Expert answer:lST205 America Public University The State v Crimi

  

Solved by verified expert:You are a paralegal working in Plentibux & Moore, a small Boise, Idaho law firm that specializes in white-collar criminal defense and represents a high profile Defendant named Ima Criminal. The senior partner in the firm, Bob Plentibux, calls you in to his office and tells you that he has a hot issue for you to research. The United States Attorney, Dirk Lynch, has indicated that he intends to call the firm’s best paralegal and your co-worker, Jack Starr, as a witness in a case against the firm’s client, Mr. Criminal. Jack has been involved in witness interviews, case research, and document review in preparation for the case. Mr. Plentibux is concerned about what they can make Jack say and wants to know what the limits of paralegal confidentiality are in Idaho. He tells you to look at the Idaho Rules of Professional Conduct to answer the question.Be sure to cite your sources using proper Bluebook format. Your Memo should not exceed 3 pages, single-spaced. Don’t forget to use the format assigned by your professor. You will use 1″ margins, in Times New Roman 12pt font. Please see the attached Sample for how to structure your Memo. Office Memo Rubric:Statement of Assignment: 5/5Issue: 10/10Brief Answer: 10/10Facts: 10/10Analysis: 25/25Conclusion: 10/10Recommendations: 10/10Format: 10/10Writing: 10/10
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MEMORANDUM
To:
Supervisory Attorney
From: Student Name & Number
RE: Eldridge v. Eldridge, Modification of child support
STATEMENT OF ASSIGNMENT
I have been assigned the task of preparing a memo addressing the question of whether the trial
Court acted properly when it excused Mr. Eldridge from paying “back” child support in the
amount of $3,500.
ISSUE
In light of the provisions of Indiana Code § 31-2-11-12, which governs the modification of
delinquent child support payments, may a court retroactively modify a duty to pay delinquent
child support payments based upon the fact that the obligor was unemployed during the months
the obligations accrued?
BRIEF ANSWER
No. In the case of Cardwell v. Gwaltney, the Indiana Court of Appeals ruled that under
Section 31-2-11-12, a court may not retroactively modify a support obligation; any modification
must act prospectively.
FACTS
Mr. and Mrs. Eldridge were divorced in 2010. In the divorce, Mr. Eldridge was ordered to make
child support payments in the amount of $700 per month. Mr. Eldridge was unemployed from
January through October of 2011. He did not make child support payments during this ten-month
period. The child support payments he failed to make totaled $7,000.
In January of 2012, Mrs. Eldridge filed a motion with the Court seeking an order directing Mr.
Eldridge to pay the $7,000 due in delinquent support payments. Mr. Eldridge responded with a
petition to modify his child support obligation. In the petition, he requested that he be excused
from having to pay the support obligations that accrued during the ten months he was
unemployed. The Court ordered Mr. Eldridge to pay $3,500, one-half of the amount due. It
excused him from paying the remaining $3,500. The Court stated that Mr. Eldridge was excused
from paying the full amount, because he was unemployed during the months the child support
accrued.
ANALYSIS
The Court acted improperly when it excused Mr. Eldridge from paying “back” child support in
the amount of $3,500. Indiana Code § 31-2-11-12 governs the modification of delinquent child
support obligations. Section 31-2-11-12 provides:
(a) Except as provided in subsection (b), a Court may not retroactively modify an
obligor’s duty to pay a delinquent support payment.
(b) A court with jurisdiction over a support order may modify an obligor’s duty to (pay a
support payment that becomes due:
(1) After notice of a petition to modify the support order has been given to each
obligee; and
(2) Before a final order concerning the petition for modification is entered.
The statute clearly indicates that a court may not retroactively modify an obligor’s duty to pay a
delinquent support obligation.
The Indiana courts have also ruled that a court may not retroactively modify a duty to pay a
delinquent support obligation even if the obligor did not have the means to pay when the
obligation accrued. In the case of Cardwell v. Gwaltney, 556 N.E.2d 953 (Ind. Ct. App. 1990),
Mr. Gwaltney filed a petition requesting that he be absolved from paying the support obligations
that accrued during the year he was in prison. id. He had reached an agreement with his former
wife that excused him from paying the support for that year. id. The trial Court approved the
agreement. id. The agreement was opposed by the county attorney because Mr. Gwaltney’s
former spouse, Ms. Cardwell, had been the recipient of AFDC funds and had assigned her
support rights. id. On appeal, the Court concluded that the trial Court erred in retroactively
excusing the support obligation that accrued during the time Gwaltney was incarcerated. id. The
Court stated, “[e]ven though the trial judge was prompted by equitable concerns when Gwaltney
was excused from paying support, the law is that any modification of a support order must act
prospectively.” Id. at 954.
The key facts in our case are substantially the same as those in Cardwell v. Gwaltney. In both
cases, there were delinquent child support obligations that the obligor did not have the means to
pay when they accrued, and the trial Court’s order retroactively reduced the obligation. In
applying the Cardwell Court’s interpretation of Section 31-2-11-12 to our facts, it appears that
the trial Court erred in reducing Mr. Eldridge’s delinquent child support obligation. The trial
Court’s ruling retroactively modified a delinquent obligation, and under Cardwell, any
modification under the statute must act prospectively, not retroactively.
It does not appear that there is any viable counterargument to the analysis presented above. The
statutory and case law clearly does not allow retroactive modification of delinquent child support
obligations. The argument may be made that the Court should reconsider the Cardwell ruling and
interpret the statute to allow an exception when the obligor, through no fault of his own, was
financially unable to pay the support payment when it became due. In Cardwell, the Court
seemed to anticipate this argument when it referred to the commentary to Ind. Child Support
Guideline 2:
An obligor cannot be held in contempt for failure to pay support when he does
not have the means to pay, but the obligation accrues and serves as a
reimbursement to the custodial parent, or, more likely, to the welfare department
if he later acquires the ability to meet his obligation.
id. Therefore, based on the foregoing analysis, the trial Court acted improperly when it excused
Mr. Eldridge from paying “back” child support in the amount of $3,500.
CONCLUSION
The Court acted improperly when it excused Mr. Eldridge from paying “back” child support in
the amount of $3,500. Indiana Code § 31-2-11-12 prohibits the retroactive modification of a
delinquent child support obligation. Furthermore, in the case of Cardwell v. Gwaltney, the
Indiana Court of Appeals held that any modification under the statute must act prospectively, not
retroactively. 556 N.E.2d at 954. The Court’s modification of Mr. Eldridge’s delinquent child
support obligation acted retroactively and is therefore in violation of Indiana law. Thus, the
Court’s ruling could be appealed.
RECOMMENDATIONS
The ruling in Cardwell is from the Indiana Court of Appeals. Additional research should be
conducted to determine if the Indiana Supreme Court has addressed this or related questions.
Mrs. Eldridge may wish to file an appeal to request that she be paid the other $3,500. We should
look into timing issues, so that she does not miss the deadline.

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