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January 6th, 2012 by Robert Franklin, Esq.
When the Office of Child Support Enforcement tells us that 63% of those behind on paying their support obligations are the poorest of the poor – those who report earnings of less than $10,000 – it comes as no surprise.  Of course it’s the poor who fall behind and who can’t afford a lawyer to go to court to try to modify the order.  In fact, that’s so much to be expected that it’s a surprise when the guy fighting for his life was once pretty well off and who has the education to fight the system.

That looks to be the case described in OC Judge Reversed For Cruel Treatment of Ex-Husband in Child Support Case (OC Weekly, 12/30/11).

It seems that James Lockington was doing fairly well for himself before the housing bubble burst.  He was a home-building executive in California who, when his divorce was finalized, was making almost $15,000 a month.  That’s not fabulous wealth, but it’s a good income.  His ex-wife Tricia was bringing in about half that, so his monthly child support obligation was set at $2,074.  Fair enough.

But the housing bubble popped and it blew up Lockington’s livelihood in the process.  By the time he got to court to request a modification, he was hauling in a grand total of $300 a month.  He’d sold his house at a loss, maxxed out his credit cards, and was living with his sister to avoid becoming homeless.

Now, in case you’re weak in math, you can’t pay $2,074 a month with earnings of $300 a month.  But neither Tricia nor Superior Court Judge Ronald Kreber cared about that.  They cared about money.  Specifically, they cared about squeezing as much money out of James Lockington as possible, reality be damned.

Showing no sympathy, Tricia said her ex-husband should get multiple jobs at places like Starbucks or Target to continue to supply her the money. She also accused him of a pornography addiction, according to court records.

During an August 2010 hearing about Lockington’s request, Kreber acknowledged the man’s dire financial shape, but stated he thinks “the children are entitled to the same lifestyle that they had before.”

He told the man to get a job a Starbucks and didn’t care that he’d strenuously tried to get another high-paying job.

Kreber added that he didn’t think it would be “right” to calculate into the child support equation the fact that Lockington had lost his income.

Of course working 40 hours a week at Starbucks wouldn’t have gotten Lockington anywhere near the magic number of $2,074, but apparently Kreber didn’t think of that.  No, Judge Kreber’s attitude is the one so common in child support cases.  That attitude is that under no circumstances must the children’s lifestyles be altered in the slightest, regardless of what may be happening in the world at large.  So if non-custodial Dad gets injured on the job and can’t work, he has to figure out a way to keep paying.  If he loses his job and can’t find another, well, the children can’t be made to feel the change even slightly.

Needless to say, if Dad and Mom were still married and one of them were laid off, the family’s income would drop and all belts, including the children’s, would be tightened.  It’s a common occurrence that children deal with successfully.  But let Mom and Dad divorce and all of a sudden the rules change.  More importantly our notions of what children can and can’t handle change as well.  Once the divorce decree is signed, the children become fragile beings whose every need must be met the same way as when their parents were married.

Such, at any rate, is the strange notion of many family court judges – judges like Ronald Kreber.

Well, it took almost two years, but a California appellate court explained the basics to Kreber.

Lockington appealed the ruling and, in a 15-page, Dec. 27 decision, a California Court of Appeal based in Santa Ana determined that Judge Kreber “abused his discretion” by relying on an “erroneous” understanding of the law.

Yes, it seems there are limits to a family judge’s power to abuse a noncustodial father.  Who knew?

“A trial court must evaluate a request to modify child support based on the parent’s current financial circumstances, not the financial circumstances that existed during the marriage,” wrote Justice Richard Aronson on behalf of a three-justice panel that included justices William Bedsworth and Kathleen O’Leary. “The court cannot require James to pay an amount in child support he clearly has no ability to pay.”

As it turns out, that’s a concept the Office of Child Support Enforcement has been trying to get family courts to heed for many years now.  The OCSE has encouraged judges to pay attention to the basic idea, “don’t order more than the non-custodial parent can pay,”  but the federal government encourages the opposite.  Because it pays states for child support collected, the obvious reaction is to order child support levels as high as possible.  After all, if you don’t order it, he certainly won’t pay it and if you do, maybe he will.

I’m sure Kreber understood the law perfectly well; he was just doing his part to get as much money from Washington for the Golden State as possible, and what matter if a few fathers get driven into the street as a consequence?

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