Archive for March, 2009
Mystic Lake
Friday, March 27th, 2009Child Support for Disabled Adult Children
Thursday, March 26th, 2009In Re Marriage of Clapsaddle, 2009 MT 91N decided March 24, 2009, concerns the limits of withholding. These two pro se parents had 2 children, one of whom was a disabled adult. The trial court granted mom’s motion to withhold child support from dad’s income. Dad had past due support. The trial court imposed a child support withholding order. The amount withheld was limited by the court relying upon 40-5-309(3). Mom argued they should have applied 40-5-416 to establish limits on withholding. The Supreme court affirmed the trial court’s reliance on 40-5-309 saying that was a statute for courts and 40-5-416 was limited to actions before the Montana Child Support Enforcement Division (CSED).
The more interesting thing about the case, however, was that the child support for 2 children included support for a child who was an adult but disabled. Neither parent raised child support for an adult as an issue.
The term “”child”" is not defined in our basic child support statute, 40-4-204 MCA. However, the term is defined in 40-5-201 (2) which reads:
(2) (a) “”Child”" means:
(i) a person under 18 years of age who is not otherwise emancipated, self-supporting, married, or a member of the armed forces of the United States;
(ii) a person under 19 years of age and still in high school;
(iii) a person who is mentally or physically incapacitated if the incapacity began prior to the person’s 18th birthday; or
(iv) in a IV-D case, a person for whom:
(A) support rights are assigned under 53-2-613;
(B) a public assistance payment has been made;
(C) the department is providing support enforcement services under 40-5-203; or
(D) the department has received a referral for IV-D services from an agency of another state or an Indian tribe under the provisions of the Uniform Interstate Family Support Act, the Revised Uniform Reciprocal Enforcement of Support Act, the Uniform Reciprocal Enforcement of Support Act, or Title IV-D of the Social Security Act.
(b) The term may not be construed to limit the ability of the department to enforce a support order according to its terms when the order provides for support to extend beyond the child’s 18th birthday. ”
Typically we think of the term of child support being limited to the 19th birthday of a child if they are still enrolled in high school, relying on the support modification provisions of 40-4-208(5). But you might consider longer term child support if you encounter a case involving a disabled child.
Pilot Peak
Tuesday, March 24th, 2009
Using Initials for Parents’ Names
Monday, March 23rd, 2009In two recent cases, a parenting plan case and a divorce case with children, the Montana Supreme Court has required the parties to replace the parents’ names with initials. In Re the Marriage of R.M. and M.M. 2009 MT 52N the Court refused to allow the Appellant’s brief to be filed until the Appellant substituted initials for the names of the parents. Section 4.50 (c)(3) of the Rules for Privacy and Public Access to Court Records in Montana (”Access Rules”) requires children’s names to be redacted from published court records. But there is no mention in the Access Rules of redacting the names of any adults. In its Order issued August 11, 2008 sending the Appellant’s brief back, the Court acknowledged this, but declared “… we realize that the Rules do not require the names of the adult parties to be protected from public access; however, in order to fully comply with Section 4.50(c)(3), it is generally necessary that initials be used in place of the parents’ names as well.”
Further checking confirmed that the Court had returned an Appellee’s Brief in a parenting plan case as well. In Re the Parenting of K.A.R., a Minor, D.R., A.R. and J.M.R., Petitioners and Appellees, and D.E.R. Respondent and Appellant, 2009 MT 73N, decided March 11, 2009, the Court issued its Order returning the Appellee’s brief on July 9, 2008.
Deleting parents names in divorces and parenting plan actions will protect the identities of the children. And I am grateful the Court is obviously taking pains to protect the privacy of our most vulnerable citizens. But this new policy will create other practical problems for the litigants. For one, title companies will find it difficult to independently run title on the homes of the litigants.
Grandparents Prevail Over Long Absent Father
Saturday, March 14th, 2009In 1996, Mom has a child in Louisiana with Dad. Dad does not know she was pregnant and does not know he is a father. Mom relinquishes custody in Louisiana to her parents, the maternal grandparents. Louisiana court issues order transferring custody to grandparents. Then grandparents, mom and child all move to Montana. In 2006, 10 years after the child’s birth, the grandparents apply for medicaid benefits for the child. Dad is contacted and child support ordered. Dad seeks custody in parenting plan proceedings now in Montana. District Court refuses to grant dad custody, ordering instead a plan that gradually introduces him to the child with supervised visits initially and then a mental health professional to monitor how that is going with the anticipation that dad will first move on to unsupervised visits in Montana and later visits in Louisiana where he still resides. Dad appealed both on the basis of inadequate findings to support the trial court rulings and on constitutional grounds. The Supreme Court affirmed the trial court stating that the findings were sufficient and stating that the appellant had failed to file a motion and brief preserving the constitutional issue on appeal. The case is In Re Parenting of K.A.R. 2009 MT 73N.
Making Arguments By Reference
Friday, March 13th, 2009If you really wish to create a terrible impression with the Montana Supreme Court, don’t bother to make your arguments in your brief, simply tell the Court to read what you wrote in your trial court briefs. In State v. Cybulski 2009 MT 70, the appellate did that. The Supreme Court’s reaction was simply scathing.
