 bgf)

Case Law Development: Emancipation May Not Be Based Solely on Poor College Grades

A New Jersey trial court ordered that a 20-year-old daughter would be emancipated if she did not earn a
"B" average in college that semester.  In the court's words, " "Whatever she finishes this semester with, if it's a B average, [Father] pays. If it's not a B average, he's off the hook, and maybe she has to take a year off and get a job and save money so she can go to school the next year. Maybe she has to go to school at night and work during the day or vice-versa."  When daughter's semester did not meet the grade standard imposed, the trial court ordered a termination of child support.  The court of appeals reversed, concluding that "Early struggles at school do not take a child outside of the parental sphere and make him or her independent. On the contrary, when the child struggles in college he or she may need and rely on his or her parents even more than during times of success. The standard applied by the court was arbitrary, capricious and unreasonable." The appellate court also found that the trial judge had failed to make adequate findings as to the father's ability to contribute to his daughter's college expenses.

Keno v. Pilgrim, (August 15, 2006)
Opinion on the web (last visited August 15, 2006 bgf)

Case Law Development: Child Support When A Child is Incarcerated

The Alabama Supreme Court rejected a father's argument that he should be relieved of child support obligations after his son had been sentenced to life in prison for murder.  Alabama's child support statute does not include a child's incarcertaion as a basis for emancipation, but the Alabama courts have found that "emancipation in fact" may provide a basis for terminating child support.  Nonetheless, the court here found that little legal or factual support for father's argument in this case.  The court noted that, while opinions from some states have suggested that a lengthy incarceration may provide a basis for finding a child emancipated, no court had yet done so.  Moreover, since Mother was continuing to provide financial support for the child (depositing money into his prison account), he was not emancipated.  Quoting a Missouri court opinion on the same subject,  Sutton v. Schwartz, 860 S.W.2d 833, 835 (Mo. Ct. App. 1993), the court commented that "[i]f a custodial parent is willing to help a child with behavioral problems, chemical dependency problems, and criminal convictions, the courts should not hinder the providing of such help by eliminating financial assistance by the non-custodial parent."

However, the court did find that the child's incarceration might provide a basis for a modification of child support and remanded for the trial court's consideration of that issue.

Finally, the court found that the chancellor abused his discretion in awarding Mother $5,000.00 in attorney's fees incurred in the defense of the child's criminal case.  The court found that these were not properly considered "extraordinary expenses" of supporting a child.

Edmonds v. Sharon Edmonds & Dep't of Human Servs., 2006 Miss. LEXIS 383 (August 3, 2006) bgf

Supreme Court of Canada Requires Disclosure of Increased Income by Child Support Obligors

The Supreme Court stopped short of ordering a duty to disclose salary increases automatically, but the judges signalled that paying parents should do so as a matter of course because children of divorce have a right to a share of an income hike. ''Parents have an obligation to support their children in a manner commensurate with their income and this obligation and the children's right to support exists independently of any statute or court order,'' wrote Justice Michel Bastarache. The unanimous decision, which could affect hundreds of thousands of families, will mean a ''huge change'' in the way the child support business is conducted in Canada, predicted lawyer Deidre Smith.

The Supreme Court of Canada sent a warning to divorced parents on Monday that they better come clean when their income goes up, or they could face sizable retroactive child support bills. 

Continue reading the story by JaniceTibbetts, CanWest News Service (last visited August 1, 2006 bgf)

Michigan Attorney General Reports Collecting More than $26 Million in Child Support

The Michigan Attorney General reports that his office has collected more than $26 million in child support since 2003 involving more than 3,000 children. He says that his child support enforcement program “focuses on prosecuting parents who have the ability to pay child support but choose not to.”  Source.  WWMT-TV, Wwmt.com. For the complete story, please click here (last visited June 11, 2006, reo).

Case Law Development: Income Withholding Not Subject to Limitations Period for Actions to Enforce Judgments

The Minnesota Supreme Court holds that, because administrative income withholding proceedings initiated by a county to collect child support arrearages are not judicial proceedings, they also are not "actions" within the meaning of the Minnesota statute providing a 10-year limitation period on actions to enforce a judgment.

Gerber v. Gerber, 2006 Minn. LEXIS 338 (June 1, 2006) Opinion on the web (last visited June 6, 2006 bgf)

Newfoundland and Labrador Enact New Child Support Enforcement law

The provincial government of Newfoundland and Labrador has passed a new law that will put more teeth behind the enforcement of child and spousal support orders. The new law allows the province to suspend drivers' licenses or revoke a big- game license if a child support obligor is not making adequate child support payments.  Source.  Cbc.ca/n/story. For the complete story, please click here (last visited May 24, 2006, reo).

Florida Bill Releasing Child Support Obligation Because of DNA Test Goes to Governor for Approval

Men in Florida who have been paying child support, but can show they are not the biological father of a child through a DNA test, may be relieved of their support obligation if  Governor Jeb Bush signs a bill sent to him this week by the Florida Legislature.  Florida law currently requires that once child support is established, the obligation continues until the child's 18th birthday, even if the obligor is not the biological father.  Source. Stephen D. Price, Tallahassee.com. Please click here for the complete story (last visited May 20, 2006, reo).

Legislative Development: Kansas Law Limits Where Deadbeat Parents May Drive

When a child support obligor owes more than $500 in child support, under a bill signed into law Wednesday by Kansas Governor Sebelius, the individual will be limited in where a car may be driven. The new law provides that an obligor may drive only to or from work or school, or in case of a medical emergency.  The bill originally would have revoked the license of these parents, however, legislators amended the proposal so the obligor could drive on a limited basis.  Legislators felt that if the parent could not  drive to work, money needed to pay child support could not be earned. Source.  49abcnews.com. Please click here for the complete story (last visited May 20, 2006, reo).

Ohio Court Sentences Father Who Earlier Escaped Procreation Ban To Six Months In Jail For Nonsupport

In 2004 the Ohio Supreme Court ruled that a trial judge could not order a deadbeat dad to not procreate as a part of his probation for not staying current on child support payments.  The trial judge had imposed as a condition of probation that the obligor make “all reasonable efforts to avoid conceiving another child” during his five-year probationary period.”  The Ohio Supreme Court said that the antiprocreation order was overlybroad.  However, this week the man was given six months in jail for continuing to fail to pay child support.  He has fathered seven children by five women.  Source. AP, ohio.com. To read the complete story, please click here (last visited May 14, 2006, reo).  A copy of the 2004 opinion from the Ohio Supreme Court, State v. Talty, 103 Ohio St.3d 177 (2004), can be found by clicking here (last visited May 14, 2006, reo).

Kansas Legislators Toughen Penalties for Deadbeat Parents

Kansas legislators toughened penalties on deadbeat parents this week. Under provisions passed and sent to Governor Kathleen Sebelius for signature, the state can pull hunting and other recreational licenses issued by the Kansas Department of Wildlife and Parks from parents who have fallen behind in child support payments. In addition, the legislation would allow the state to suspend driver's licenses from parents who repeatedly fail to financially support their children.  The governor is expected to sign the measures into law. Source.  Sarah Kessinger, Harris News Service, hutchnews.com. To read the complete story, please click here (last visited May 14, 2006, reo).

Minnesota Takes Away Fishing Licenses for Failure to Pay Child Support

To the surprise of some fishing license applicants, Minnesota suspends or revokes the fishing licenses of obligors with outstanding child support payments.  It is reported that about 220 people have lost their fishing licenses since the state Department of Natural Resources began the program, which also encompasses hunting licenses.  At least 120 persons received notice within the last six months that if they don’t pay up outstanding child support, they will not be eligible for a fishing license.  Source.  KSTP-TV.com. To read the complete story, please click here (last visited May 14, 2006, reo).

California Proposal Seeks to Help Collect $19 Billion in Outstanding Child Support

It is estimated that there is $19 billion uncollected child support in the state of California. Last year, the state collected less than 50% of the child support owed.  A proposal called “AB 2440,”  if passed into law,  would make any person or business entity in California that knowingly assists a person with unpaid child support to evade his or her responsibility jointly and severally liable for 10 times the value of the assistance provided, up to the total amount of the child support debt. “Under the bill, “knowingly assists” is defined to include: (1) helping to hide or transfer assets; (2) failing to timely file a new employee or independent contractor with the Employment Development Department (EDD); or (3) engaging in the paying of wages or other forms of compensation through payment of cash or via barter or trade.”  Source.  Californiachronicle.com. Please click here to read the complete story (last visited May 10, 2006, reo).

Case Law Development: Laches May Bar Emancipation Arguments in Actions to Collect Child Support Arrearages

When can a parent argue emancipation to reduce child support arrearages? In this action, approximately seven years after his son turned 21, and was thus statutorily emancipated, Father sought to reduce his child support obligation or arrearage by arguing that his son had become emancipated at age 16, ten years earlier. The trial court determined that the child had become emancipated at age 18 and reduced Father's child support arrearages.  Father appealed, arguing that the child was emancipated at 16, but was unable to establish that the child was self-supporting.  The state child support agency argued that father should be barred from arguing that the child was emancipated at all because of the doctrine of laches. 

The Indiana Court of Appeals concluded that, while the doctrine of laches generally does not apply to child support cases because Indiana courts will not penalize a child for his or her parent's delay in pursuing child support, the policy behind the rule did not apply in this case.  Thus, the court held that the doctrine of laches could properly be considered in these circumstances.  The court remanded to the trial court to conduct a hearing and determine if Father's contention that child was emancipated prior to the age of twenty-one is barred by laches.

Paternity of P.W.J., 2006 Ind. App. LEXIS 819 (May 5, 2006)
Opinion on the web (last visited May 8, 2006 bgf)

Florida Legislature Considers Bill to Allow Paternity Challenge at Any Time during Minority – Relieves Obligor of Support Obligation

The Florida House passed a bill last week 96-17 that allows a child support obligor, who discovers at any point during a child’s minority that he is not the biological father, to be relieved of a support obligation.  Current Florida law, which is similar to that in many other states, allows the paternity of a child to be challenged only in the first two years of a child's life.  Opponents of the measure argue that the legislation disregards the well-being of a child and promotes family instability.  The measure now moves to the Florida Senate. Source.  Paige St. John, Tallahassee Democrat, Tallahassee.com.  To read the complete story, please click here (last visited May 3, 2006, reo).

Case Law Development: Retroactive Modification of Child Support to Account for Emancipation

The Arizona Court of Appeals holds that a trial court may not retroactively modify a child support order to alter the amount of arrearages accrued before notice of the petition to modify was given to the obligee parent. Moreover, while the court can modify an existing child support obligation to account for one child's emancipation, the earliest authorized effective date of the modification order is the filing date for the petition.  The court distinguished a prior decision in which a child had married and the trial court termined support retroactive to the marriage as involving termination of the support obligation, which occurs automatically upon a child's marriage, rather than modification of child support.  Here, while one child had become emancipated, there was another child owed support and an action to modify was necessary to determine the total support amount.

Guerra v. Bejarano, 2006 Ariz. App. LEXIS 58 (April 27, 2006)
Opinion on the web (last visited April 30, 2006 bgf)

Case Law Development: No Credits Against Child Support Arrearages for Social Security Retirement Benefits Paid to Children

The Court of Appeals of  Hawai'i provides a thorough review of caselaw from across the United States regarding credits toward child support for social security dependent payments.  The court reversed a trial court that had applied the social security retirement beneficiary payments paid to Father's childrens as a credit against Father's child support arrearages that had accrued before his retirement. 

The court noted the majority of jurisdictions that hold that an obligor's social security disability and retirement benefits paid to dependents both may be credited against contemporaneous child support obligations. (See Family Law Prof blog postings of January 8 and November 18). The question in this case, however, was whether those payments could be used to satisfy arrearages.  Reviewing decisions of other states on this question, the court agreed with the majority approach and declined to allow a credit to be applied to arrearages.  The court noted that "the Social Security disability payments belong to the children. To allow any part of that money to be credited towards the obligor's arrearage which was due prior to his or her date of disability would be, in essence, requiring the children to purge the obligor of contempt."

Clark v. Clark,  2006 Haw. App. LEXIS 156 (April 19, 2006)
Opinion on the web (last visited April 29, 2006 bgf)

South Carolina Finds Man Owning $181,000 in Child Support After 13-Year Search

A man who remarried and changed his name has been arrested by South Carolina authorities after 13 years on a criminal bench warrant saying he owes $181,000 in child support payments.  According to press reports, the obligor was ordered to make child support payments in 1992 but failed to do so. Later, he left South Carolina and changed his name. He was eventually located living in Alabama. Source. The State.com. The complete story may be found here (last visited April 22, 2006, reo).

Missouri Man Targets Payroll Clerk Because Paycheck garnished for Child Support – 4 Dead in Shooting Spree

A Missouri man who killed his wife and two co-workers, and then turned the gun on himself, is thought to have targeted his employer’s payroll clerk because he was upset his paycheck was being garnished for child support payments.  Source. 5Ksdk.com. For the complete story, please click here (last visited April 19, 2006, reo).

Case Law Development: Fear of Domestic Abuse Defeats Laches Defense in Child Support Actions

The Minnesota Court of Appeals in an unpublished opinion upheld a trial court's determination of child support arrearages extending back 13 years.  The case involved a couple who had a child in 1988.  In 1990, Mother obtained an order of protection against father for his acts of domestic abuse and also filed for child support.  While the support action was served on Father, the court never issued the order.  Father went to another state and had no more contact with Mother or Child.  In 2003, the county filed a child support action against father which mother joined, and the district court gave it the same case number as the 1990 action.  Father argued that the Minnesota Statute which allows liability for past support to be retroactive only 2 years before commencement of the action prohibited an arrearage award going back to 1990.  The court disagreed and entered an order for $106,496.  Father also argued that mother had abandoned her original 1990 action and that laches should bar the claim.  The court rejected both arguments on the grounds that mother's failure to pursue the child support action was not voluntary in that "appellant's domestic abuse created a reasonable fear in respondent that constituted excusable neglect in pursuing her claim."

Ramsey County v. Taylor, 2006 Minn. App. Unpub. LEXIS 325 (April 11, 2006)
Opinion on the web (last visited April 13, 2006 bgf)

Case Law Development: Use of Body Attachment Unconstitutional in Actions to Enforce Past Due Child Support if No Continuing Support Obligation Exists.

The Indiana Court of Appeals reversed a trial court's order of body attachment in a child support enforcement action.  The case involved a father who was five years in arrears in child support and had resisted prior court efforts to compel his payments.  Indiana statutes provide that a court may use body attachment pursuant to its contempt power in order to compel payment of child support.  However the Indiana Supreme Court had held that, when a child was emancipated, there was no justification for using this tool merely to enforce an arrearage and to do so would violate the state constitution's prohibitions of imprisonment for debt.  Here, the child in question had been adopted by stepfather, thus cutting off Father's future child support obligations.  Thus, the court holds that, here too, the justification for using body attachment as a contempt tool to enforce the obligation to pay past due child support would be unconstitutional.  The court did not appear to be suggesting that body attachment would be unconstitutional in all cases of child support enforcement, but only in those instances in which there is no longer a continuing duty of support and the enforcement action is for past due amounts only.

Foley v. Mannor, 2006 Ind. App. LEXIS 468 (March 17, 2006)
Opinion on the web (last visited March 21, 2006 bgf)

Case Law Development: Expert Testimony that Child Support Exceeds Average Cost of Child Rearing Not Basis for Downward Adjustment in Support

Father, who was originally ordered to pay over $8,000 a month child support based the parties' stipulation and on his annual income of over $540,000, moved to decrease his child support.  The Arkansas trial court agreed that his decrease in income to about $475,000 was a basis for adjusting downward his child support, but only in proportion to that change in income.  The court found that Father had not met his burden of proof that further downward adjustment was warranted based on the testimony of Father's economist expert.  The expert used a consumer expenditure survey published by the United States Department of Labor and concluded that the cost of raising two children from 2004 until the time that the youngest child reached majority will range between $18,000.00 and $ 22,000.00 per year. The Arkansas Court of Appeals affirmed the trial court's decision to reject further downward adjustment.  Further, the court reversed the adjustment that the trial court did provide because, even with Husband's decrease in income, the amount of child support he would pay under Arkansas child support calculation chart was about the same as that ordered in the original decree.  While Father characterized his financial position as "dire" the court of appeals noted that he was able to afford a $70,000 engagement ring for his fiance and to donate $4,000 a month to charity.

Morehouse v. Lawson, 2006 Ark. App. LEXIS 200 (March 8, 2006)
Opinion on the web (last visited March 9, 2006 bgf)

Man $80,000 in Child Support Arrears Gets 10 Month Jail Sentence

A 58 year-old North Dakota father who owed $80,982.24 in back child support was sentenced to 10 months in jail by U.S. District Court Judge Ralph Erickson after pleading guilty to a felony charge of failure to pay child support.  The father admitted to fleeing to Montana in his effort to escape his child support obligation. He also admitted that he had been moving around since 1997 in attempts to hide.  Source:  Grand Forks Herald, grandforks.com. For the complete story, please click here (last visited February 18, 2006, reo).

Case Law Development: No Right of Action under Section 1983 for State's Failure to Distribute Child Support Payments in Compliance with Statutory Provisions

Child support enforcement agencies are faring better in 1983 litigation than child protection workers.   In this case, the US Court of Appeals for the Eleventh Circuit upheld summary judgment for the state child support enforcement agency in this Section 1983 case brought by custodial parents who receive child support payments collected, distributed, and disbursed by the State of Alabama.

The district court held that the parents had failed as a matter of law (1) to establish 42 U.S.C. § 657 creates individual rights, enforceable under § 1983, to distribution of child support payments in strict compliance with § 657; and (2) to show a § 1983 violation of their procedural due process rights.  The Court of Appeals affirmed.

Arrington v. Helms, 2006 U.S. App. LEXIS 3434 (February 13, 2006) bgf

Kansas Child Support Enforcement Legislation Seeks to Restrict Driving Privileges

A bill being proposed in the Kansas House would suspend the driver’s licenses of parents who fall more than $500 behind in their court-ordered child support payments. Another bill being discussed in the Kansas Senate would bar delinquent parents from buying hunting and fishing licenses and camping permits. It is reported that Kansas ranks 34th in the nation in the percentage of children receiving their due financial support. Source:  Dave Ranney, Scott Rothschild, Lawrence Journal-World, ljworld.com. For the complete story, please click here (last visited February 8, 2006, reo).  Download Kansas_House_Bill_2706_suspending_driving_privileges.pdf  Download Kansas_Sentate_Bill_459_suspending_hunting_licenses.pdf

Minnesota Report Shows Cost-Effectiveness of Collecting Child Support Varies Widely

The cost-effectiveness of collecting child support varies widely, according the Minnesota legislative auditor's report that was issued Monday.  On average, for every dollar the state spends enforcing child-support payments, it retrieves $4.14. However, in Norman County, Minnesota officials retrieve $9.04 in child support per dollar spent. However, in neighboring Mahnomen County, officials retrieve only $1.66 for every dollar spent on collections.  The report also said that Mnnesota has the 15th least cost-effective program nationwide and had the second smallest caseload per child-support employee in the country in 2004. Source:  Rachel E. Stassen-Berger, Pioneer Press, twincities.com. For the complete story, please click here (last visited February 8, 2006, reo).

Michigan Man Falsely Convicted of Murder Owes $38,000 in Child Support

A Michigan man, Larry Souter, served 13 years in prison for a murder he did not commit.  He stopped paying his ex-wife $100 dollars each week for child support when he went to prison in 1992.  Now, with interest and penalties, Souter owes more than $13,000 in back child support. Souter was released from prison this year after his lawyer discovered evidence that would have helped clear him of the charge.  Source:  WLNS-TV News, wlns.com. For the complete story, please click here (last visited February 4, 2006, reo).

Legislative Development: Ohio to Charge Interest on Unpaid Child Support

Ohio Governor Bob Taft is expected to sign a bill passed earlier by the state legislature that targets deadbeat parents by adding interest charges on unpaid child support. The bill speeds up the time it takes to get paternity tests on children. The bill allows unwed mothers to go directly to a juvenile court to get a genetic paternity test order, bypassing county child enforcement agencies. Source: Ohio News Network, onnnews.com. The story may be found here (last visited February 1, 2006, reo). A copy of the Ohio House Bill, HB 0136, may be found here (last visited February 1, 2006, reo).

Illinois Judge Says Father Owes $381,373 in Back Child Support

In a domestic dispute covering almost eight years, an Illinois father was ordered to pay a record $381,373 in back child support. In making the award, the trial judge criticized the father, Kerry Levin, for allegedly manipulating his income and obfuscating the facts regarding his finances. Mr. Levin is reported to have used nine different lawyers while litigating the matter.  Source: Andrew Herrmann, Chicago Sun-Times, suntimes.com. For the complete story, please click here (last visited February 1, 2006, reo).

Case Law Development: Allocation of Dependency Tax Exemptions

Just in time for tax preparation season, the Iowa Court of Appeals reverses a trial court's decision modifying a divorce decree to allocate the dependency exemptions to the non-custodial parent.  The original decree was silent on the issue of exemptions, but under the state's child support guidelines those exemptions should ordinarily be allocated to the custodial parent (in this case, mother). Father moved to modify the decree and the trial court found that father, as the higher-earning parent, would benefit more from the tax exemptions than would mother. 

The court of appeals reversed, finding no equitable reason to deviate from that rule that the custodial parent should receive the tax exemption.  A concurring judge would have found that the original decree implicitely addressed the issue given the guidelines and that Father had shown no change in circumstances justifying an amendment.

In re Marriage of Wetherbee, 2006 Iowa App. LEXIS 53 (January 19, 2006)
Opinion available on the web (last visited January 22, 2006 bgf)

Case Law Development: Scienter in Criminal Non-Support Actions

The Missouri Supreme Court reviewed the conviction of a Father for criminal non-support.  Father challenged the conviction on the basis of the state's failure to prove that he knew of his court-ordered child support obligation. The court held that the state need not prove that Father was aware of a court order for child support, so long as he knew that he was the father of the children that was sufficient to satisfy the "knowingly" requirement of the act. "The purpose of the criminal nonsupport statute is to compel recalcitrant parents to fulfill their obligations of care and support; the purpose is not to enforce court-ordered child support obligations.... As such, in a prosecution under section 568.040, the existence of a child support order is merely evidence of what constitutes 'adequate support.'"  Two judges dissented.

State v. Reed, 2006 Mo. LEXIS 14 (January 10, 2006)

Michigan Attorney General’s Child Support Division Collects over $11.6 Million in 2005

The Michigan Attorney General’s Child Support Division has collected more than $11.6 million in 2005. Since creating the Division in 2003, it has collected $22,046,379.07 for 2,132 Michigan children and has arrested more than 1,600 non-paying, non-custodial parents across Michigan and the nation. When the division was created in 2003 by Attorney General Mike Cox, it was first of its kind in the nation. Collecting child support is a cooperative effort, with the Attorney General's office working together with the Office of Child Support in the Department of Human Services. That Office has also created cooperative prosecution agreements with most of the prosecuting attorneys in Michigan. Source:  prnewswire.  For additional information, please click here (last visited January 11, 2006, reo).

Thousands of Tennessee Parents May Lose Licenses Under Annual Child Support Crack Down