Slow Magistrate - Arrearage calculation question

[hoosierpapa4]

Soc, Indiana, Order of Judgement from the Court dated October xx, 2005 states:

"Child Support Arrearage- In light of the Court's determination regarding the recalculation of the Petitioner's weekly child support obligation, the parties are ordered to submit proposed child support arrearage calculations by November xx, 2005.  The Court's ruling on the issue of the amount of the Petitioner's child support arrearage obligation, if any, is deferred pending receipt of the parties proposed arrearage calculations."

We submitted our calculations on November xx, 2004 (one day prior to the deadline), Respondent did not submit a proposed calculation, ask for an extension of time or for that matter file anything.  The Judges in Indiana were all in an "educational opportunity" presented by the Attorney General of the State of Indiana, pro-tem judges were in place during the last month of the year to fill in for the judges that were getting educated.  There is a negative arrearage of over $8000 that is owed by Respondent (overpayment by Petitioner - me).

No Pro-Tem judge ever picked this up, no Magistrate or Judge has ruled on this.  From what my attorney states, this is not a matter that can be ignored and ruled as denied due to an inaction from the Court.

The magistrates calculations will be the same as Petitioners (it's just math and dates).


1) What if anything can we do to petition the Court to make it's ruling in this case outside of asking for a special judge to rule upon it (more $s)?

2) Can I move the Prosecuting attorneys office to intercept Respondents tax return due to the non-payment of the negative arrearage amount that is nearing the Felony level in Indiana?

Thanks in advance Soc...

[socrateaser]

>1) What if anything can we do to petition the Court to make
>it's ruling in this case outside of asking for a special judge
>to rule upon it (more $s)?

Find out who the chief judge for the county is, and write him and ask for a resolution of the issue. Copy the other party on the letter and the judge in your case. Don't be adversarial. Just ask why the case has not been resolved and what if anything can be done to obtain a final judgment on the matter.

If that fails, then your only option is a peremptory writ of mandamus filed with he State Supreme Court, requesting that the judge in the case be ordered to appear and show cause as to why he has not ruled on the issue.

>
>2) Can I move the Prosecuting attorneys office to intercept
>Respondents tax return due to the non-payment of the negative
>arrearage amount that is nearing the Felony level in Indiana?

The DA is not a court, so you can't move them. You can independently file for a tax intercept with the IRS, assuming that thsi action wouldn't violate your current court orders. If there's no conflickt, then the IRS is above the state court on such issues, and as long as you can satisfy the IRS regulation requirments, then the IRS will intercept any refund due.

Of course, a smark payor parent, will make sure that his/her taxes are always owing, so that there's never a refund available for intercept. But, I don't know how smart this particular payor parent is, so maybe you can get some of the dough from the feds -- worth a shot.

[hoosierpapa4]

I went to the courthouse today to see if I could get a copy of a few of the orders that are within the folder.  No one can find the folder, I was told that it was here, then there, then nowhere.

My attorney tells me that without the folder to place the request for status hearing to get this matter heard, they will not even accept the pleading.

1) Given that the folder is missing, is the plan that you mentioned above changed at all?

2) What do I do if the folder is NEVER found?   Are there remedies?

Thanks again Soc.

[socrateaser]

>1) Given that the folder is missing, is the plan that you
>mentioned above changed at all?

Not as far as writing the chief judge. You're just asking for him/her to add "find the folder" to the list of issues.

>
>2) What do I do if the folder is NEVER found?   Are there
>remedies?

If the folder is actually irrecoverable, then the attorneys and the court would need to get together and attempt to agree to a "settlement statement," that lays out what everyone believs took place and was to be ordered. If you can't get to an agreement, then you'll either have to try the settlement or start your entire case over from scratch.

Due Process requires a ruling based on the facts made "on the record," so if there's no record, then there's no ruling. Ick!

[hoosierpapa4]

The original orders from the court were dated in October, they ordered us to provide to the court our arrearage calculations, in November we responded.  By December, we started to wonder why there was no final order from the court.  A little research with the clerks office showed that the file where all orders etc. are filed was missing.  Finally, today, the folder was found.  No other motions or filings would be accepted without the file folder (or record of the court), now four months after the court should have provided it's final order, we have just found the folder.

1) With this amount of time lapsing between when the court ordered us to respond, us responding, and the final order not being written because of the lack of the folder, are the normal timeframes for responding waived?

2) The other party never did file a response to the order from the court on the arrearage calculation leaving only my attorneys response on file (in November, file was lost in December), without the other parties ever bothering to file a response in a timely manner, is their lack of response...their response?

TIA

[socrateaser]

>1) With this amount of time lapsing between when the court
>ordered us to respond, us responding, and the final order not
>being written because of the lack of the folder, are the
>normal timeframes for responding waived?

The court will "toll" (suspend) the time between the loss and discovery of the file, i.e., that time will not be used to calculate any deadline.

>2) The other party never did file a response to the order from
>the court on the arrearage calculation leaving only my
>attorneys response on file (in November, file was lost in
>December), without the other parties ever bothering to file a
>response in a timely manner, is their lack of response...their
>response?

Your attorney should request that the court set the matter for hearing and make a final order.