Family Law Case Review: Child Support, FCSPA & QDRO
posted May 30, 2013 by ICLEF
Case: Jill Finfrock a/k/a Jill Bastone v. Mark Finfrock
by Mike Kohlhaas, Bingham Greenebaum Doll
HELD: The efforts of Mother’s counsel to collect a child support arrearage did not fall under the umbrella of the federal Fair Debt Collection Practices Act (FDCPA) and, thus, the trial court’s award of fees to Father based upon a perceived violation of the FDCPA was error.
HELD: While the entry of a QDRO may be a tool available to the trial court to assist in the collection of a child support arrearage, it is not mandatory that the trial court do so. Here, the trial court acted within its discretion by not issuing the QDRO requested by Mother to garnish Father’s 403(b) retirement to satisfy Father’s child support arrearage.
NOTE: A footnote in the Court of Appeals’ opinion suggests that an attorney working on a contingency fee basis to collect a child support arrearage, even one reduced to a judgment, may be unethical pursuant to the general prohibition against an attorney acquiring “a contingent financial interest in any aspect of the divorce proceeding.”
FACTS AND PROCEDURAL HISTORY:
Mother and Father were divorced in 1994, pursuant to which Father was ordered to pay Mother child support of $161 per week for their two children. Father paid for just over 6 months, but then lost his job. Father never resumed paying, and each of the parties went on to new spouses and new lives. Mother never filed a contempt against Father, and they had no further contact.
In 2011, sixteen years after Father stopped paying child support, Father was contacted by National Child Support, a child support collection firm in Ohio. Father was told that Mother wanted the entire arrearage, plus interest, and if not paid, a contempt would be filed against Father with a request for a host of unpleasant remedies. Days later, both parties appeared in the trial court by counsel and filed motions to reduce the arrearage to judgment. The parties subsequently reached a settlement agreement, the key points of which were: (a) Father’s arrearage was $135,856; and (b) Father would pay $280 per week by income withholding order towards the arrearage judgment. Father began making payments shortly thereafter via the withholding order, and never missed a payment thereafter.
Nevertheless, Mother’s counsel then filed proceedings supplemental to look for non-exempt assets of Father to satisfy the judgment further. In the course of related discovery, Mother learned that Father had a 403(b) retirement account with a balance of $36,000. Prior to the proceeding supplemental hearing, Mother’s counsel delivered to the trial court a QDRO to garnish Father’s 403(b), but never delivered a service copy of same upon Father’s counsel. The trial court, assuming the QDRO had been reached by agreement, signed and issued it.
Upon learning of the QDRO, Father was able to file a successful emergency motion to set aside the QDRO before funds had been transferred. Father also requested sanctions and fees against Mother’s counsel. After a hearing, the trial court denied Mother’s motion to re-issue the QDRO, and ordered Mother’s attorney to pay $1,645 in fees to Father, based upon the submission of the QDRO without service to Father’s counsel being a violation of the FDCPA. Mother appealed.
The trial court’s award of fees to Father was, based upon the trial court’s findings, premised upon a violation of the FDCPA by “surreptitiously filing an unsolicited order” when the QDRO was submitted without service. The Court of Appeals’ review of the FDCPA concluded that the Act pertains to the collection of consumer and similar debts, not child support arrearages. Thus, the Court of Appeals reversed the award of fees because they were premised upon an inapplicable FDCPA violation.
In terms of the trial court’s denial of Mother’s request for a QDRO to garnish Father’s 403(b) account, the Court of Appeals noted that, while a QDRO may be a remedy to collect a child support arrearage, the trial court is not necessarily required to issue one. The Court noted that Mother had agreed to receive $280 per week to satisfy the arrearage, and that Father had maintained a perfect track record of paying that amount after the agreement. Further, while payments at this amount would take Father nine years to pay off the arrearage, the weekly payment constituted about half of his income. Thus, in light of the circumstances, the trial court’s decision to deny Mother’s requested garnishment QDRO was not error.
The matter was reversed, in part, as to the attorney fee award, and remanded. The Court of Appeals opinion appeared to leave open that, on remand, the trial court could issue an attorney fee award in Father’s favor based upon factors, if applicable, other than the FDCPA violation cited by the trial court originally.
To view the text of this opinion in its entirety, click here: Jill Finfrock a/k/a Jill Bastone v. Mark Finfrock
While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.
The Matrimonial Law Group of Bingham Greenebaum Doll, LLP is one of the largest full-service matrimonial and family law practices in the State of Indiana. We represent clients in a wide spectrum of family law matters, including premarital agreements, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.
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