A $1.2 million penalty for child support denial

On Nov. 29, 2007, the Supreme Court of Illinois upheld a failure to pay child support penalty in the amount of $1.2 million. If you think this was an outrageous penalty that had no relation to the amount of actual child support owed, you are right. If you think the Illinois Supreme Court probably got this one wrong, you are probably right. However, any employer responsible for remitting child support payments on behalf of an employee certainly won't be remitting those child support payments late anymore.

Here are the facts: Lenora's former husband, Harold, was ordered to pay Lenora child support in the amount of $82 per week. Harold worked for his father in his father's architecture firm. Harold's father properly received a notice from Lenora's attorney requiring Harold's father, and his architecture firm, to withhold $82 per week from Harold's pay, and remit this child support payment to Lenora on a weekly basis. The facts are as plain and simple as that.

As of Jan. 1, 1999, the Illinois Legislature enacted a child support statute which provides for a $100 per day penalty for each child support payment not made in a timely fashion. For example, if an employer pays his employee a salary each week, the employer is required to withhold child support from his employee's pay check on a weekly basis.

If the employer does not withhold the requisite child support and send the money to the custodial parent each week, then the penalty applies. If the employer does not remit child support payments for 130 weeks, as Harold's father failed to do, each of the weekly child support payments continue to incur a $100 per day penalty for each day the child support payments remain unpaid.

In the Miller case, Harold's father (and employer) accumulated 11,721 penalty days at the rate of $100 per penalty, for a total of $1,172,100 in penalties. As an aside, the unpaid child support totaled a mere $12,382.

As you might expect, the Illinois Legislature has broad discretion and authority to impose fines and penalties for violations of its statutes. Indeed, such governmental authority has existed for years.

The Illinois Supreme Court made several statements about this child support penalty, including the statement that, "It is difficult to imagine a more compelling state interest than the support of children."

The Illinois Supreme Court also noted that it is impossible to quantify the harm suffered by custodial parents when they do not receive child support on a timely basis, which may prevent a custodial parent from purchasing essentials such as food and medicine for a child.

It is doubtful that the entire penalty will ever be paid; however, obligations to pay unpaid child support are non-dischargeable in bankruptcy, and therefore, will probably never be removed from the employer's record.

In conclusion, it may well be that the penalty imposed on Harold Miller's father/employer was excessive, unreasonable, harsh and oppressive. The penalty was nevertheless legal, enforceable and will most certainly deter employers in the future from failing to withhold child support payments from employee pay checks, and remitting these child support payments to the appropriate party.

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Sperm Donor Wins Case Over Child Support

The Associated Press: Sperm Donor Wins Case Over Child Support

HARRISBURG, Pa. (AP) — The Pennsylvania Supreme Court ruled that a woman who promised a sperm donor he would not have to pay child support cannot renege on the deal.

The 3-2 decision overturns lower court rulings under which Joel L. McKiernan had been paying up to $1,500 a month to support twin boys born in August 1994 to Ivonne V. Ferguson, his former girlfriend and co-worker.


"Where a would-be donor cannot trust that he is safe from a future support action, he will be considerably less likely to provide his sperm to a friend or acquaintance who asks, significantly limiting a would-be mother's reproductive prerogatives," Justice Max Baer wrote in the majority opinion issued last week.


Arthur Caplan, chairman of the Department of Medical Ethics at the University of Pennsylvania, said the decision runs counter to the pattern established by similar cases, where the interests of the progeny have generally been given great weight.


"It sounds like the Pennsylvania court is trying to push a little harder into the brave new world of sperm, egg and embryo donation as it's evolving," Caplan said.


McKiernan's lawyer, John W. Purcell Jr., said Wednesday an adverse decision against his client would have jeopardized the entire system of sperm donation.


"That wouldn't just include Pennsylvania, because we found out in the course of this trial that many doctors order their sperm for their artificial inseminations out of state," he said.


Ferguson and McKiernan met while working together at Pennsylvania Blue Shield in Harrisburg and had a sexual relationship that waned before Ferguson persuaded him to donate sperm for her.


Courts found that the two agreed McKiernan would not have to pay child support and would not have visitation rights, but Ferguson later changed her mind and sued.


A county judge said it was in the twins' best interests that McKiernan be required to support them. In addition to monthly payments, McKiernan also was ordered to come up with $66,000 in back support. The appeal reverses that order.


Elizabeth Hoffman, Ferguson's lawyer, did not immediately return a phone message seeking comment left at her office Wednesday.


Justice J. Michael Eakin, in a dissent, said a parent cannot bargain away a child's right to support. "The children point and say, 'That is our father. He should support us,'" Eakin wrote. "What are we to reply? 'No! He made a contract to conceive you through a clinic, so your father need not support you.' I find this unreasonable at best."


On the Net:

* Majority opinion:here

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Even without DNA match, child support may be enforced

Yes but I don't think the courts would see it the same way if this men filed for custody, would they.

today - News - Missouri State News

KANSAS CITY — David Salazar and his estranged wife agree the daughter she gave birth to 14 months after the couple separated is not his. But Salazar narrowly avoided being jailed for 28 days in Buchanan County for failing to pay child support. Now Sen. Chris Koster, a Harrisonville Democrat, plans to try again to change how Missouri law deals with child-support cases involving men who deny paternity. The measure he introduced in the 2007 legislative session failed. Backers of the proposal say cases such as Salazar's show the state's paternity laws are outdated now that DNA testing is available. Critics say changing the law could hurt children caught in the middle. Advertisement Several other states have passed laws that allow men to introduce DNA evidence even after state-set deadlines for contesting paternity have passed. In Salazar's case, his estranged wife, Shannon McClure, asked the hospital not to list a father on the birth certificate in November 2001. But court records said the hospital listed Salazar as the father anyway. The Missouri Division of Child Support Enforcement named Salazar the father without DNA testing and served him with notice that he had a duty to support the girl. When Salazar did not appear at a hearing to determine his financial responsibility, the child-support division entered a default order requiring Salazar to pay child support. That default order was docketed with the circuit court, but the court did not hold a hearing or give any notice to Salazar. Salazar was charged with failing to pay child support after he didn't contest paternity by a state deadline. The only two witnesses at his trial were Salazar and McClure, both of whom testified that the child was not Salazar's. But a Buchanan County judge found him guilty of not paying $278 a month in child support, ruling that the Division of Child Support Enforcement's order was enough to make Salazar the legal father of the girl. Salazar was sentenced to 28 days in jail, but the Missouri Supreme Court in October overturned the jail term. The court found that Salazar can't be jailed without a hearing before a judge and a chance to prove that he is not the father. Regardless of the judge's ruling on the issue of paternity, Salazar will have to continue to pay child support. "He's not over this deal," his attorney, Merle Turner, said. "It is a can of worms." The Supreme Court's ruling affects only men who are married at the time their wives have children. Under state law that ties back to English Common Law, a married man is presumed to be the father of his wife's child and the Division of Child Support Enforcement had been able to declare such men fathers without a hearing. Larry Swall, a Liberty lawyer who is chairman of the Family Law Committee of the Missouri Bar, said the state treats men harshly from the start. spacer

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Contempt motion on support issue must be signed by a lawyer

For those in VA that might have been following the Briggman case over the years. I can only wonder how this decision will play out over time in Virginia

 

Judge: Contempt motion on support issue must be signed by a lawyer
By Alan Cooper

Staff members of the Virginia Division of Child Support Enforcement no longer are signing motions to hold in contempt parents who are delinquent in their support obligations.

The decision to abandon the practice was made after Kimberly J. Daniel, a juvenile and domestic relations district judge in Fairfax County, ruled that Virginia Code Sect. 8.01.271.1 requires such pleadings to be signed by an attorney.

The absence of a lawyer's signature makes such pleadings void ab initio, Daniel ruled on Oct. 30.

Craig M. Burshem, a senior assistant attorney general who represents DCSE, said he disagrees with Daniel but does not want to run the risk that a DCSE employee could be charged criminally with the misdemeanor of practicing law without a license. One of the 45 attorneys who routinely represents the division will sign such motions, he said.

John L. Bauserman Jr., the attorney who represented the father, and David B. Briggman, a father who believes he has been abused by the failure of DCSE to follow what he views as the law, contend that Burshem's change of position comes 20 years too late.

And they argue that the logical extension of their position has truly staggering consequences. They contend that the absence of a signature by an attorney on motions to establish child support, modification of existing orders and the enforcement of existing orders means that those pleadings are a legal nullity.

As a result, they contend, courts lack the authority to enforce tens of thousands of orders ostensibly obtained by DCSE over the past 20 years.

Briggman has filed a pro se complaint in U.S. District Court in Harrisonburg asking a federal judge to make such a ruling. Judge Glen A. Conrad heard arguments last month on the Virginia attorney general's office's motion to dismiss Briggman's suit.

He had asked the judge to bar non-lawyers from filing such pleadings, but an assistant attorney general told Conrad that they would no longer do so.

The AG's office contends that Code Sect. 16.1-260(A)(ii) authorizes non-lawyers to file such pleadings. A formal attorney general's opinion in 1988 reached that conclusion, but Bauserman and Briggman emphasize a significant qualification in the opinion. Filing such pleading is not the practice of law only "to the extent that the information provided by such employees is limited to facts, figures or factual conclusions and does not include legal arguments or legal conclusions."

Any motion to hold a parent in contempt is making a legal argument and asserts a legal conclusion that the parent is delinquent in his support obligations, Bauserman said.

Briggman filed a complaint with the Virginia State Bar's Standing Committee on the Unauthorized Practice of Law, which agreed with Briggman that completing and filing form pleadings by lay employees is the unauthorized practice of law.

But the committee found in February 2006 that Code Sect. 16.1-260(A)(ii) "authorizes the DCSE to file such pleadings on its behalf, through its lay employees and, therefore, that the conduct complained of is the authorized practice of law by such employees."

Bauserman contends that is an erroneous reading of the statute. The law requires most proceedings in juvenile court to go through an intake officer and lists three specific exceptions in which pleadings can be filed directly with the clerk: petitions from the commonwealth's attorney or county attorney, petitions by an attorney on behalf of a client, and support petitions by the Department of Social Services on its own motion.

Allowing the department to file motions with the clerk does not mean that an employee rather than a lawyer can do so, Bauserman said.

One case permitting

In what is apparently the only circuit court ruling on the point; Judge William D. Broadhurst of Roanoke interpreted the statute in September 2006 to allow employees to file pleadings on behalf of the department. Because an attorney can file pleadings under the exception that allows any attorney to file directly with the clerk, the special provision for the department would be superfluous if it needed an attorney as well, Broadhurst wrote in Commonwealth ex rel. Brazell v. Doss (VLW 007-8-274).

Bauserman is unpersuaded and says having laymen rather than lawyers investigate the basis for a pleading can have real consequences.

He cited as an example the year-long incarceration of a father on what he contends was an outdated administrative order from the department. After the mother obtained an administrative support order, the father went to court and won custody of the child. The father then obtained an amended administrative order eliminating any future support obligation and noting arrearages of less than 12 weeks.

A few months later, the mother regained custody but Bauserman contends that the amended support order was never withdrawn nor changed. Nevertheless, years later, DCSE sought and obtained a contempt citation based on the original order. Bauserman contends that a lawyer was more likely to have caught that error than a layman.

The father's attorney did not raise the issue at the contempt proceeding, and the judge ordered him to jail. The father could not appeal because he could not post a bond to cover the arrearages that the judge found to have accrued.

"On the face of it, this is not a popular group of litigants," Bauserman acknowledges.

But the law specifies that the signature of an attorney on a pleading certifies that he believes its contents to be well-ground in law and fact. When a non-lawyer is allowed to sign a pleading, no one is accountable—ethically or otherwise—for an inadequate investigation, he said.

Burshem, the DCSE attorney, said Bauserman's position is "strictly an ethical argument. … Nobody is making an allegation that the substantive law has been violated."

Bauserman responds that the law still is being violated, and "we don't get to pick and choose which laws we can follow."

Burshem said DCSE has several options to address the complaints of Bauserman and Briggman, including seeking legislation or a Supreme Court rule change to allow staff members to sign such pleadings. No decision has been made on what approach to take, he said.

 

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Contempt motion on support issue must be signed by a lawyer

Judge: Contempt motion on support issue must be signed by a lawyer
Staff members of the Virginia Division of Child Support Enforcement no longer are signing motions to hold in contempt parents who are delinquent in their support obligations. The decision to abandon the practice was made after a juvenile and domestic relations district judge in Fairfax County ruled that Virginia Code Sect. 8.01.271.1 requires such pleadings to be signed by an attorney.
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