Best Practices Automated Review for Modification Actions and

Best Practices: Automated Review for Modification Actions and New Legal Approaches Amanda Chew, Manatee Clerk of Court (Florida) Patterson Poulson Florida Department of Revenue Laura Bernacki Stafford, Porter County Prosecuting Attorney’s Office (Indiana) ERICSA 50 th Annual Training Conference & Exposition ▪ May 19 – 23 ▪ Hilton Orlando Lake Buena Vista, Florida

Workshop Goals • Learn about how Florida used automation to improve review for modification processing • Review Florida’s companion expedited modification law • Review approaches to managing modification requests of inmates • Discuss existence of conflict of interest in downward modification actions

Automated Review for Modification • Florida implemented a new child support system in 2012 • Redesigned approach for Review for Modification • Used automation to great advantage

Previous Design • User manually determined eligibility • Requests for financial information sent to requester and non-requester at same time • If requester did not respond, but nonrequester did, non-requester provided opportunity to continue review • After initial review was complete, parties to contest and request a second review

Previous Design • If change was warranted, the modification process, judicial or administrative, rerequested financial information and then guidelines were recalculated • Time frames associated with the review process were automated and forms were generated from the system

Use of Bar-coded Documents • Request forms generated from system, barcoded to identify case and requester information • Upon return, system automatically creates Review for Modification activity identifying which party requested the review

Use of Bar-coded Documents • Subsequent financial information request documents are barcoded to the Review activity • When barcoded document received, system automatically sets appropriate activity statues based on what document was returned.

Review Eligibility Determination • System performs automated eligibility checks; tasks worker only if necessary data not available • If review request determine to not be eligible, system notifies the requester and terminates the review activity.

Initiating Interstate Review Requests and CEJ • System determines which state has continuing exclusive jurisdiction (CEJ) over the parties • If Florida or Florida can assume CEJ system continues review activity • If another state has CEJ or should assume CEJ, system automatically initiates follow-on Interstate activity

Requesting Financial Information • System generates financial document request to requesting party • Tracks response timeframe • No response, terminates review and notifies requester • If documents returned within required timeframe, system generates financial document request to nonrequesting party

Requesting Financial Information • System determines which financial documents to sent to the parties (administrative vs judicial orders) • System tasks user to calculate new guideline amount based on data provided by parties and obtained through independent means

Change Warranted? • System compares new guideline amount to existing obligation information on system • System identifies if change to support order is warranted

Determination of Substantial Change • Florida has statutory criteria that determine if modification of the order is warranted, based on the amount of time since the order was last modified or a review was completed

Determination of Substantial Change • Within three years – change must equal 15% of existing obligation or $50, whichever is greater • More than three years – change must be at least $25 and at least 10% of existing obligation

Results and Next Actions • System sends results notices to parties • System automatically initiates required followon activities to modify administrative or judicial orders

Administrative Modification • Proposed administrative modification order with new amounts sent to parties as notice of the completion of the review process

Streamlined Judicial Modification Process • Department sought authority for a new judicial modification process that complements the automated review process • Expedited Modification Process Based upon the IV-D Department Review Process

Florida’s Streamlined Modification Process Florida Statute 409. 2564 discusses how to pursue actions for support in Florida. It also details the new expedited modification process where DOR can enter a modification order without a court hearing after determining a modification is warranted and noticing both parties.

Qualifications 1. Request by party or DOR review 2. Compile financial information 3. Run Guidelines to determine if a modification is warranted 4. If warranted, prepare all required documents 5. Serve/Mail documents 6. 30 day objection period or order is signed without a hearing

Modifications Included 1. DOR three year review modifications 2. Three year review requested by parties 3. Modifications for change in circumstance

Modifications Not Included 1. Add-a-baby modifications 2. Modifications when children leave the household 3. Modifications where one child has emancipated 4. Change of payees

Documentation Required 1. Child Support Guidelines 2. Financial Affidavit or Written Declaration from DOR 3. Proposed Modified Order 4. Notice that informs parties of the requirement to file an objection to request a hearing.

Pros/Cons • Pros: There have been minimal objections to the proposed orders and only a handful of parties have hired counsel to object to the proposed orders. Judges are receptive to this new process. • Cons: Paperwork intensive prior to filing.

Questions/Comments

Modification and Incarceration • Three General Approaches – No justification (most common) • Incarceration is insufficient to abate support – One Factor Rule • Court should consider the fact of incarceration with other factors to determine if support should be modified – Complete Justification (our focus) • Incarceration IS SUFFICIENT to abate support

Indiana Law • Lambert v Lambert, 861 NE 2 d 1176 (2007 Ind) – Statutory Interpretation • Modification should be based upon actual, present ability to pay • Incarceration is a sufficient non-voluntary change in income • Choice to commit crime is not done to avoid having income or pay child support

Indiana Law • Lambert v Lambert, 861 NE 2 d 1176 (2007 Ind) – Sociological Reasoning • Child support order while incarcerated is unreasonable and only leads to failure to pay • Child support and high arrears leads to barriers to reentry and more avoidance of paying • Statistically more likely to deprive the child of support in the long term if arrears are high

Indiana Law • Lambert v Lambert, 861 NE 2 d 1176 (2007 Ind) – Other provisions • Courts can look at actual income* – Such as rental properties, savings, trust accounts – *we don’t generally count prison income but do add a frequency on arrears and send out IWO (some accountability, IDOC has requested it) • Prospectively order child support – “child support shall return to $xx/week commencing the fourth Friday after release”

Indiana Law • Becker v. Becker, 902 NE 2 d 818 (2009 Ind) – Modification is retroactive only to date of filing of petition (standard Ind rule), not date of incarceration – Those incarcerated during the Lambert decisiondate Lambert (2/22/07) was decided or after, not before even if modification petition was filed

Indiana Law • Douglas v State and IFSSA, 954 NE 2 d 1090 (2011 Ind App) – Incarcerated on Class C felony of non-support – Argument- choice to commit crime of nonpayment is voluntarily avoiding paying child support – Holding- still unable to pay if incarcerated and all social factors still apply – Court declined to create an exception**

Other States • Approximately 7 -8 states total have a complete justification approach • Indiana, California, Maryland, Michigan, Minnesota, Oregon, Washington • General Holding- person is not voluntarily impoverished, therefore cannot be imputed income for modification

Other States – **most of these States DO have an exception for criminal non-support (no auto mod) – Interesting statements and arguments • California- cannot impute income to someone who has no earning capacity- no different than when originally establishing an order • Maryland- incarceration is a material change in circumstances- not voluntarily impoverished unless committed crime with intent of going to prison!!!

Other States • Washington- income cannot be imputed because prisoner is not employable • Minnesota- State argued that prisoner was provided room and board by the prison and therefore that should be included as imputed income- (Court of Appeals didn’t buy it) • Oregon- Court can consider assets of the individual

Other States • Florida’s Approach to Laws regarding Incarcerated Modifications (DOR v. Jackson/DOR v. Tillery)

Other Modification Considerations • Is seeking a downward modification in a Title IV-D case considered a conflict of interest?