No. 94S00-0901-MS-4 (Ind. Sep. 15, 2009)

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Order Amending Rules of Evidence, 94S00-0901-MS-4 (Ind. 9-15-2009)

Supreme Court of Indiana

Sep 15, 2009

No. 94S00-0901-MS-4 (Ind. Sep. 15, 2009)

Opinion

No. 94S00-0901-MS-4.

September 15, 2009.

ORDER AMENDING INDIANA RULES OF EVIDENCE

RANDALL T. SHEPARD, Chief Justice of Indiana.

Under the authority vested in this Court to provide by rule for the procedure employed in all courts of this state and this Court's inherent authority to supervise the administration of all courts of this state, Indiana Evidence Rule 201 is amended to read as follows (deletions shown by ~~striking~~ and new text shown by underlining):

. . .

Rule 201. Judicial Notice

(a) Kinds of Facts. A court may take judicial notice of a fact. A judicially-noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(b) Kinds of Laws. A court may take judicial notice of law. Law includes (1) the decisional, constitutional, and public statutory law, (2) rules of court, (3) published regulations of governmental agencies, (4) codified ordinances of municipalities, (5) records of a court of this state, and (5 6) laws of other governmental subdivisions of the United States or of any state, territory or other jurisdiction of the United States.

(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to Be Heard. A party is entitled, upon timely request, to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.

(g) Instructing the Jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

These amendments shall take effect January 1, 2010.

The Clerk of this Court is directed to forward a copy of this Order to the clerk of each circuit court in the state of Indiana; Attorney General of Indiana; Legislative Services Agency and its Office of Code Revision; Administrator, Indiana Supreme Court; Administrator, Indiana Court of Appeals; Administrator, Indiana Tax Court; Public Defender of Indiana; Prosecuting Attorney's Council; Public Defender's Council; Indiana Supreme Court Disciplinary Commission; Indiana Supreme Court Commission for Continuing Legal Education; Indiana Board of Law Examiners; Indiana Judicial Center; Division of State Court Administration; Indiana Judges and Lawyers Assistance Program; the libraries of all law schools in this state; the Michie Company; and Thomson Reuters.

Thomson Reuters is directed to publish this Order in the advance sheets of this Court.

The Clerks of the Circuit Courts are directed to bring this Order to the attention of all judges within their respective counties and to post this Order for examination by the Bar and general public.

DONE at Indianapolis, Indiana, this 15^th day of September, 2009.

All Justices concur.

ORDER AMENDING INDIANA RULES OF TRIAL PROCEDURE

Under the authority vested in this Court to provide by rule for the procedure employed in all courts of this state and this Court's inherent authority to supervise the administration of all courts of this state, Trial Rules 3.1, 43, and 79 are amended to read as follows (deletions shown by ~~striking~~ and new text shown by underlining):

. . .

Rule 3.1 Appearance

(A) Initiating party. At the time an action is commenced, the party initiating the proceeding shall file with the clerk of the court an appearance form setting forth the following information:

(1) Name, address and telephone number of the initiating party or parties filing the appearance form;

(2) Name, address, attorney number, telephone number, FAX number, and e-mail address of any attorney representing the party, as applicable;

(3) The case type of the proceeding [Administrative Rule 8(B)(3)];

(4) A statement that the party will or will not accept service by FAX;

(5) In domestic relations, Uniform Reciprocal Enforcement of Support (URESA), paternity, delinquency, Child in Need of Services (CHINS), guardianship, and any other proceedings in which support may be an issue, the Social Security Identification Number of all family members;

(6) The caption and case number of all related cases;

(7) Such additional matters specified by state or local rule required to maintain the information management system employed by the court; ~~and~~

(8) In a proceeding involving a protection from abuse order, a workplace violence restraining order, or a no-contact order, the initiating party shall provide to the clerk a public mailing address for purposes of legal service. The initiating party may use the Attorney General Address Confidentiality program established by statute.; and (9) In a proceeding involving a mental health commitment, except 72 hour emergency detentions, the initiating party shall provide the full name of the person with respect to whom commitment is sought and the person's state of residence. In addition, the initiating party shall provide at least one of the following identifiers for the person:

(a) Date of birth;

(b) Social Security Number;

(c) Driver's license number with state of issue and date of expiration;

(d) Department of Correction number:

(e) State ID number with state of issue and date of expiration; or

(f) FBI number.

(B) Responding parties. At the time the responding party or parties first appears in a case, such party or parties shall file an appearance form setting forth the information set out in Section (A) above.

. . .

Rule 43. Evidence

(A) Form and admissibility. In all trials the testimony of witnesses shall be taken in open court, unless state law, these rules, the Indiana Rules of Evidence, or other rules adopted by the Indiana Supreme Court provide otherwise.

(B) Evidence on motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

(C) Interpreters. The court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court. Application of this rule shall be in compliance with the Americans with Disabilities Act.

(D) How evidence is presented. The trial shall proceed in the following order, unless the court within its discretion, otherwise directs: First, the party upon whom rests the burden of the issues may briefly state his case and the evidence by which he expects to sustain it. Second, the adverse party may then briefly state his defense and the evidence he expects to offer in support of it. Third, the party on whom rests the burden of the issues must first produce his evidence thereon; the adverse party will then produce his evidence which may then be rebutted.

(E) Public Access. Information filed or introduced in court proceedings is confidential to the extent provided by statutes, rules of court and Indiana Administrative Rule 9(G).

. . .

Rule 79. Special judge selection: circuit, superior, and probate , municipal, and county courts

(A) Application. When the appointment of a special judge is required under Trial Rule 76, the provisions of this rule constitute the exclusive manner for the selection of special judges in circuit, superior, and probate, ~~municipal, and county~~ courts in all civil and juvenile proceedings. Trial Rule 79.1 constitutes the exclusive manner for the selection of special judges in all actions in city, town, and the Marion county small claims courts.

(B) Duty to notify court. It shall be the duty of the parties to~~promptly~~ advise the court promptly of an application or motion for change of judge.

(C) Disqualification or recusal of judge. A judge shall disqualify and recuse whenever the judge, the judge's spouse, a person within the third degree of relationship to either of them, the spouse of such a person, or a person residing in the judge's household:

(1) is a party to the proceeding, or an officer, director or trustee of a party;

(2) is acting as a lawyer in the proceeding;

(3) is known by the judge to have an interest that could be substantially affected by the proceeding; or

(4) is ~~otherwise~~ associated with the pending litigation in such fashion as to require disqualification under ~~in accordance with Canon 3(E) of~~ the Code of Judicial Conduct or otherwise.

Upon disqualification or recusal under this section, a special judge shall be selected in accordance with Sections (D), (E), and (H) of this rule.

. . . (H) Selection under local rule. In the event a special judge does not accept the case under Sections (D), (E) or (F), or a judge disqualifies and recuses under Section (C), the appointment of an eligible special judge shall be made pursuant to a local rule approved by the Indiana Supreme Court which provides for the following:

(1) appointment of persons eligible under Section J who: a) are within the administrative district as set forth in Administrative Rule 3(A), or b) are from a contiguous county, and have agreed to serve as a special judge in the court where the case is pending;

. . .

These amendments shall take effect January 1, 2010.

Thomson Reuters is directed to publish this Order in the advance sheets of this Court.

The Clerks of the Circuit Courts are directed to bring this Order to the attention of all judges within their respective counties and to post this Order for examination by the Bar and general public.

DONE at Indianapolis, Indiana, this 15^th day of September, 2009.

All Justices concur.

ORDER AMENDING INDIANA RULES FOR ALTERNATIVE DISPUTE RESOLUTION

Under the authority vested in this Court to provide by rule for the procedure employed in all courts of this state and this Court's inherent authority to supervise the administration of all courts of this state, Indiana Alternative Dispute Resolution Rule 2.7 is amended to read as follows (deletions shown by ~~striking~~ and new text shown by underlining):

. . .

Rule 2.7. Mediation Procedure

(A) Advisement of Participants. The mediator shall:

(1) advise the parties of all persons whose presence at mediation might facilitate settlement; and

(2) in child related matters, ensure that the parties consider fully the best interests of the children and that the parties understand the consequences of any decision they reach concerning the children.; and (3) inform all parties that the mediator (a) is not providing legal advice, (b) does not represent either party, (c) cannot assure how the court would apply the law or rule in the parties' case, or what the outcome of the case would be if the dispute were to go before the court, and (d) recommends that the parties seek or consult with their own legal counsel if they desire, or believe they need legal advice: and (4) explain the difference between a mediator's role and a lawyer's role when a mediator knows or reasonably should know that a party does not understand the mediator's role in the matter: and (5) not advise any party (i) what that party should do in the specific case, or (ii) whether a party should accept an offer. (B) Mediation Conferences.

(1) The parties and their attorneys shall be present at all mediation sessions involving domestic relations proceedings unless otherwise agreed. At the discretion of the mediator, non-parties to the dispute may also be present.

(2) All parties, attorneys with settlement authority, representatives with settlement authority, and other necessary individuals shall be present at each mediation conference to facilitate settlement of a dispute unless excused by the court.

(3) A child involved in a domestic relations proceeding, by agreement of the parties or by order of the court, may be interviewed by the mediator out of the presence of the parties or attorneys.

(4) Mediation sessions are not open to the public.

(C) Confidential Statement of Case. Each side may submit to the mediator a confidential statement of the case not to exceed ten (10) pages, prior to a mediation conference, which shall include:

(1) the legal and factual contentions of the respective parties as to both liability and damages;

(2) the factors considered in arriving at the current settlement posture; and

(3) the status of the settlement negotiations to date.

A confidential statement of the case may be supplemented by damage brochures, videos, and other exhibits or evidence. The confidential statement of the case shall at all times be held privileged and confidential from other parties unless agreement to the contrary is provided to the mediator. In the mediation process, the mediator may meet jointly or separately with the parties and may express an evaluation of the case to one or more of the parties or their representatives. This evaluation may be expressed in the form of settlement ranges rather than exact amounts.

(D) Termination of Mediation. The mediator shall terminate mediation whenever the mediator believes that continuation of the process would harm or prejudice one or more of the parties or the children or whenever the ability or willingness of any party to participate meaningfully in mediation is so lacking that a reasonable agreement is unlikely. At any time after two (2) sessions have been completed, any party may terminate mediation. The mediator shall not state the reason for termination except when the termination is due to conflict of interest or bias on the part of the mediator, in which case another mediator may be assigned by the court. According to the procedures set forth herein, if the court finds after hearing that an agreement has been breached, sanctions may be imposed by the court.

(E) Report of Mediation: Status.

(1) Within ten (10) days after the mediation, the mediator shall submit to the court, without comment or recommendation, a report of mediation status. The report shall indicate that an agreement was or was not reached in whole or in part or that the mediation was extended by the parties. If the parties do not reach any agreement as to any matter as a result of the mediation, the mediator shall report the lack of any agreement to the court without comment or recommendation. With the consent of the parties, the mediator's report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement.

(2) If an agreement is reached, in whole or in part, it shall be reduced to writing and signed by the parties and their counsel. In domestic relations matters, the agreement shall then be filed with the court. If the agreement is complete on all issues, a joint stipulation of disposition shall be filed with the court. In all other matters, the agreement shall be filed with the court only by agreement of the parties.

(3) In the event of any breach or failure to perform under the agreement, upon motion, and after hearing, the court may impose sanctions, including entry of judgment on the agreement.

(F) Mediator's Preparation and Filing of Documents in Domestic Relations Cases At the request and with the permission of all parties in a domestic relations case, an attorney registered under ADR Rule 2.5(B) (Attorney Mediator) or a non-attorney registered under ADR Rule 2.5(B)(2)(b) (Non-Attorney Mediator) working under the supervision of an Attorney Mediator, may prepare or assist in the preparation of documents as set forth in this paragraph (F).

The Mediator shall inform an unrepresented party that he or she may have an attorney of his or her choosing (1) be present at the mediation and/or (2) review any documents prepared during the mediation. The Mediator shall also review each document drafted during mediation with any unrepresented parties. During the review the Mediator shall explain to unrepresented parties that they should not view or rely on language in documents prepared by the Mediator as legal advice. When the document(s) are finalized to the parties' and any counsel's satisfaction, and at the request and with the permission of all parties and any counsel, the Mediator may also tender to the court the documents listed below when the mediator's report is filed. The Mediator may prepare or assist in the preparation of only the following documents: (1) A written mediated agreement reflecting the parties' actual agreement, with or without the caption in the case and "so ordered" language for the judge presiding over the parties' case; (2) An order approving a mediated agreement, with the caption in the case, so long as the order is in the form of a document that has been adopted or accepted by the court in which the document is to be filed:

(3) A summary decree of dissolution, with the caption in the case, so long as the decree is in the form of a document that has been adopted or accepted by the court in which the document is to be filed and the summary decree reflects the terms of the mediated agreement; (4) A verified waiver of final hearing, with the caption in the case, so long as the waiver is in the form of a document that has been adopted or accepted by the court in which the document is to be filed; (5) A child support calculation, including a child support worksheet and any other required worksheets pursuant to the Indiana Child Support Guidelines or Parenting Time Guidelines, so long as the parties are in agreement on all the entries included in the calculations:

(6) An income withholding order, with the caption in the case, so long as the order is in the form of a document that has been adopted or accepted by the court in which the document is to be filed and the order reflects the terms of the mediated agreement.

These amendments shall take effect January 1, 2010.

Michie Company; and Thomson Reuters.

Thomson Reuters is directed to publish this Order in the advance sheets of this Court. The Clerks of the Circuit Courts are directed to bring this Order to the attention of all judges within their respective counties and to post this Order for examination by the Bar and general public.

DONE at Indianapolis, Indiana, this 15 ^th day of September, 2009.

All Justices concur.

ORDER AMENDING INDIANA RULES OF PROFESSIONAL CONDUCT

Under the authority vested in this Court pursuant to Article 7, Section 4 of the Indiana Constitution providing for the admission and discipline of attorneys in this state, Professional Conduct Rules 1.15 and 6.1 are amended to read as follows (deletions shown by ~~striking~~ and new text shown by underlining):

. . .

Rule 1.15. Safekeeping Property

. . .

(g) Every lawyer admitted to practice in this State shall annually certify to this Court, pursuant to Ind.Admis.Disc.R. ~~23(21)~~ 2(f), that all client funds which are nominal in amount or to be held for a short period of time by the lawyer or the lawyer's law firm so that they could not earn income for the client in excess of the costs incurred to secure such income are held in an IOLTA account, or that the lawyer is exempt because:

. . .

Rule 6.1. Pro Bono Publico Service

. . .

Comment

The American Bar Association House of Delegates has formally acknowledged "the basic responsibility of each lawyer engaged in the practice of law to provide public interest legal services" without fee, or at a substantially reduced fee, in one or more of the following areas: poverty law, civil rights law, public rights law, charitable organization representation and the administration of justice. The Indiana State Bar Association's House of Delegates has declared that "all Indiana lawyers have an ethical and a social obligation to provide uncompensated legal assistance to poor persons" and adopted an aspirational goal of fifty hours a year, or an equivalent financial contribution, for each member of the bar.

For purposes of this paragraph:

(a) Poverty law means legal representation of a client who does not have the financial resources to compensate counsel.

(b) Civil rights (including civil liberties) law means legal representation involving a right of an individual that society has a special interest in protecting.

(c) Public rights law means legal representation involving an important right belonging to a significant segment of the public.

(d) Charitable organization representation means legal service to or representation of charitable, religious, civic, governmental and educational institutions in matters in furtherance of the organization's purpose, where the payment of customary legal fees would significantly deplete the organization's economic resources or where it would be inappropriate.

(e) Administration of justice means activity, whether under bar association auspices or otherwise, which is designed to increase the availability of legal representation, or otherwise improve the administration of justice. This may include increasing the availability of legal resources to individuals or groups, improving the judicial system, or reforming legal institutions that significantly affect the lives of disadvantaged individuals and groups.

The rights and responsibilities of individuals and organizations in the United States are increasingly defined in legal terms. As a consequence, legal assistance in coping with the web of statutes, rules and regulations is imperative for persons of modest and limited means, as well as for the relatively well-to-do.

The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The provision of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer as well as the profession generally, but the efforts of individual lawyers are often not enough to meet the need. Thus, it has been necessary for the profession and government to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services and other related programs have been developed, and others will be developed by the profession and government. Every lawyer should support all proper efforts to meet this need for legal services.

[4] Typically, to fulfill the aspirational goals in Comment 1. legal services should be performed without the expectation of compensation. If, during the course of representation, a paving client is no longer able to afford a lawyer's legal services, and the lawyer continues to represent the client at no charge, any work performed with the knowledge and intent of no compensation may be considered pro bono legal service. The award of attorney's fees in a case originally accepted as pro bono does not disqualify such services from fulfilling the foregoing aspirational goals. However, lawyers who receive attorney's fees in pro bono cases are strongly encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means, or that promote access to justice for persons of limited means. [5] Typically, the following would not fulfill the aspirational goals in Comment 1:

(a) Legal services written off as bad debts.

(b) Legal services performed for family members.

(c) Legal services performed for political organizations for election purposes.

(d) Activities that do not involve the provision of legal services, such as serving on the board of a charitable organization.

These amendments shall take effect January 1, 2010.

Thomson Reuters is directed to publish this Order in the advance sheets of this Court.

The Clerks of the Circuit Courts are directed to bring this Order to the attention of all judges within their respective counties and to post this Order for examination by the Bar and general public.

DONE at Indianapolis, Indiana, this 15 ^th day of September, 2009.

All Justices concur.

ORDER AMENDING INDIANA RULES OF APPELLATE PROCEDURE

Under the authority vested in this Court to provide by rule for the procedure employed in all courts of this state and this Court's inherent authority to supervise the administration of all courts of this state, Indiana Appellate Rules 4, 5, 15, 16, 20, 44, 66 and Form 15-1 are amended to read as follows (deletions shown by ~~striking~~ and new text shown by underlining):

. . .

Rule 4. Supreme Court Jurisdiction

A. Appellate Jurisdiction.

. . .

(3) Certain Interlocutory Appeals. The Supreme Court shall have jurisdiction over interlocutory appeals authorized under Appellate Rule 14 in any case in which the State seeks the death penalty or in life without parole cases in which the interlocutory order raises a question of interpretation of IC 35-50-2-9.

. . .

Rule 5. Court Of Appeals Jurisdiction

. . .

B. Appeals From Interlocutory Orders. The Court of Appeals shall have jurisdiction over appeals of interlocutory orders under Rule 14 except those appeals described in Rule 4(A)(3) .

. . .

Rule 15. Appellant's Case Summary

. . .

C. Content. The Appellant's Case Summary shall set forth the following information, as applicable:

. . .

(4) Appeal Information.

(a) A short and plain statement of the anticipated issues on appeal; provided, however, that the statement of anticipated issues shall not prevent the raising of any issue on appeal;

(b) Prior appeals in same case;

(c) Related appeals (prior, pending or potential) known to the party;

(d) Whether a motion for oral argument will be filed;

(e) Whether a motion for pre-appeal conference will be filed;

(f) In Criminal Appeals, the status of the defendant (e.g., on bond, incarcerated and, if so, where);

(g) Whether Alternative Dispute Resolution has been used and whether appellant is willing to participate in Appellate ADR ~~it should be used on appeal~~;

. . .

Rule 16. Appearances

A. Initiating Parties. The filing of an Appellant's Case Summary pursuant to Rule 15 satisfies the requirement to file an appearance.

B. Responding Parties. All other parties participating in an appeal shall file an appearance form with the Clerk. When the State is appellee in a Criminal Appeal, the Clerk shall enter the appearance of the Attorney General. The appearance form shall be filed within thirty (30) days after the filing of the first Appellant's Case Summary or contemporaneously with the first document filed by the appearing party, whichever comes first. The appearance form shall contain the following:

(1) Name and address of the appearing party, and if the appearing party is not represented by counsel, the party's FAX number, telephone number, and electronic mail address, if any;

(2) Name, address, attorney number, telephone number, FAX number, and electronic mail address, if any, of the attorneys representing the parties; and

(3) Whether the attorney requests transmittal of orders and opinions by FAX pursuant to Rule 26.; and

(4) If it is a civil case, whether Appellee is willing to participate in Appellate ADR.

. . .

Rule 20. Appellate Alternative Dispute Resolution

The parties in civil cases are encouraged to consider appellate mediation. The Court on Appeal may, upon motion of any party or its own motion, conduct or order appellate alternative dispute resolution.

. . .

Rule 44. Brief And Petition Length Limitations

. . .

D. Page Limits. Unless a word count complying with Section E is provided, a brief or Petition may not exceed the following number of pages:

Appellant's brief: thirty (30) pages

Appellee's brief: thirty (30) pages

Reply brief (except as provided below): fifteen (15) pages

Reply brief with cross-appellee's brief: thirty (30) pages

Brief of intervenor or amicus curiae: fifteen (15) pages

Petition for Rehearing: ten (10) pages

Brief in response to a Petition for Rehearing: ten (10) pages

Petition to Transfer: ten (10) pages

Brief in response to a Petition seeking Transfer: ten (10) pages

Reply brief to brief in response to a Petition seeking Transfer: three (3) pages

Brief of intervenor or amicus curiae on transfer or rehearing: ten (10) pages

Petition for Review of a Tax Court decision: thirty (30) pages

Brief in response to a Petition for Review of a Tax Court decision: thirty (30) pages

Reply brief to brief in response to a Petition for Review of a Tax Court decision: fifteen (15) pages

E. Word Limits. A brief or Petition exceeding the page limit of Section D may be filed if it does not exceed, and the attorney or the unrepresented party preparing the brief or Petition certifies that, including footnotes, it does not exceed, the following number of words:

Appellant's brief: 14,000 words

Appellee's brief: 14,000 words

Reply brief (except as provided below): 7,000 words

Reply brief with cross-appellee's brief: 14,000 words

Brief of intervenor or amicus curiae: 7,000 words

Petition for Rehearing: 4,200 words

Brief in response to a Petition for Rehearing: 4,200 words

Petition to Transfer: 4,200 words

Brief in response to a Petition seeking Transfer: 4,200 words

Reply brief to brief in response to a Petition seeking Transfer: 1,000 words

Brief of intervenor or amicus curiae on transfer or rehearing: 4,200 words

Petition for Review of a Tax Court decision: 14,000 words

Brief in response to a Petition for Review of a Tax Court decision: 14,000 words

Reply brief to brief in response to a Petition for Review of a Tax Court decision: 7,000 words

. . .

Rule 66. Relief Available on Appeal

. . .

E. Damages ~~Against Appellant~~ for Frivolous or Bad Faith Filings . The Court may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court's discretion and may include attorneys' fees. The Court shall remand the case for execution.

. . .

Form App. R. 15-1. Appellant's Case Summary (Appearance)

These amendments shall take effect January 1, 2010.

Thomson Reuters is directed to publish this Order in the advance sheets of this Court.

The Clerks of the Circuit Courts are directed to bring this Order to the attention of all judges within their respective counties and to post this Order for examination by the Bar and general public.

DONE at Indianapolis, Indiana, this 15 ^th day of September, 2009.

All Justices concur.

ORDER AMENDING RULES OF PROCEDURE FOR ORIGINAL ACTIONS

Under the authority vested in this Court to provide by rule for the procedure employed in all courts of this state and this Court's inherent authority to supervise the administration of all courts of this state, Original Action Form 4 is amended to read as follows (deletions shown by~~striking~~ and new text shown by underlining):

. . .

FORM 4. EMERGENCY WRIT OF MANDAMUS AND PROHIBITION FORM

IN THE SUPREME COURT OF INDIANA NO._________________

STATE OF INDIANA ON THE RELATION OF JOHN J. JONES, RELATOR, v. THE ___________ COURT AND THE HONORABLE _______________, AS JUDGE THEREOF, RESPONDENTS.

EMERGENCY WRIT

This original action comes before the Supreme Court on the application of Relator for a writ of mandamus and prohibition against Respondents.

Relator alleges Relator will be irreparably harmed if this Court does not stay all proceedings in cause number [ insert cause number of underlying action] until the Court may conduct a hearing on Relator's original action.

Accordingly, it is ordered that Respondents, the __________ Court and the Honorable __________, as Judge thereof, stay all proceedings in cause number __________ until such time as the Court may rule upon Relator's request for writ of mandamus and prohibition.

It is further ordered that the Clerk shall serve a certified copy of this emergency ~~permanent~~ writ of mandamus and prohibition on Respondents, the __________ Court and the Honorable __________, as Judge thereof, . . . [ here Relator shall insert the complete address of the respondent judge for mailing purposes]; . . . [here Relator shall insert the name and complete address for mailing purposes of each party opposing Relator in the respondent court]; and . . . [here Relator shall insert the name, capacity, and complete address for mailing purposes of the Attorney General, if service on the Attorney General is required by Orig. Act. R. 6(D)(1)].

So ordered this __________ day of __________, 20 ___.

_______________

Chief Justice

. . .

These amendments shall take effect January 1, 2010.

Thomson Reuters is directed to publish this Order in the advance sheets of this Court.

The Clerks of the Circuit Courts are directed to bring this Order to the attention of all judges within their respective counties and to post this Order for examination by the Bar and general public.

DONE at Indianapolis, Indiana, this 15 ^th day of September, 2009.

All Justices concur.

ORDER AMENDING RULES OF EVIDENCE

Pursuant to its authority under Article 7, Section 4 of the Indiana Constitution, Indiana Code § 34-8-1-3, and Indiana Evidence Rule 1101(B), this Court, in supervising the exercise of jurisdiction by Indiana trial courts through the adoption of rules that govern practice and procedure, directed the Supreme Court Committee on Rules of Practice and Procedure to draft and publish for public comment a proposed Rule of Evidence relating to the admission in criminal cases of unrecorded statements made during custodial interrogation.

Following the publication of such rule proposals, more than three hundred written responses were received for review by this Court, eighty-nine of which were from law enforcement officers, eighty from the general public, thirty-six from prosecutors, twenty-seven from public defenders, five from judges, sixty-one from other attorneys, and five from other judicial officers. Many responses included substantial quantities of supportive materials, in addition to which, there exists a significant body of legal and scientific research addressing this topic.

Custodial interrogations are now being electronically recorded in a growing number of states. Statutory requirements have been enacted for Illinois, Maine, Maryland, Nebraska, New Mexico, North Carolina, Texas, Wisconsin, and the District of Columbia. Court decisions or rules require or strongly encourage electronic recording in Alaska, Iowa, Massachusetts, Minnesota, New Hampshire, and New Jersey. Legislation has been proposed in several other states and endorsed by the American Bar Association. A model rule requiring the electronic recording of custodial interrogation is being considered by the National Conference of Commissioners on Uniform State Laws. The comments received report that hundreds of police and sheriff departments, including many in Indiana, currently record most custodial interrogations in felony cases. Surveys and interviews report that most law enforcement departments that implement the practice have ultimately found it useful and report a positive experience.

Electronically recorded interrogations are a potent law enforcement tool. Confessions provide strong evidence of guilt, but often suspects make incriminating statements but later claim that police failed to give them required warnings or otherwise engaged in unlawful behavior. A complete electronic recording can confirm that police gave all required warnings and complied with the law, protect them from false claims of abuse or coercion, eliminate swearing matches, and prove that suspects confessed voluntarily, knowingly, and intelligently, leading to more guilty pleas. In addition to these benefits, recording allows officers to focus on a suspect's answers and body language rather than on taking notes; the recording can be reviewed for any overlooked details; and it can also provide a training tool for effective interrogation techniques.

Electronically recorded interrogations assist courts. Because the admissibility of a suspect's statement at a trial often requires examination of the circumstances under which the statement was made, courts often expend time and resources determining what took place in the interrogation room. As Indiana federal District Court Judge William Lee remarked, "I don't know why I have to sit here and sort through the credibility of what was said in these interviews when there's a perfect device available to resolve that and eliminate any discussion about it. . . . We shouldn't be taking up the Federal Court's time of an hour and a half . . . trying to figure out who said what to whom when in these interviews because there's no videotape of them." Transcript of Motion to Suppress Hearing at 72-73, United States v. Bland, No. 1:02-CR-93 (N.D. Ind. Dec. 12, 2002). The Indiana Court of Appeals has also declared that it:

. . . discern[s] few instances in which law enforcement officers would be justified in failing to record custodial interrogations in places of detention. Disputes regarding the circumstances of an interrogation would be minimized, in that a tape recording preserves undisturbed that which the mind may forget. In turn, the judiciary would be relieved of much of the burden of resolving disputes involving differing recollections of events which occurred. Moreover, the recording would serve to protect police officers against false allegations that a confession was not obtained voluntarily. Therefore, in light of the slight inconvenience and expense associated with the recording of custodial interrogations in their entirety, it is strongly recommended, as a matter of sound policy, that law enforcement officers adopt this procedure.

Stoker v. State, 692 N.E.2d 1386, 1390 (Ind. Ct. App. 1998) (internal citations and footnotes omitted). "There can be little doubt that the electronic recording of a custodial interrogation benefits all parties involved." Gasper v. State, 833 N.E.2d 1036, 1041 (Ind. Ct. App. 2005). And because they are likely to lessen factual disputes, the use of audio-video recorded interrogations should reduce the number and extent of motions to suppress evidence, court hearings to resolve such motions, and appellate litigation challenging the resulting rulings.

Electronically recorded interrogations can also be a source of important evidence to help resolve claims of false confessions. While the vast majority of suspects who confess presumably do so truthfully, with the advent of DNA evidence, there is evidence that on occasion some people may confess to crimes they did not commit. One report asserts that in a substantial number of DNA exoneration cases, innocent persons made incriminating statements or false confessions. Although extremely rare, false confessions can occur despite an interrogator's good intentions. A complete audio-video recording, which captures a suspect's tone of voice, facial expressions, and body language, as well as the interrogator's questions and tone, should substantially assist police, prosecutors, courts, and juries in their search for truth, justice, and due process of law.

The principal objections presented in the comments received from those opposed to a rule favoring electronic recording of custodial interrogation are: (a) costs of implementation; (b) implied distrust of police; (c) risks of technical malfunction; and (d) possible reluctance of some suspects to confess if being recorded.

Not only has the price of video recording equipment become very inexpensive, but equipment and operational costs are likely to be offset by saved time of police in writing reports and transcriptions of interrogations, and of prosecutors and courts through fewer motions to suppress, fewer disputes at trials, and more guilty pleas. In adopting the Rule, this Court is expressing its confidence in Indiana law enforcement officers and seeking to assure evidentiary proof of the propriety of interrogation techniques that are used. These objectives can be substantially achieved by adopting a rule that applies to police station interrogation and not to statements made by suspects during arrest or while being transported. Risks of malfunction are addressed by providing exceptions within the rule. And the concern that suspects may be unwilling to submit to recorded interviews is belied by experience elsewhere. Surveys of over 450 departments that currently record custodial interrogations show that a suspect's knowledge of being recorded has little if any effect on their cooperation.

With the foregoing considerations in mind, this Court finds that the interests of justice and sound judicial administration will be served by the adoption of a new Rule of Evidence to require electronic audio-video recordings of customary custodial interrogation of suspects in felony cases as a prerequisite for the admission of evidence of any statements made during such interrogation. Noting the joint request of the Marion County Prosecutor's Office and the Indianapolis Metropolitan Police Department to delay the implementation of any such rule, so as to permit the purchase and installation of equipment and the training of officers, we determine that the new rule shall apply only to statements made on or after January 1, 2011.

Under this Court's inherent authority to supervise the administration of all courts of this state, the Indiana Rules of Evidence are hereby amended by the addition of the following new Rule 617, which shall apply to evidence of a statement made by a person during custodial interrogation that occurs on or after January 1, 2011.

INDIANA RULES OF EVIDENCE

Rule 617. Unrecorded Statements During Custodial Interrogation

(a) In a felony criminal prosecution, evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made, preserved, and is available at trial, except upon clear and convincing proof of any one of the following:

(1) The statement was part of a routine processing or "booking" of the person; or

(2) Before or during a Custodial Interrogation, the person agreed to respond to questions only if his or her Statements were not Electronically Recorded, provided that such agreement and its surrounding colloquy is Electronically Recorded or documented in writing; or

(3) The law enforcement officers conducting the Custodial Interrogation in good faith failed to make an Electronic Recording because the officers inadvertently failed to operate the recording equipment properly, or without the knowledge of any of said officers the recording equipment malfunctioned or stopped operating; or

(4) The statement was made during a custodial interrogation that both occurred in, and was conducted by officers of, a jurisdiction outside Indiana; or

(5) The law enforcement officers conducting or observing the Custodial Interrogation reasonably believed that the crime for which the person was being investigated was not a felony under Indiana law; or

(6) The statement was spontaneous and not made in response to a question; or

(7) Substantial exigent circumstances existed which prevented the making of, or rendered it not feasible to make, an Electronic Recording of the Custodial Interrogation, or prevent its preservation and availability at trial.

(b) For purposes of this rule, "Electronic Recording" means an audio-video recording that includes at least not only the visible images of the person being interviewed but also the voices of said person and the interrogating officers; "Custodial Interrogation" means an interview conducted by law enforcement during which a reasonable person would consider himself or herself to be in custody; "Place of Detention" means a jail, law enforcement agency station house, or any other stationary or mobile building owned or operated by a law enforcement agency at which persons are detained in connection with criminal investigations.

(c) The Electronic Recording must be a complete, authentic, accurate, unaltered, and continuous record of a Custodial Interrogation.

(d) This Rule is in addition to, and does not diminish, any other requirement of law regarding the admissibility of a person's statements.

The Clerk of this Court is directed to forward a copy of this Order to the clerk of each circuit court in the State of Indiana; Administrator, Indiana Court of Appeals; Administrator, Indiana Tax Court; Attorney General of Indiana; Legislative Services Agency and its Office of Code Revision; the Indiana State Public Defender; Indiana Supreme Court Disciplinary Commission; Indiana Supreme Court Commission on Continuing Legal Education; Indiana Board of Law Examiners; Indiana Judicial Center; Division of State Court Administration; Indiana Judges and Lawyers Assistance Program; the Executive Director of the Indiana State Bar Association; the Executive Director of the Indiana Prosecuting Attorney's Council; the libraries of all law schools in this state; the Michie Company; and Thomson Reuters.

DONE at Indianapolis, Indiana, this 15 ^th day of September, 2009.

DICKSON, BOEHM, and RUCKER, JJ., concur

SHEPARD, C.J., dissents with opinion

SULLIVAN, J., dissents with opinion

SHEPARD, Chief Justice, dissenting.

There are states where bad conduct by police or prosecutors has led to repeated injustice in the criminal process. Indiana has not been such a place. My assessment of the honesty and professionalism of Indiana's public safety officers leads me to conclude that today's action is not warranted.

SULLIVAN, Justice, dissenting.

I respectfully dissent from the adoption of Evidence Rule 617 concerning video recording of custodial interrogations. In the course of this Court's consideration of appeals in criminal cases during the past year, I have observed that many Indiana police departments have already taken the initiative to record interrogations. Given that law enforcement agencies are already moving in this direction on their own, I do not believe that it is necessary or advisable for this Court to prescribe practice in this area by rule.

ORDER AMENDING INDIANA RULES FOR ADMISSION TO THE BAR AND THE DISCIPLINE OF ATTORNEYS

Under the authority vested in this Court pursuant to Article 7, Section 4 of the Indiana Constitution providing for the admission and discipline of attorneys in this state, Admission and Discipline Rules 2, 6, 19, 23 §§ 1, 3, 4, 6, 10, 11, 11.2, 11.3, 12, 13, 14, 15, 16, 17, 17.1, 17.2, 18, 19, 20, 22, 28, and 30, 25, 26 and 27 are amended to read as follows (deletions shown by ~~striking~~ and new text shown by underlining):

. . .

Rule 2. Registration and Fees

. . .

(f) IOLTA Certification. On or before October 1 of each year, every~~lawyer~~ attorney admitted to practice law in this state shall certify to the Clerk of this Court that all client funds that are nominal in amount or to be held for a short period of time by the ~~lawyer~~ attorney so that they could not earn income for the client in excess of the costs incurred to secure such income are held in an IOLTA account (as that term is defined in Indiana Rules of Professional Conduct, Rule 1.15(f)) of the~~lawyer~~ attorney or law firm or that the ~~lawyer~~ attorney is exempt under the provisions of Prof. Cond. R. 1.15(g)(2). Any attorney who fails to make an IOLTA certification on or before October 1 of each year shall be assessed a delinquent fee according to the schedule set forth in section (b) if the attorney is active or section (c) if the attorney is inactive.

(g) Annual Registration ~~Fee~~ Notice. On or before August 1 of each year, the Clerk of this Court shall mail a notice to each attorney then admitted to the bar of this Court who is in active or inactive good standing that: (i) a registration fee must be paid on or before October 1; and (ii) the certification required by section (f) of this rule and by Ind.Prof. Cond. R. 1.15(g) must be filed with the Clerk on or before October 1. The Clerk shall also send a copy of such notice to the Clerk for each circuit and superior court in this State for posting in a prominent place in the courthouse, the Indiana State Bar Association, and such print and other media publishers of legal information as the Clerk reasonably determines appropriate. Provided, however, that the failure of the Clerk to send such notice will not mitigate the duty to pay the required fee and file the required certification.

(h) Failure to Pay Registration Fee; Reinstatement. Any attorney who fails to pay a registration fee required under section (b) or (c) or fails to file the certification required by section (f) of this rule and by Ind.Prof. Cond. R. 1.15(g) shall be subject to suspension from the practice of law and sanctions for contempt of this Court in the event he or she thereafter engages in the practice of law in this State. In the event there is no basis for the continued suspension of the attorney's license to practice law, such an attorney's privilege to practice law shall be reinstated upon submitting to the Clerk a written application for reinstatement and payment of:

(1) the applicable unpaid registration fee for the year of suspension;

(2) any delinquent fees for the year of suspension due pursuant to section (b) or (c);

(3) the applicable unpaid registration fee for the year of reinstatement, if different from the year of suspension;

(4) a registration fee, including delinquent fees, in the amount referred to in section (c) for all intervening years of suspension; ~~and~~

(5) an administrative reinstatement fee of two hundred dollars ($200.00); and

(6) the certification required by section (f) of this rule.

The Clerk shall deposit the administrative reinstatement fee referred to in subsection (h)(5) in to the "Clerk of the Courts-Annual Fees" account, described in section (m).

. . .

Rule 6. Admission on Foreign License

. . .

Section 4. Renewal of Provisional License and Business License

(a) Renewal of Provisional License. A provisional license admission on a foreign license may continue in force for one year, and may be renewed for a like period upon the submission of such verified individualized information as will demonstrate to the satisfaction of the Board that the applicant has during the past year been both (a) engaged in the practice of law as defined in Section 1(a), and (b) predominantly in Indiana. At the time of the first renewal request, the applicant must also submit verified information to demonstrate compliance with the educational requirements of Section 5. ~~Each application for renewal of provisional license admission shall be accompanied by a fee of fifty dollars ($50.00)~~ . Upon the fifth consecutive renewal of the provisional license granted to the applicant, the admission to practice shall be permanent.

(b) Renewal of Business Counsel License. A business counsel license may continue in force for one year, and may be renewed for a like period upon the submission of such verified individualized information as will demonstrate to the satisfaction of the Board that the applicant has during the past year been employed under the terms of the business counsel license and will continue to be so employed. At the time of the first renewal request, the applicant must also submit verified information to demonstrate compliance with the educational requirements of Section 5. ~~A fee of fifty dollars ($50) shall accompany each application for renewal of a business counsel license.~~ (c) Annual Renewal Fee — Provisional License and Business Counsel License. Each attorney who is licensed pursuant to this Rule shall pay a renewal fee of $50.00 on or before November 1 of each year; a delinquent fee in the amount of $25.00 shall be added to the renewal fee for fees paid after November 1 and on or before November 15 of each year; a delinquent fee in the amount of $50.00 shall be added to the renewal fee for fees paid after November 15 and on or before December 31 of each year; a delinquent fee in the amount of $150.00 shall be added to the renewal fee for fees paid after December 31 of each year. Additionally, a $100.00 surcharge will be added to the late fee for each consecutive year for which the attorney fails to timely file the renewal form. This renewal fee is in addition to any annual registration and fees paid under Admission and Discipline Rule 2. (d) Failure to Pay Renewal Fee or Comply with Educational Requirements of Section 5; Revocation of License. Any attorney who fails to pay the renewal fee required under Section 4(c) or fails to file the affidavit required under Section 4(f) or fails to comply with the educational requirements of Section 5 shall be subject to revocation of his or her license to practice law and sanctions for contempt of this Court in the event he or she thereafter engages in the practice of law in this State. (e) Annual Renewal Notice. On or before September 1 of each year, the Executive Director of the State Board of Law Examiners shall mail a notice to each attorney admitted to practice pursuant to this Rule that (i) a renewal fee must be paid on or before November 1; and (ii) the attorney must (a) affirm compliance with eligibility requirements to maintain the license or (b) submit the signed relinquish affidavit to the State Board of Law Examiners on or before November 1. Notice sent pursuant to this section shall be sent to the name and address maintained by the Clerk of the Supreme Court pursuant to Admission and Discipline Rule 2. (f) Relinquishing of License. Any attorney who is licensed pursuant to this Rule who is in good standing, who is current in payment of all applicable registration fees and other financial obligations imposed by these rules, who is not the subject of an investigation into or a pending proceeding involving allegations of misconduct, and who no longer is able to meet the requirements to maintain his or her license pursuant to this Rule may voluntarily relinquish his or her license to practice law in the State of Indiana by tendering the renewal form with the relinquish affidavit signed to the Executive Director of the State Board of Law Examiners. The Executive Director shall promptly verify the eligibility of the attorney to relinquish under this section and if eligible, forward a certification of eligibility to the Clerk of the Indiana Supreme Court, and the Clerk shall show on the Roll of Attorneys that the attorney's Indiana law license has been relinquished permanently and that the lawyer is no longer considered an attorney licensed to practice law in the State of Indiana. An attorney who relinquishes his license pursuant to this provision may apply for admission under Admission and Discipline Rules 3 through 21. In the event the attorney is not eligible to relinquish under this section, the Executive Director shall promptly notify the attorney of all reasons for ineligibility.

Section 5. Education Requirements for Provisional License and Business Counsel License

(a) In addition to any requirements found in Rule 29, W within twelve (12) months of an applicant's initial provisional license or business counsel license admission, the applicant shall attend an annual Indiana law update ~~forum~~ seminar, which ~~forum-~~ seminar shall provide a minimum of 12 hours of continuing legal education which has been approved by the Indiana Commission For Continuing Legal Education. The Board of Law Examiners shall publish a list of approved seminars that meet the requirements of this Rule. (b) Applicants admitted on provisional license or business counsel license are subject to, and shall comply with, the Indiana Rules For Admission to the Bar and the Discipline of Attorneys, the Rules of Professional Conduct, and all other requirements of statute and Supreme Court Rules.

Section 6. Application of Rules and Appearance Before Board The provisions of Rule 12, Sections 7, 8, and 9 apply to admission under this Rule. An applicant for admission on foreign license who is denied admission may request an appearance before the Board and a hearing thereafter.

. . .

Rule 19. Confidentiality

Section 1. All information and all records obtained and maintained by the Board of Law Examiners in the performance of its duty under these rules and as delegated by the Supreme Court of Indiana shall be confidential, except as otherwise provided by these rules, or by order of (or as otherwise authorized by) the Supreme Court of Indiana.

Section 2. All materials and information in the possession or knowledge of the Board of Law Examiners, its Executive Director, or its agents or employees, shall be the property of the Supreme Court of Indiana, and the Board shall serve as custodian of such materials and information. This shall include, but not be limited to, the applications and files of all the applicants, reports and correspondence regarding investigation of applicants, inter-office and inter-member memoranda, minutes and records of all meetings and hearings, and all examination materials and results.

Section 3. The Board is authorized to disclose information relating to applicants or members of the bar only as follows:

(a) The names of applicants successfully passing the law examination.

(b) The name of any applicant admitted to the practice of law at any admission ceremony.

(c) The name, date of birth, Social Security number, ~~and date of application~~, and other information relating to a bar application, an applicant, and the result of the bar application for placement in a national data bank operated by or on behalf of the National Conference of Bar Examiners.

(d) Upon request of any law school, the names of each of its graduating students that took the law examination and whether each passed or failed the exam.

(e) Information requests by the National Conference of Bar Examiners or from a foreign bar admitting agency, when accompanied by a written authorization and release duly executed by the person about whom such information is sought, providing, however, that no information received by the Board under an agreement of confidentiality or designation of confidentiality or otherwise restricted by law or these rules shall be disclosed.

(f) Information relating to a violation of the Indiana Rules of Professional Conduct or to the unauthorized practice of law may be supplied to the Indiana Disciplinary Commission either at the request of the Disciplinary Commission or on the Board's own motion, except that information received by the Board under an agreement of confidentiality or otherwise restricted by law shall not be disclosed.

(g) Copies of documents previously filed by an applicant may be provided upon the applicant's written request. Copies of documents submitted by other parties regarding an applicant may be supplied to the applicant only upon written consent by the party submitting such documents. The complete record of any hearing, including any and all documents or exhibits formally introduced into the record, and any transcript of such hearings may be made available to the applicant who was a party to the hearing pursuant to other provisions of these rules.

. . .

Rule 23. Disciplinary Commission and Proceedings

Section 1. General Principles

Each person granted the privilege to practice law in this State has the obligation to behave at all times in a manner consistent with the trust and confidence reposed in him or her by this Court and in a manner consistent with the duties and responsibilities as an officer or judge of the courts of this State. The Supreme Court has exclusive jurisdiction of all cases in which an attorney who is admitted to the bar of this Court or who practices law in this State (hereinafter referred to as "attorney") is charged with misconduct. The procedures hereinafter set forth shall be employed and construed to protect the public, the court and the members of the bar of this State from misconduct on the part of attorneys and to protect attorneys from unwarranted claims of misconduct.

The term "attorney" as used in this rule shall include, in addition to all persons admitted to the bar of this Court, or who practice law in this State, any and all judges of any and all courts of this State now in existence or hereafter created or established.

Unless otherwise specified, the term "Clerk" as used in this rule shall mean the Clerk of the Indiana Supreme Court. Court of Appeals and Tax Court.

. . . Section 3. Types of Discipline and Suspension

. . .

(d) Notice of permanent disbarment, resignation under Section 17, suspension, reinstatement (except automatic reinstatement), revocation of probation, release from probation, or public reprimand shall be communicated to the parties to the proceeding, the Clerk of this Court, the Clerk of the United States Court of Appeals for the Seventh Circuit, the Clerk of each of the Federal District Courts in this State, the Clerk of the United States Bankruptcy Courts in this State, the Clerk of the Court and Bar Association of each county in which the attorney maintains an office, the Clerk of the Court and Bar Association of each contiguous county, a newspaper of general circulation in each county in which the attorney maintains an office, the official publication of the Indiana State Bar Association, and the American Bar Association. In addition, notice of disbarment, resignation under Section 17 or suspension of one year or more shall be communicated to the Clerk of the United States Supreme Court. Notice of private reprimand shall be communicated to the parties to the proceeding and the Clerk of this Court. In cases where probation is imposed by this Court, the Clerk shall notify such persons as the Court may direct of the action taken and of the restriction, conditions or limitations.

Section 4. Reinstatement

. . .

(b) A petition for reinstatement may be granted if the petitioner establishes by clear and convincing evidence before the disciplinary commission of this Court that:

(1) The petitioner desires in good faith to obtain restoration of his or her privilege to practice law;

(2) The petitioner has not practiced law in this State or attempted to do so since he or she was disciplined;

(3) The petitioner has complied fully with the terms of the order for discipline;

(4) The petitioner's attitude towards the misconduct for which he or she was disciplined is one of genuine remorse;

(5) The petitioner's conduct since the discipline was imposed has been exemplary and above reproach;

(6) The petitioner has a proper understanding of and attitude towards the standards that are imposed upon members of the bar and will conduct himself or herself in conformity with such standards;

(7) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and an officer of the Courts;

(8) The disability has been removed, if the discipline was imposed by reason of physical or mental illness or infirmity, or for use of or addiction to intoxicants or drugs;

(9) The petitioner has taken the Multistate Professional Responsibility Examination (MPRE) within six (6) months before or after the date the petition for reinstatement is filed and passed with a scaled score of eighty (80) or above.

(c) Whenever a person is suspended for a definite period not to exceed six (6) months with provision for automatic reinstatement, the commission shall have the right to file written objections to such automatic reinstatement, setting forth its reasons for such objections, which shall be limited to:

(1) failure to comply with the terms of the order;

(2) pendency of other complaints;

(3) failure to comply with the terms of Section 26, infra; and

(4) failure to satisfy fully the costs of the proceeding assessed pursuant to Section 16.

Such objections must be filed with the Court at least ~~ten (10)~~ fifteen (15) days prior to the expiration of such period of suspension, and a copy of such objections shall be mailed to the suspended attorney. The Court shall conduct a hearing on such objections and upon the question of reinstatement of such attorney, except that the Court need not conduct a hearing when the reason for the objections is the respondent's failure to satisfy fully the costs of the proceeding assessed pursuant to Section 16. After such hearing, the Court shall determine whether or not such suspended attorney shall be reinstated. If the Court determines that such attorney should not then be reinstated, the Court shall, in its order, specify when such attorney shall be eligible to apply for reinstatement pursuant to subsection (a) of this section.

If the Court determines that the respondent has failed to satisfy fully the costs assessed against him or her, the Court may enter an order staying the automatic reinstatement until the suspended attorney satisfies fully the costs of the proceeding assessed against such attorney or until further order of the Court.

(d) The Court may provide for reinstatement on other terms and by other procedures than those set forth above, such as reinstatement conditioned only on the attorney's submission of proof of compliance with a requirement for reinstatement.

. . .

Section 6. Composition of Supreme Court Disciplinary Commission

. . .

(b) The Disciplinary Commission shall consist of nine (9) members appointed by the Supreme Court of Indiana, seven (7) of whom shall be admitted to the Bar of the Supreme Court and two (2) of whom shall be lay persons. Those who are not members of the Bar must take and subscribe to an oath of office which shall be filed and maintained by the Clerk ~~of this Court~~. A reasonable effort shall be made to provide a geographical representation of the State. The term of each member shall be for five (5) years. Provided, however, upon the effective date of this rule, two (2) members shall be appointed for a term of two (2) years, two (2) members for a term of three (3) years, two (2) members for a term of four (4) years and one (1) member for a term of five (5) years. The initial term of the two additional members authorized by the amendment of this subsection effective February 1, 1996, shall be for two (2) and four (4) years, respectively. Thereafter, the terms of each appointee shall be for five (5) years, or in the case of an appointee to fill the vacancy of an unexpired term, until the end of such unexpired term. Any member may be terminated by the Court for a good cause.

(c) Commission members who are not admitted to the Bar shall not be eligible for appointment as hearing officers under Section 18(b) of this rule.

. . .

Section 10. Investigatory Procedures

. . .

(e) It shall be the duty of every attorney against whom a grievance is filed under this Section to cooperate with the Commission's investigation, accept service, comply with the provisions of these rules, and when notice is given by registered or certified mail, claim the same in a timely manner either personally or through an authorized agent. Every attorney is obligated under the terms of Admission and Discipline Rule 2 to notify the Clerk ~~of the Supreme Court~~ of any change of address or name within thirty (30) days of such change, and a failure to file the same shall be a waiver of notice involving licenses as attorneys or disciplinary matters.

. . .

Section 11. Pre-hearing Procedures

. . .

(b) If after such consideration, the Commission determines there is a reasonable cause to believe the respondent is guilty of misconduct which would warrant disciplinary action, it shall file with the Clerk a complaint as provided in Section 12. Upon the filing of a complaint, the Supreme Court shall appoint a hearing officer or officers, not to exceed three (3) in number, who shall be members of the Bar of this Court, none of whom shall be members of the Disciplinary Commission, to hear and determine said charges. A respondent may on a showing of good cause petition the Court for a change of hearing officer within ten (10) days after the appointment of such hearing officer.

(c) After the filing of a complaint with the Clerk, the parties (commission and respondent) may conditionally agree upon the discipline to be imposed, in which event they shall jointly submit to the Division of ~~State~~ Supreme Court Administration Office a statement of circumstances which shall contain the charges, the facts agreed to, the facts in dispute, the evidence the parties separately believe would be adduced in a hearing, the charge(s) which the parties agree are established, and the discipline with which the parties are in conditional agreement. Said agreement shall also contain an affidavit executed by the respondent stating that the respondent consents to the agreed discipline and that:

. . .

Section 11.2 Filing and Service of Pleading and Other Papers

(a) Filing.

(1) Except as otherwise provided in subsection (2) hereof, all pleadings and papers subsequent to the complaint which are required to be served upon a party shall be filed with the Clerk ~~of the Supreme Court~~.

(2) No deposition or request for discovery or response thereto shall be filed with the Court unless required under circumstances set forth in Trial Rule 5(D)(2).

(3) Original depositions shall be maintained according to the procedures set forth in Trial Rule 5(D)(3).

(4) In the event it is made to appear to the satisfaction of the hearing officer that the original of a deposition or request for discovery or response thereto cannot be filed with the Court when required, the Court may allow use of a copy instead of the original.

(5) The filing of any deposition shall constitute publication.

( b) Filing With the Court Defined. All papers will be deemed filed with the Clerk when they are:

(1) personally delivered to the Clerk;

(2) deposited in the United States Mail, postage prepaid, properly addressed to the Clerk; or

(3) deposited with any third-party commercial carrier for delivery to the Clerk within three

(3) calendar days, cost prepaid, properly addressed.

(1) An original and one (1) copy of any pleading, motion or other paper directed to the attention of the hearing officer that is filed between the date the Court appoints the hearing officer and the date the hearing officer files written findings of fact.

(2) An original and one (1) copy of a motion for extension of time, an appearance, a motion to withdraw appearance, a petition by the Commission for an order to show cause under Rule 23(10)(f), and a motion by the Commission to dismiss a show cause proceeding under Rule 23(10)(f).

~~(2)~~ (3) An original and five (5) copies of all other documents filed with the Clerk.

(d) Required Service. All documents tendered to the Clerk for filing must be served upon all parties or their counsel and the hearing officer, after one has been appointed.

(e) Time for Service. A party shall serve a document no later than the date the document is filed.

(f) Manner and Date of Service. Unless otherwise provided in this rule, all papers will be deemed served when they are:

(1) personally delivered;

(2) deposited in the United States Mail, postage prepaid, properly addressed; or

(3) deposited with any third-party commercial carrier for delivery within three (3) calendar days, cost prepaid, properly addressed.

(g) Certificate of Service. An attorney or unrepresented party tendering a document to the Clerk for filing shall certify that service has been made, list the parties or other served, and specify the date and means of service. The certificate of service shall be placed at the end of the documents and shall not be separately filed. The separate filing of a certificate of service, however, shall not be grounds for rejecting a document for filing. The Clerk may permit documents to be filed without a certificate of service but shall require prompt filing of a separate certificate of service.

~~(h) Time Calculation. If service is made by mail, an additional three (3) days shall be allowed for service of any responsive document.~~ Section 11.3. Computation of Time (a) Non-Business and Business Days. For purposes of this rule, a non-business day shall mean a Saturday, a Sunday, a legal holiday as defined by state statute, or a day the Office of the Clerk is closed during regular business hours. A business day shall mean all other days. (b) Counting Days. In computing any period of time allowed by these Rules, by order of the court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included unless it is a non-business day. If the last day is a non-business day, the period runs until the end of the next business day. When the time allowed is less than seven (7) days, all non-business days shall be excluded from the computation. (c) Extension of Time When Served by Mail or Carrier. When a party serves a document by-mail or third-party commercial carrier, the time period for filing any response or reply to the document shall be extended automatically for an additional three (3) days from the date of deposit in the mail or with the carrier. This Rule does not extend any time period that is not triggered by a party's service of a document, such as the time for filing a petition for review. Section 12. Prosecution of Grievances

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(b) An administrative admonition shall be issued in the form of a letter from the Executive Secretary to the respondent summarizing the facts and setting out the applicable violations of the Rules of Professional Conduct. A copy of the admonition letter shall first be sent to each Justice of the Supreme Court and to the ~~Division of State~~ Supreme Court Administration Office. The administrative admonition shall be final within thirty (30) days thereafter, unless set aside by the Court. If not set aside by the Court, the admonition shall be sent to the respondent, and notice of the fact that a respondent has received a private administrative admonition shall be given by the Executive Secretary to the grievant. The fact that an attorney has received a private administrative admonition shall be a public record, which shall be filed with the Clerk ~~of this Court~~ and shall be kept by the Executive Secretary.

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(e) Contemporaneously with the filing of the complaint, the Commission shall promptly prepare and furnish to the ~~clerk~~ Clerk as many copies of the complaint and summons as are necessary. The clerk Clerk shall examine, date, sign and affix his/her seal to the summons and thereupon issue and deliver the papers to the appropriate person for service. Separate or additional summons shall be issued by the ~~clerk~~ Clerk at any time upon proper request by the Commission.

(f) The summons shall contain:

(1) The name and address of the person on whom the service is to be effected;

(2) The Supreme Court cause number assigned to the case;

(3) The title of the case as shown by the complaint;

(4) The name, address, and telephone number of the Disciplinary Commission;

(5) The time within which this rule requires the person being served to respond, and a clear statement that in case of his or her failure to do so, the allegations in the complaint shall be taken as true.

The summons may also contain any additional information that will facilitate proper service.

(g) Upon the filing of such complaint, the summons and complaint shall be served upon the respondent by delivering a copy of them to the respondent personally or by sending a copy of them by registered or certified mail with return receipt requested and returned showing the receipt of the letter.

In the event the personal service or service by registered or certified mail cannot be obtained upon any respondent attorney, said summons and complaint shall be served on the Clerk ~~of this Court~~ as set forth ~~below~~ in Section 12(h) of this rule.

(h) Each attorney admitted to practice law in this State shall be deemed to have appointed the Clerk ~~of this Court~~ as his or her agent to receive service of any and all papers, processes or notices which may be called for by any provision of this rule. Such papers, process or notice may be served by filing the same with the Clerk ~~of this Court~~ as the agent for said attorney, together with an affidavit setting forth the facts necessitating this method of service. Upon receipt of such papers, process or notice together with such affidavit, the Clerk ~~of this Court~~ shall immediately mail such papers, process or notice to such attorney at the attorney's office address, or if unavailable the attorney's residence address, as shown upon the records of the Clerk ~~of this Court~~, and the Clerk shall ~~make an affidavit~~ file a written certification showing the mailing of such papers, process or notice to said attorney. Upon the completion of this procedure, said attorney shall be deemed to have been served with such papers, process or notice.

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Section 13. Hearing Officers

In addition to the powers and duties set forth in the rule, hearing officers shall have the power and duty to:

(a) Conduct a hearing on a complaint of misconduct ~~within sixty (60) days after the hearing officer is appointed and has qualified~~;

(b) Administer oaths to witnesses;

(c) Receive evidence and file a "Hearing Officer's Report" ~~make~~ making written findings of fact and conclusions of law ~~and recommendations to the Court~~; and

(d) Do all things necessary and proper to carry out their responsibilities under this rule.

Section 14. Proceedings Before the Hearing Officer

(a) The rules of pleading and practice in civil cases shall not apply. No motion to dismiss or dilatory motions shall be entertained. The case shall be heard on the complaint and an answer which shall be filed by the respondent within thirty (30) days after service of the summons and complaint, or such additional time as may be allowed upon written application to the hearing officer that sets forth good cause. A written application for enlargement of time to answer shall be automatically allowed for an additional thirty (30) days from the original due date without a written order of the Hearing Officer. Any motion for automatic enlargement of time filed pursuant to this rule shall state the date when such answer is due and the date to which time is enlarged. The motion must be filed on or before the original due date or this provision shall be inapplicable. All subsequent motions shall be so designated and shall be granted by the hearing officer only for good cause shown. An answer shall assert any legal defense. Six (6) copies of such answer shall be filed with the Court. A respondent may on a showing of good cause petition for a change of hearing officer within ten (10) days after the appointment of such hearing officer.

(b) The answer shall admit or controvert the averments set forth in the complaint by specifically denying designated averments or paragraphs or generally denying all averments except such designated averments or paragraphs as the respondent expressly admits. If the respondent lacks knowledge or information sufficient to form a belief as to the truth of an averment, he or she shall so state and his statement shall be considered a denial. If in good faith the respondent intends to deny only apart of an averment, he or she shall specify so much of it as is true and material and deny the remainder. All denials shall fairly meet the substance of the averments denied. Averments in a complaint are admitted when not denied in the answer. The answer ~~may~~ shall assert any legal defense. Six (6) copies of such answer shall bo filed with the Court. A respondent may on a showing of good cause petition for a change of hearing officer within (10) days after the appointment of such hearing officer.

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(f) Within thirty (30) days after the hearing officer is appointed and has qualified, the hearing officer shall schedule a date for a final hearing on the complaint, which date, absent good cause to the contrary, shall be within ninety (90) days of the same.

(fg) The grievant, the respondent, and the Commission shall be given not less than fifteen (15) days written notice of the hearing date. The respondent shall have the right to attend the hearing in person, to be represented by counsel, to cross-examine the witnesses testifying against him or her and to produce at the hearing and require the production of evidence and witnesses in his or her own behalf at the hearing, as in civil proceedings. All notices connected with processing of such complaint shall be issued only under the direction of the hearing officer or hearing officers, and no other court or judicial officer of this State shall have jurisdiction to issue any orders or processes in connection with a disciplinary complaint. Upon request of a party, the hearing officer may issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it or his or her attorney, who shall fill it in before service. The hearing officer may also authorize an attorney admitted to practice law in this state who has appeared for a party, as an officer of the court, to issue and sign such subpoena. Subpoenas for the attendance of witnesses and production of documentary evidence shall conform to the provisions of Trial Rule 45. The hearing officer or officers shall have authority to enforce, quash or modify subpoenas upon proper application by an interested party or witness.

(gh) The proceedings may be summary in form and shall be without the intervention of a jury and shall be ~~reported~~ conducted on the record.

(h i) Within thirty (30) days after the conclusion of the hearing, the hearing officer shall determine whether misconduct has been proven by clear and convincing evidence and shall ~~submit to the Supreme Court~~ file with the Clerk a written "Hearing Officer's Report" with findings of factand conclusions of law. Either party may request or the hearing officer at his or her own motion may make a recommendation concerning the disposition of the case and the discipline to be imposed. Such recommendation is not binding on the Supreme Court. A copy of the report ~~said findings and any recommendations~~ shall be served by the hearing officer on the respondent and the Executive Secretary of the Disciplinary Commission at the time ~~of filing same with the Supreme Court~~ the report is filed with the Clerk.

Section 15. Supreme Court Review

(a) The respondent or Commission shall have thirty (30) days after the filing of the h Hearing O officer's ~~finding and recommendation~~ Report to petition for a review of the same before the Supreme Court. Instead of a petition for review, the respondent or the Commission may file a brief on sanctions. If no petition for review or brief on sanctions is filed within thirty (30) days of the ~~finding and recommendation of the hearing officer~~ filing of the Hearing Officer's Report. the Supreme Court shall enter judgment or such other appropriate order ~~in the premises~~.

(b) In the event a party does not concur in a factual finding made by the hearing officer and asserts error in such finding in the petition for review, such party shall file with the petition for review a record of all the evidence before the hearing officer relating to this factual issue. Within thirty (30) days of the filing of the transcript, opposing parties may file such additional transcript as deemed necessary to resolve the factual issue so raised in the petition for review. Any transcript filed must be settled, signed and certified as true and correct by the hearing officer. The cost of procuring a transcript shall be borne by the party obtaining it for purposes of seeking review.

(c) The respondent or Commission may file a brief at the time a petition for review is filed. Opposing parties shall have thirty (30) days from the ~~filing~~ date of service of the petition for review or brief on sanctions to file a response brief. The party opposing a petition for review may raise in its brief any issues for review that were not raised in the brief of the party filing the petition for review. The party filing the petition for review or brief on sanctions shall then have fifteen (15) days from the date of service of the response brief to file a reply brief. The briefs filed under the provisions of this rule need not conform to the Rules of Appellate Procedure adopted by this Court.

Section 16. Expenses

The judgment of this Court imposing discipline will normally include an order that the respondent pay the costs and expenses of the proceeding. The Executive Secretary shall prepare an itemized statement of expenses allocable to each case, including expenses incurred by the Commission in the course of the investigatory, hearing or review procedures under this rule and costs attributable to the services of the hearing officer. The Executive Secretary shall include in the itemized statement of expenses a fee of one hundred dollars ($100) payable to the Clerk ~~of this Court~~, as reimbursement for the Clerk's processing of all papers in connection with the proceeding. Proceedings for the collection of the costs taxed against the respondent may be initiated by the Executive Secretary on the order approving expenses and costs entered by this Court. An attorney who fails to pay costs and expenses assessed pursuant to this section by the due date of the annual registration fee required by Admission and Discipline Rule 2(b) shall be subject to an order of suspension from the practice of law pursuant to Indiana Admission and Discipline Rule 2(h), and shall be reinstated only upon paying the outstanding costs and expenses and submitting to the Clerk a written application for reinstatement and payment of an administrative reinstatement fee of two hundred dollars ($200).

Section 17. Resignations and Consents to Discipline on Admission of Misconduct

(a) An attorney who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may resign as a member of the bar of this Court, or may consent to discipline, but only by delivering ~~to the Court~~ an affidavit and five copies to the Supreme Court Administration Office and providing a copy to the Commission. The affidavit shall state ~~stating~~ that the respondent desires to resign or to consent to discipline and that:

(1) The respondent's consent is freely and voluntarily rendered; he or she is not being subjected to coercion or duress; he or she is fully aware of the implications of submitting his or her consent;

(2) The respondent is aware that there is a presently pending investigation into, or proceeding involving, allegations that there exist grounds for his or her discipline the nature of which shall be specifically set forth;

(3) The respondent acknowledges that the material facts so alleged are true; and

(4) The respondent submits his or her resignation or consent because the respondent knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, he or she could not successfully defend himself or herself.

(b) Upon receipt of the required affidavit in support of resignation, this Court may enter an order approving the resignation. In the case of consent to discipline, the Commission and the respondent may file a brief regarding an appropriate sanction within thirty (30) days of delivery of the required affidavit. The Court shall then enter an order or imposing a disciplinary sanction on consent.

(c) Such An order entered under (b) above shall be a matter of public record. However, the affidavit required under the provisions of (a) above shall not be publicly disclosed or made available for use in any other proceeding except upon order of this Court.

Section 17.1. Termination of Probation

Unless otherwise provided in the order of probation, an attorney on probation at any time after 10 days prior to expiration of the period of probation may serve on the Executive Secretary (i) an affidavit showing successful compliance with all terms of probation, and (ii) an application for termination of probation. The Executive Secretary shall have ten (10) days after receipt to serve written objections on the attorney. Upon Service of any objection the probation shall continue until further ordered by the Court. If no objection has been served, termination shall be effective ten (10) days (or thirteen (13) days if the application is served by mail) after receipt by the Executive Secretary.

(a) Unless provided in the order of probation, disciplinary probation shall remain in effect until terminated pursuant to this rule or by Court order. (b) At any time after fifteen (15) days prior to expiration of a period of probation, an attorney on probation may file with the Clerk and shall serve on the Commission (i) a "Petition for Termination of Probation," and (ii) an affidavit by the attorney attesting to successful compliance with all terms of probation. (c) The Commission shall have fifteen (15) days after service of a petition for termination of probation to file with the Clerk and serve on the attorney an objection to the petition. If such an objection is filed, the order of probation and all related obligations shall continue until further order of the Court. The attorney shall have fifteen (15) days after service of an objection to file a response. The Commission shall have ten (10) days after service of a response to file a reply. (d) If no objection to a petition for termination of probation is filed, the petition shall be deemed granted with no further action required by the Court, effective fifteen (15) days after the petition was filed, and the Clerk shall adjust the attorney's status on the Roll of Attorneys to reflect that the attorney is no longer on probation.

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Section 17.2. Revocation of Probation

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(d) Disposition. After the time for filing an answer has expired, the Court may dispose of the matter on the pleadings and supportive materials or, in the event there are material factual disputes, may refer it to a hearing officer who shall hold a hearing on the revocation motion within fourteen (14) days of the date the hearing officer is appointed. The hearing officer shall file with the Clerk ~~of the Court~~ findings and a recommendation within ten (10) days of the hearing. Following receipt of the hearing officer's findings and recommendation, the Court shall enter an order granting or denying the revocation motion and entering an appropriate disposition consistent with the Court's ruling in the matter.

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Section 18. Petitions for Reinstatement.

(a) A person who has been suspended from the practice of law under the provisions of this rule, except pursuant to Section 11.1(c) of this rule, may apply for reinstatement by filing with the Clerk ~~of this Court~~ a petition conforming with the requirements of Section 4 of this rule. Nine (9) copies of such petition shall be filed with the Clerk ~~of this Court~~, together with a filing fee of five hundred dollars ($500.00).

A person who has been suspended pursuant to Section 11.1(c) of this rule may petition for reinstatement and pay a filing fee pursuant to subsection (c) of this section. If costs have been imposed as part of an order of suspension, those costs must be paid before any petition for reinstatement is filed.

Upon the filing of such petition and filing fee under this subsection, the commission shall schedule a hearing. After such hearing, the commission shall determine whether the petitioner has met the requirements set forth in Section 4 of this rule and may recommend that the Supreme Court enter an order continuing the suspension or reinstating the petitioner as a member of the Bar of this Court on such terms and conditions as the Supreme Court may deem proper. The applicant for reinstatement may petition this Court for a review of the recommendation of the Commission within thirty (30) days of the entry thereof.

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(c) An attorney suspended pursuant to Section 11.1(c) of this rule may be automatically reinstated by the Supreme Court upon filing a petition for reinstatement and presenting therewith a certified copy of a court order stating that the attorney is no longer in intentional violation of an order for child support. Nine (9) copies of such petition shall be filed with the Clerk ~~of this Court~~ together with a filing fee of two hundred dollars ($200).

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Section 19. Assistance of Law Enforcement Agencies and to Lawyer Disciplinary Agencies in Other Jurisdictions

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(b) The Supreme Court may order a person domiciled or found within this state to give testimony or a statement or to produce documents or other things for use in an lawyer attorney discipline or disability proceeding in another state. The order may be made upon the application of any interested person or in response to a letter rogatory, and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of a tribunal outside this state, for the taking of the testimony or statement or producing the documents or other things. To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with the applicable provisions of the Indiana Rules of Trial Procedure. The order may direct that the testimony or statement be given, or document or other thing be produced, before a person appointed by the Court. A person may be required to give testimony or a statement only in the county wherein he or she resides or is employed or transacts business in person, or at such other convenient place as is fixed in the order. The person appointed shall have the power to administer any necessary oath. Any order to testify or to produce documents or other things issued as prescribed in this subsection may be enforced in the circuit court of the county wherein the person commanded to appear is domiciled, upon petition of any party interested in the subject attorney discipline or disability proceeding.

Section 20. Immunity

Each person shall be absolutely immune from civil suit for all of his or her ~~sworn~~ oral or written statements, ~~made without malice, and~~ intended for transmittal either: a) to the Commission, the Executive Secretary, or the Commission staff, or made in the course of investigatory, hearing or review proceedings under this rule; or b) to a Lawyers Assistance Program approved by the Supreme Court. ~~Sworn~~ Oral or written statements made to others which are not intended for such transmittal have no immunity under this Section. The Executive Secretary, his staff, counsel, investigators, hearing officers, and the commissioners shall be immune from suit for any conduct arising out of the performance of their duties.

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Section 22. Public Disclosure

(a) Except as provided in Section 22(b), after a verified complaint has been filed with the Court, all proceedings, except for adjudicative deliberations, and all papers filed of record with the Clerk shall be open and available to the public. Proceedings and papers that relate to matters that have not resulted in the filing of a verified complaint shall not be open and available to the public. Investigative reports and other work product of the Executive Secretary or his or her agents, and statements of circumstances conditionally agreeing to discipline submitted pursuant to Section 11(c), shall be confidential and not open to public inspection.

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Section 28. Discipline Imposed by Other Jurisdictions

(a) Within fifteen (15) days of the issuance of any final order in another jurisdiction imposing a public disciplinary sanction, an ~~lawyer~~ attorney admitted to practice in this state shall notify the Executive Secretary in writing of the discipline. Upon notification from any source that an lawyerattorney admitted to practice in Indiana has been publicly disciplined in another jurisdiction, the Executive Secretary shall obtain a certified copy of the order of discipline.

(b) Upon receipt of a certified copy of an order demonstrating that an~~lawyer~~ attorney admitted to practice in Indiana has been disciplined in another jurisdiction, resulting in suspension or revocation of the lawyerattorney's license to practice law in that jurisdiction, disbarment or acceptance of resignation with an admission of misconduct, the Executive Secretary shall file a notice with the Court, attaching a certified copy of the order of discipline, and request the issuance of an order to the Executive Secretary and the lawyerattorney directing them to show cause in writing within thirty (30) days from service of the order why the imposition of ~~identical~~ reciprocal discipline in this state would be unwarranted.

(c) Upon the expiration of thirty (30) days from service of the order set out in subsection (b), this Court shall ~~impose discipline identical to that ordered in the other jurisdiction~~ suspend the attorney from the practice of law in this state indefinitely unless the Executive Secretary or the ~~lawyer~~ attorney demonstrate, or this Court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:

(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;

(2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duty, accept as final the conclusion on that subject;

(3) The imposition of ~~the same discipline~~ suspension by the Court would be inconsistent with standards governing sanctions in this rule or would result in grave injustice; or

(4) The misconduct established warrants substantially different discipline in this state.

If this Court determines that any of those elements exists, this Court shall enter such other order of discipline as it deems appropriate. The burden is on the party seeking different discipline in this state to demonstrate that the imposition of the same discipline is unwarranted.

(d) In all other aspects, a final adjudication in another jurisdiction that an ~~lawyer~~ attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.

(e) An attorney suspended under this section may file a "Motion for Reinstatement" in this state only after the attorney is reinstated to the practice of law in the jurisdiction that imposed the discipline and after the attorney has paid all costs assessed by the Court against him or her. However, regardless of the attorney's date of reinstatement in the foreign jurisdiction, the attorney's suspension in this state shall not be lifted until the attorney has been suspended at least as long as the attorney was suspended in the foreign jurisdiction.

(1) The suspension in this state shall be deemed to begin on the date the foreign suspension begins only if the attorney promptly notifies the Commission of the foreign suspension and states that the attorney has suspended his or her practice in Indiana as of the date the foreign suspension began.

(2) The motion for reinstatement shall be verified, shall be accompanied by certified proof of reinstatement in the foreign jurisdiction, and shall state the length of time the attorney was suspended in the foreign jurisdiction and the date on which the length of the attorney's Indiana suspension equals the length of the attorney's foreign suspension.

(3) The Court may grant the motion without appointment of a hearing officer, and the provisions of Admission and Discipline Rules 23(4) and (18) shall not apply.

(4) If the attorney's reinstatement in the foreign jurisdiction is subject to terms of probation, the attorney's reinstatement in Indiana shall be subject to compliance with those terms as determined by the disciplinary authorities in the foreign jurisdiction.

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Section 30. Audits of Trust Accounts

(a) Generally. Whenever the Executive Secretary has probable cause to believe that a trust account of an attorney contains, should contain, or has contained funds belonging to a client that have not been properly maintained or properly handled pursuant to Section 2829, the Executive Secretary shall request the approval of the Commission to audit the accuracy and integrity of all trust accounts maintained by the attorney. In the event that the Commission approves, the Executive Secretary shall proceed to audit the accounts.

(b) Confidentiality. Investigations, examinations, and audits shall be conducted so as to preserve the private and confidential nature of the attorney's records insofar as is consistent with these rules.

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Rule 25. Judicial Disciplinary Proceedings

Preamble. The regulation of judicial conduct is critical to the integrity of the judiciary and to public confidence in the judicial system. The purpose of this rule is to provide a mechanism for the discipline of judicial officers of the State of Indiana.

I. Jurisdiction.

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E. The Commission shall have jurisdiction over violations of Canon 5_4 of the Code of Judicial Conduct committed by a candidate for judicial office.

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Rule 26. Group Legal Service Plans

(A) A "group legal service plan" is a plan or arrangement by which legal services are rendered (1) to individual members of a group identifiable in terms of substantial common interest; (2) by a lawyer provided, secured, recommended or otherwise selected by: (a) the group, its organization, or its officers; (b) some other agency having an interest in obtaining legal services for members of the group; or (c) the individual members. Not-for-profit legal services programs funded through governmental appropriations are excluded from this rule.

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(B) A lawyer may not render legal services pursuant to a group service plan unless the following conditions have been satisfied:

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(3) A copy of the group legal service plan has been filed with the Clerk of the Supreme Court and Court of Appeals together with a one hundred dollar ($100) filing fee; and

(4) The requirements, as appropriate, for an initial disclosure statement or annual report have been met.

Rule 27. Professional Corporations, Limited Liability Companies and Limited Partnerships

Section 1. General Provisions. One or more lawyers may form a professional corporation, limited liability company or a limited liability partnership for the practice of law under Indiana Code 23-1.5-1, IC 23-18-1 and IC 23-4-1, respectively.

(a) The name of the professional corporation, limited liability company or limited liability partnership shall contain the surnames of some of its members, partners or other equity owners followed by the words "Professional Corporation," "PC," "P.C.," "Limited Liability Company," "L.L.C.," "LLC," "Limited Liability Partnership," "L.L.P.," or "LLP," as appropriate. Such a professional corporation, limited liability company, or limited liability partnership shall be permitted to use as its name the name or names of one or more deceased or retired members of a predecessor law firm in a continuing line of succession, subject to Rule of Professional Conduct 7.2.

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Section 2. Applications for Registration

(i a) Lawyers seeking to organize or practice by means of a professional corporation, limited liability company or limited liability partnership shall submit an obtain applications for a certificate of registration ~~to do so and instructions for preparing and submitting these applications from~~ to the State Board of Law Examiners. (b) The Board of Law Examiners shall publish instructions for submission of the application and a prescribed form for use by all lawyers seeking to organize under this Rule. The application shall include, at a minimum, the following: ~~Applications shall be upon a form prescribed by the State Board of Law Examiners.~~

(1) Two copies of the application for a certificate of registration shall be delivered to the State Board of Law Examiners; and, ~~accompanied by a~~

(2) A registration fee of two hundred dollars ($200.00), plus ten dollars ($10.00) for each officer, director, shareholder, member, partner, other equity owner or lawyer employee licensed to practice law in Indiana of the professional corporation, limited liability company or limited liability partnership; and,

(3) T ~~two~~ copies of a certification of the Clerk of the Supreme Court and Court of Appeals of Indiana that each officer, director, shareholder, member, partner, other equity owner or lawyer employee who will practice law in Indiana holds an unlimited license to practice law in Indiana;, and,

(4) T two copies of a certification of the Indiana Disciplinary Commission that each officer, director, shareholder, member, partner, other equity owner or lawyer employee licensed to practice in Indiana has no disciplinary complaints pending against him or her and if he or she does, what the nature of each such complaint is; and.

(5) ~~Applications must be accompanied by f~~ Four copies of the Articles of Incorporation, Articles of Organization or Registration of the professional corporation, limited liability company or limited liability partnership with appropriate fees for the Secretary of State. All form are to be filed with the State Board of Law Examiners.

(c) Upon receipt of such application form and fees, the State Board of Law Examiners shall make an investigation of the professional corporation, limited liability company or limited liability partnership in regard to finding that all officers, directors, shareholders, members, partners, other equity owners, managers of lawyer employees licensed to practice law in Indiana are each duly licensed to practice law in Indiana and that all hereinabove outlined elements of this Rule have been fully complied with, and the Clerk of the Supreme Court and Court of Appeals shall likewise certify this fact. The Executive Secretary of the Indiana Disciplinary Commission shall certify whether a disciplinary action is pending against any of the officers, directors, shareholders, members, partners, other equity owners, managers or lawyer employees licensed to practice in Indiana. If it appears that no such disciplinary action is pending and that all officers, directors, shareholders, members, partners, other equity owners, managers of lawyer employees required to be are duly licensed to practice law in Indiana are, and that all hereinabove outlined elements of this Rule have been fully complied with, the Board shall issue a certificate of registration which will remain effective until ~~January 1st~~ June 30 ^th of the year following the date of such registration.

Section 3. Renewal of Certificate of Registration; Fees (a) A certificate of registration shall continue in force for one year (July 1 thru the following June 30), and may be renewed for a like period upon the submission of such verified information to the Board of Law Examiners as will demonstrate Upon written application of the holder, upon a form prescribed by the State Board of Law Examiners, accompanied by a fee of fifty dollars ($50.00), the Executive Director of the Board shall annually renew the certificate of registration, if the Board finds that the professional corporation, limited liability company or limited liability partnership has complied with the provisions of the statute under which it was formed and this Rule.

(b) ~~Such application for renewal shall be filed each year on or before November 30th.~~ Each professional corporation, limited liability company or limited liability partnership formed pursuant to this Rule shall pay a renewal fee of fifty dollars ($50.00) on or before June 30 of each year; a delinquent fee in the amount of twenty-five dollars ($25.00) shall be added to the renewal fee for fees paid after June 30 and on or before July 15 of each year; a delinquent fee in the amount of fifty dollars ( $50.00) shall be added to the renewal fee for fees paid after July 15 and on or before August 31 of each year; a delinquent fee in the amount of one hundred fifty dollars ($150.00) shall be added to the renewal fee for fees paid after August 31 of each year. Additionally, a one hundred dollar ($100.00) surcharge will be added to the late fee for each consecutive year for which the attorney fails to timely file the renewal form. This renewal fee is in addition to any annual registration and fees paid under Rule 2 and/or Rule 6. Section 4. Registration of Changes; Fees (a) Within ~~ten~~ thirty (10 30) days after any change in the officers, directors, shareholders, members, partners, other equity owners or lawyer employees licensed to practice in Indiana, a written listing setting forth the names and addresses of each shall be filed with the State Board of Law Examiners with a fee of ten dollars ($10.00) for each new person listed.

(b) A delinquent fee of ten dollar ($10.00) for each new person listed shall be added to the Registration Change Fee for fees paid after the 30^th day. Additionally, a twenty-five dollar ($25.00) surcharge will be added to the late fee for each consecutive time for which the Registration of Changes fails to be timely filed. This Registration of Changes fee is in addition to any annual registration and fees paid under Rule 2. Rule 6 or otherwise in this Rule. (c) Copies of any amendments to the Articles of Incorporation, Articles of Organization or Registration of the professional corporation, limited liability company or limited liability partnership thereafter filed with the Secretary of State's office shall also be filed with the State Board of Law Examiners. Section 5. Failure to Pay Renewal Fee; Revocation of Certificate of Registration (a) Any lawyer practicing under a certificate of registration who fails to pay the renewal fee required under Section 3(b) or fails to file the affidavit required under Section 7 shall be subject to revocation of the certificate of registration and sanctions for contempt of this Court in the event he or she thereafter engages in the practice of law under the professional corporation, limited liability company or limited liability partnership in this State. (b) Any lawyer whose certificate of registration has been revoked pursuant to this provision and wishes to engage in the practice of law under the professional corporation, limited liability company or limited liability partnership in this State may apply for a new certificate of registration pursuant to Section 2 of this Rule. Section 6. Annual Renewal Notice. On or before May 1 of each year, the Executive Director of the State Board of Law Examiners shall mail a notice to each professional corporation, limited liability company or limited liability partnership registered pursuant to this Rule that (i) a renewal fee must be paid on or before June 30; and (ii) the attorney must (a) affirm continued compliance with this Rule to maintain the certificate of registration or (b) submit the signed relinquish affidavit to the State Board of Law Examiners on or before June 30. Notice sent pursuant to this section shall be sent to the name and address maintained by the Clerk of the Supreme Court pursuant to Admission Discipline Rule 2 for the attorney listed as the registered agent pursuant to the records previously filed with the State Board of Law Examiners. Section 7. Relinquishing of Certificate of Registration. Any lawyer who is registered to practice law pursuant to this Rule who is current in payment of all applicable registration fees and other financial obligations imposed by this rule who no longer is able to meet the requirements to maintain such registration or who no longer practices under the professional corporation, limited liability company or limited liability partnership may voluntarily relinquish his or her certificate of registration by tendering a signed relinquish affidavit to the Executive Director of the State Board of Law Examiners no later than June 30 of the reporting year (July 1 through June 30). The Executive Director shall promptly verify the eligibility of the lawyer to relinquish the certificate of registration under this section and if eligible, forward a notice of the relinquishment to the Secretary of State. In the event that the lawyer is not eligible to relinquish under this section, the Executive Director shall promptly notify the lawyer of all reasons for ineligibility.

These amendments shall take effect January 1, 2010.

Thomson Reuters is directed to publish this Order in the advance sheets of this Court.

The Clerks of the Circuit Courts are directed to bring this Order to the attention of all judges within their respective counties and to post this Order for examination by the Bar and general public.

DONE at Indianapolis, Indiana, this 15 ^th day of September, 2009.

SHEPARD, C.J. and SULLIVAN and BOEHM, JJ concur.

DICKSON, J. concurs except as to Admission and Discipline Rule 23 § 20 from which he dissents.

RUCKER, J. concurs except as to Admission and Discipline Rules 2 and 23 § 20 from which he dissents.

ORDER AMENDING INDIANA CHILD SUPPORT RULES AND GUIDELINES

This Court finds after lengthy study, consultation with an expert, a public hearing, and public comment on a proposed draft, and with the cooperation of the Department of Child Services, Child Support Bureau, the Domestic Relations Committee of the Indiana Judicial Conference has proposed amendments to the Indiana Child Support Rules and Guidelines previously adopted by this Court. Under the authority vested in this Court to provide by rule for the procedure employed in all courts of this state and this Court's inherent authority to supervise the administrative procedures of all courts and to direct trial courts in implementing and applying applicable statutes, the Indiana Child Support Rules and Guidelines, the Child Support Obligation Worksheet, Guideline Schedules for Weekly Support Payments and Health Insurance Premium Worksheet are amended to read as follows (deletions shown by ~~striking~~ and new text shown by underlining):

INDIANA CHILD SUPPORT RULES AND GUIDELINES CHILD SUPPORT RULES

Rule s

~~Support Rule~~ 1. Adoption of Child Support Rules and Guidelines ~~Support Rule~~ 2. Presumption ~~Support Rule~~ 3. Deviation from Guideline Amount

Guidelines

1. Preface. 2. Use of the Guidelines. 3. Determination of Child Support Amount.

A. Definition of Weekly Gross Income.

1. Definition of Weekly Gross Income.

2. Self-Employment, Business Expenses, In-Kind Payments and Related Issues.

3. Unemployed, Underemployed, and Potential Income.

4. Natural and Adopted Children Livein in the Household.

B. Income Verification.

1. Submitting Worksheet to Court.

2. Documenting Income.

C. Computation of Weekly Adjusted Income.

1. Adjustment for Subsequent bom or Adopted Child(ren.)

2. Court Orders for Prior-born Child(ren).

3. Legal Duty of Support for Prior-born Children.

4. Alimony or Maintenance From Prior Marriage

D. Basic Child Support Obligation.

E. Additions to the Basic Child Support Obligation.

1. Work-Related Child Care Expense

2. Cost of Health Insurance For Child(ren)

3. Extraordinary Health Care Expense.

4. Extraordinary Educational Expense

F. Computation of Parent's Child Support Obligation.

1. Division of Obligation Between Parents.

2. Deviation from Guideline Amount.

G. Adjustments to Parent's Child Support Obligation.

1. Obligation From Post-Seconday Education Worksheet

2.Weekly Cost of Work-related Child Care Expenses.

3. Weekly Cost of Health Insureance Premiums For Child(ren).

4. Parenting Time Credit.

5. Effect of Social Security Benefits.

4. Modification. 5. Federal Statutes. 6. ~~Additional Commentary~~ Parenting Time Credit. 7. Health Care/Medical Support.

Accessibility

Reasonable cost

Cash medical support

Explanation of 6% rule/uninsured health care expenses

Birth expense

8. Extraordinary Expenses.

Extraordinary Educational Expenses

Other Extraordinary Expenses

9. Accountability, Tax Exemptions, and Rounding Child Support Amounts.

Accountability of the Custodial Parent for Support Received

Tax Exemptions

Rounding Child Support Amounts

Amended Child Support Obligation Worksheet (CSOW)

Parenting Time Credit Worksheet

Post-Secondary Education Worksheet (PSEW)

New Health Insurance Premium Worksheet (HIPW)

Amended Guideline Schedules for Weekly Support Payments

CHILD SUPPORT RULES

Support Rule 1. Adoption of Child Support Rules and Guidelines

The Indiana Supreme Court hereby adopts the Indiana Child Support Guidelines ~~(Third Edition, 1989)~~, as drafted by the Judicial Administration Committee and adopted by the Board of the Judicial Conference of Indiana and all subsequent amendments thereto presented by the Domestic Relations Committee of the Judicial Conference of Indiana, as the child support rules and guidelines of this Court.

Support Rule 2. Presumption

In any proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded.

Support Rule 3. Deviation from Guideline Amount

If the court concludes from the evidence in a particular case that the amount of the award reached through application of the guidelines would be unjust, the court shall enter a written finding articulating the factual circumstances supporting that conclusion.

INDIANA CHILD SUPPORT GUIDELINES GUIDELINE 1. PREFACE

Guidelines to determine levels of child support were developed by the Judicial Administration Committee of the Judicial Conference of Indiana and adopted by the Indiana Supreme Court. The guidelines are consistent with the provisions of Indiana Code Title 31 which place a duty for child support upon parents based upon their financial resources and needs, the standard of living the child would have enjoyed had the marriage not been dissolved or had the separation not been ordered, the physical or mental condition of the child, and the child's educational needs.

The Guidelines have three objectives:

(1) To establish as state policy an appropriate standard of support for children, subject to the ability of parents to financially contribute to that support;

(2) To make awards more equitable by ensuring more consistent treatment of people in similar circumstances; and

(3) To improve the efficiency of the court process by promoting settlements and giving courts and the parties guidelines in settling the level of awards.

The Indiana Child Support Guidelines are based on the Income Shares Model, developed by the Child Support Project of the National Center for State Courts. The Income Shares Model is predicated on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together. Because household spending on behalf of children is intertwined with spending on behalf of adults for most expenditure categories, it is difficult to determine the proportion allocated to children in individual cases, even with exhaustive financial information. However, a number of authoritative economic studies provide estimates of the average amount of household expenditure on children in intact households. These studies have found the proportion of household spending devoted to children is related to the level of household income and to the number and ages of children. The Indiana Child Support Guidelines relate the level of child support to income and the number of children. In order to provide simplicity in the use of the Guidelines, however, child support figures reflect a blend of all age categories weighted toward school age children.

Based on this economic evidence, the Indiana Child Support Guidelines calculate child support as the share of each parent's income estimated to have been spent on the child if the parents and child were living in an intact household. The calculated amount establishes the level of child support for both the custodial and non-custodial parent. Absent grounds for a deviation, the custodial parent should be required to make monetary payments of child support, if application of the parenting time credit would so require. If one parent has custody, the amount calculated for that parent is presumed to be spent directly on the child. For the noncustodial parent, the calculated amount establishes the level of child support.

COMMENTARY

History of Development. In June of 1985, the Judicial Reform Committee (now the Judicial Administration Committee) of the Judicial Conference of Indiana undertook the task of developing child support guidelines for use by Indiana judges. While the need had been long recognized in Indiana, the impetus for this project came from federal statutes requiring guidelines to be in place no later than October 1, 1987. P.L. 98-378. Paradoxically, guidelines did not need to be mandatory under the 1984 federal legislation to satisfy federal requirements; they were only required to be made available to judges and other officials with authority to establish child support awards. 45 CFR Ch. III, § 302.56. The final draft was completed by the Judicial Reform Committee on July 24, 1987, and was presented to the Judicial Conference of Indiana Board of Directors on September 17, 1987. The Board accepted the report of the Reform Committee, approved the Guidelines and recommended their use to the judges of Indiana in all matters of child support. Family Support Act of 1988. On October 13, 1988, the United States Congress passed the "Family Support Act of 1988," P.L. 100-485 amending the Social Security Act by deleting the original language which made application of the guideline discretionary and inserted in its place the following language:

"There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case." P.L. 100-485, § 103(a)(2).

The original Guidelines that went into effect October 1, 1987 and their commentary were revised by the Judicial Administration Committee to reflect the requirement that child support guidelines be a rebuttable presumption. The requirement applies to all cases where support is set after October 1, 1989, including actions brought under Title IV-D of the Social Security Act (42 U.S.C.A. § 651-669). Also, after October 1, 1989, counties and individual courts may not opt to use alternate methods of establishing support. The Indiana Child Support Guidelines were required to be in use in all Indiana courts in all proceedings where child support is established or modified on and after October 1, 1989. Periodic Review of Guidelines and Title IV-D Awards. The "Family Support Act of 1988" also requires that the Guidelines be reviewed at least every four years "to assure their application results in the determination of appropriate child support award amounts." P.L. 100-485, § 103(b). Further, each state must develop a procedure to ensure that all Title IV-D awards are periodically reviewed to ensure that they comply with the Guidelines. P.L. 100-485, § 103(c).

Compliance With State Law. The Child Support Guidelines were developed specifically to comply with federal requirements, as well as Indiana law. Objectives of the Indiana Child Support Guidelines. The following three objectives are specifically articulated in the Indiana Child Support Guidelines:

1. To establish as state policy an appropriate standard of support for children, subject to the ability of parents to financially contribute to that support. When the Guidelines were first recommended for use by the Indiana Judicial Conference on September 17, 1987, many courts in the state had no guideline to establish support. Many judges had expressed the need for guidelines, but few had the resources to develop them for use in a single court system. The time, research and economic understanding necessary to develop meaningful guidelines were simply beyond the resources of most individual courts. 2. To make awards more equitable by ensuring more consistent treatment of people in similar circumstances. This consistency can be expected not only in the judgments of a particular court, but between jurisdictions as well. What is fair for a child in one court is fair to a similarly situated child in another court. 3. To improve the efficiency of the court process by promoting settlements and giving courts and the parties guidelines in settling the level of awards. In other words, when the outcome is predictable, there is no need to fight. Because the human experience provides an infinite number of variables, no guideline can cover every conceivable situation, so litigation is not completely forestalled in matters of support. If the guidelines are consistently applied, however, those instances should be minimized. Economic Data Used in Developing Guidelines. What does it take to support a child? The question is simple, but the answer is extremely complex. Yet, the question must be answered if an adequate amount of child support is to be ordered by the court. Determining the cost attributable to children is complicated by intertwined general household expenditures. Rent, transportation, and grocery costs, to mention a few, are impossible to accurately apportion between family members. In developing these Guidelines, a great deal of reliance was placed on the research of Thomas J. Espenshade, (Investing In Children, Urban Institute Press, 1984) generally considered the most authoritative study of household expenditure patterns. Espenshade used data from 8,547 households and from that data estimated average expenditures for children present in the home. Espenshade's estimates demonstrate that amounts spent on the children of intact households rise as family income increases. They further demonstrate at constant levels of income that expenditures decrease for each child as family size increases. These principles are reflected in the Guideline Schedules for Weekly Support Payments, which are included in the Indiana Child Support Guidelines. By demonstrating how expenditures for each child decrease as family size increases, Espenshade should have put to rest the previous practice of ordering equal amounts of support per child when two or more children are involved. Subsequent guidelines reviews have considered more current economic studies of child-rearing expenditures (e.g., Mark Lino, Expenditures on Children by Families: 2006 Annual Report. United States Department of Agriculture, 2007; David Betson, State of Oregon Child Support Guidelines Review: Updated Obligation Scales and Other Considerations, report to State of Oregon Department of Justice, 2006). These periodic guidelines reviews have concluded that the Indiana Guidelines based on the Espenshade estimates are generally within the range of more current estimates of child-rearing expenditures. A notable exception at high incomes leveled off the child support schedule for combined weekly adjusted incomes above $4,000. In 2009 this exception was removed. The increase is now incorporated into the schedule up to combined weekly adjusted incomes of $10,000 and a formula is provided for incomes above that amount. Previously, a formula was provided for combined weekly adjusted incomes above $4,000. Income Shares Model. After review of five approaches to the establishment of child support, the Income Shares Model was selected for the Indiana Guidelines. This model was perceived as the fairest approach for children because it is based on the premise that children should receive the same proportion of parental income after a dissolution that they would have received if the family had remained intact. Because it then apportions the cost of children between the parents based on their means, it is also perceived as being fair to parents. In applying the Guidelines, the following steps are taken:

1. The gross income of both parents is added together after certain adjustments are made. A percentage share of income for each parent is then determined.

2. The total is taken to the support tables, referred to in the Indiana Guidelines as the Guideline Schedules for Weekly Support Payments, to determine the total cost of supporting a child or children.

3. Work-related child care expenses and the weekly costs of health insurance premiums for the child(ren) are then added to the basic child support obligation.

4. The child support obligation is then prorated between the parents, based on their proportionate share of the weekly adjusted income, hence the name "income shares."

The Income Shares Model was developed by The Institute for Court Management of the National Center for State Courts under the Child Support Guidelines Project. This approach was designed to be consistent with the Uniform Marriage and Divorce Act, the principles of which are consistent with IC 31-16-6-1. Both require the court to consider the financial resources of both parents and the standard of living the child would have enjoyed in an intact family. Gross Versus Net Income. One of the policy decisions made by the Judicial Administration Committee in the early stages of developing the Guidelines was to use a gross income approach as opposed to a net income approach. Under a net income approach, extensive discovery is often required to determine the validity of deductions claimed in arriving at net income. It is believed that the use of gross income reduces discovery. (See Commentary to Guideline 3A.) While the use of gross income has proven controversial, this approach is used by the majority of jurisdictions and, after a thorough review, is considered the best reasoned. The basic support obligation would be the same whether gross income is reduced by adjustments built into the Guidelines or whether taxes are taken out and a net income option is used. A support guideline schedule consists of a column of income figures and a column of support amounts. In a gross income methodology, the tax factor is reflected in the support amount column, while in a net income guideline, the tax factor is applied to the income column. In devising the Indiana Guidelines, an average tax factor of 21.88 percent was used to adjust the support column. Of course, taxes vary for different individuals. This is the case whether a gross or net income approach is used. Under the Indiana Guideline, where taxes vary significantly from the assumed rate of 21.88 percent, a trial court may choose to deviate from the guideline amount where the variance is substantiated by evidence at the support hearing. Flexibility Versus the Rebuttable Presumption. Although application of the Guideline yields a figure that becomes a rebuttable presumption, there is room for flexibility. Guidelines are not immutable, black letter law. A strict and totally inflexible application of the Guidelines to all cases can easily lead to harsh and unreasonable results. If a judge believes that in a particular case application of the Guideline amount would be unreasonable, unjust, or inappropriate, a finding must be made that sets forth the reason for deviating from the Guideline amount. The finding need not be as formal as Findings of Fact and Conclusions of Law; the finding need only articulate the judge's reasoning. For example, if under the facts and circumstances of the case, the noncustodial parent would bear an inordinate financial burden, the following finding would justify a deviation:

"Because the noncustodial parent suffers from a chronic medical condition requiring uninsured medical expenses of $357.00 per month, the Court believes that setting child support in the Guideline amount would be unjust and instead sets support in the amount of $___ per week." Agreed Orders submitted to the court must also comply with the "rebuttable presumption" requirement; that is, the order must recite why the order deviates from the Guideline amount.

1. Phasing in Support Orders. Some courts may find it desirable in modification proceedings to gradually implement the Guideline order over a period of time, especially where support computed under the Guideline is considerably higher than the amount previously paid. Enough flexibility exists in the Guidelines to permit that approach, as long as the judge's rationale is explained with an entry such as: "The Guideline's support represents an increase of 40%, and the court finds that such an abrupt change in support obligation would render the obligor incapable of meeting his/her other established obligations. Therefore, the Court sets support in the amount of $_____ and, on October 1, 19 20___, it shall increase to $_____ and, on September 1, 19 20__, obligor shall begin paying the Guideline amount of $_____."

2. Situations Calling for Deviation. An infinite number of situations may prompt a judge to deviate from the Guideline amount. For illustration only, and not as a complete list, the following examples are offered:

• One or both parties pay union dues as a condition of employment.

• A party provides support for an elderly parent.

• The noncustodial parent purchases school clothes.

• The noncustodial parent has extraordinary medical expenses for himself or herself.

• Both parents are members of the armed forces and the military provides housing.

• The obligor is still making periodic payments to a former spouse pursuant to a prior Dissolution Decree.

• One of the parties is required to travel an unusually long distance in the course of employment on a regular or daily basis and incurs an unusually large expense for such travel, and

• The custodial or noncustodial parent incurs significant travel expense in exercising visitation.

Again, no attempt has been made to define every possible situation that could conceivably arise when determining child support and to prescribe a specific method of handling each of them. Practitioners must keep this in mind when advising clients and when arguing to the court. Many creative suggestions will undoubtedly result. Judges must also avoid the pitfall of blind adherence to the computation for support without giving careful consideration to the variables that require changing the result in order to do justice.

GUIDELINE 2. USE OF THE GUIDELINES

The Guideline Schedules provide calculated amounts of child support. For obligors with a combined weekly adjusted income, as defined by these Guidelines, of less than $100.00, the Guidelines provide for case-by-case determination of child support. When a parent has extremely low income the amount of child support recommended by use of the Guidelines should be carefully scrutinized., ~~normally with a range of $25.00-$50.00 weekly. In such cases, the Court should carefully review~~ The court should consider the obligor's income and living expenses to determine the maximum amount of child support that can reasonably be ordered without denying the obligor the means for self-support at a minimum subsistence level. The court may consider $12.00 as a minimum child support order; however, there are situations where a $0.00 support order is appropriate. A ~~specific~~ numeric amount of child support ~~should always~~ shall be ordered.

~~The Guideline Schedules provide calculated amounts of child support to a combined weekly adjusted income level of 4,000 dollars ($4,000.00) or 208,000 dollars ($208,000.00) per~~ ~~year. For cases with higher combined weekly adjusted income, child support should be determined by using the formula found in Commentary to Guideline 3D3.~~

Temporary maintenance may be awarded by the court not to exceed thirty-five percent (35%) of the obligor's weekly adjusted income. In no case shall child support and temporary maintenance exceed fifty percent (50%) of the obligor's weekly adjusted income. Temporary maintenance and/or child support may be ordered by the court either in dollar payments or "in-kind" payments of obligations.

~~It is also intended that~~ T these guidelines are to be used in paternity cases and all other child support actions.

Commentary

Minimum Support. The Guideline's schedules for weekly support payments do not provide an amount of support for couples with combined weekly adjusted income of less than $100.00. Consequently the Guidelines do not establish a minimum support obligation. Instead the facts of each individual case must be examined and support set in such a manner that the obligor is not denied a means of self-support at a subsistence level. For example, (1) a parent who has a high parenting time credit; (2) a parent who suffers from debilitating mental illness (3) a parent caring for a disabled child, (4) an incarcerated parent, (5) a parent or a family member with a debilitating physical health issue, or (6) a natural disaster are significant but not exclusive factors for the Court to consider in setting a child support order. The court should not automatically attribute minimum wage to parents who, for a variety of factors, are not capable of earning minimum wage. Where parents live together with the child and share expenses, a child support worksheet shall be completed and a $0.00 order may be entered as a deviation. ~~It is, however~~ , recommended that a specific amount of support be set. Even in situations where the noncustodial parent has no income, courts have routinely established a child support obligation at some minimum level. An obligor cannot be held in contempt for failure to pay support when there is no means to pay, but the obligation accrues and serves as a reimbursement if the obligor later acquires the ability to meet the obligation. Economic data indicate one hundred dollars, which is half of the 2008 federal poverty level for one person, is not sufficient for a person to live at a subsistence level today. The prior obligation amounts at combined incomes of $100.00 per week are $25.00 per week for one child and $50 per week for two children. These amounts absorb 25 and 50 percent, respectively, of the parents' gross income. Most states set their minimum child support order at $50.00 per month, which is about $12.00 per week. Therefore, the revised low-income adjustment sets the obligation amount for combined weekly incomes of $100.00 at $12.00 for one child. Income in Excess of Guideline Schedule. The Guidelines Schedules for Weekly Support Payments provide calculations for the basic support obligation to a combined weekly adjusted income of $4,000.00 or annual adjusted income of $208,000.00. The formula for computing support, when combined annual adjusted income is above $208,000.00, is contained in Commentary to Guideline 3D3. Temporary Maintenance. It is recommended that temporary maintenance not exceed thirty-five percent (35%) of the obligor's weekly adjusted income. The maximum award should be reserved for those instances where the custodial spouse has no income or no means of support, taking into consideration that spouse's present living arrangement (i.e., whether or not he or she lives with someone who shares or bears the majority of the living expense, lives in the marital residence with little or no expense, lives in military housing, etc.).

It is further recommended that the total of temporary maintenance and child support should not exceed fifty percent (50%) of the obligor's weekly adjusted income. In computing temporary maintenance, in-kind payments, such as the payment of utilities, house payments, rent, etc., should also be included in calculating the percentage limitations. Care must also be taken to ensure that the obligor is not deprived of the ability to support himself or herself. Spousal Maintenance. It should also be emphasized that the recommendations concerning maintenance apply only to temporary maintenance, not maintenance in the Final Decree. An award of spousal maintenance in the Final Decree must, of course, be made under IC 31 15 7 2 in accordance with Indiana statute. These Guidelines do not alter those requirements. Theoretically, when setting temporary maintenance, child support should come first. That is, if child support is set at forty percent (40%) of the obligor's weekly adjusted income, only a maximum of ten percent (10%) of the obligor's income would be available for maintenance. That distinction, however, makes little practical difference. As with temporary maintenance, care should be taken to leave the obligor with adequate income for subsistence. In many instances the court will have to review the impact of taxes on the obligor's income before entering an order for spousal maintenance in addition to child support to avoid injustice to the obligor. The worksheet provides a deduction for spousal maintenance paid as a result of a former marriage (Line 1 C D). Caution should be taken to assure that any credit taken is for maintenance and not for periodic payments as the result of a property settlement. pursuant to IC 31-15-7 4. No such deduction is given for amounts paid by an obligor as the result of a property settlement resulting from a former marriage, although that is a factor the court may wish to consider in determining the obligor's ability to pay the scheduled amount of support at the present time. Again, flexibility was intended throughout the Guidelines and they were not intended to place the obligor in a position where he or she loses all incentive to comply with the orders of the court. Guidelines to Be Applied in All Matters of Child Support. Federal law now requires that the Indiana Child Support Guidelines be applied in every instance in which child support is established including, but not limited to, dissolutions of marriage, legal separations, paternity actions, juvenile proceedings, petitions to establish support and Title IV-D proceedings. The Indiana legislature requires the Indiana Child Support Guidelines be applied and the Child Support Worksheet be used in determining the manner in which financial services to children that are CHINS (Child in Need of Services) or delinquent are to be repaid ~~(see I. C. 31 40 1 3)~~ . Similarly, the legislature requires the court to use the Guidelines to determine the financial contribution required from each parent of a child or the guardian of the child's estate for costs associated with the institutional placement of a child ~~(see I.C. 31 40 1 5)~~ .

GUIDELINE 3. DETERMINATION OF CHILD SUPPORT AMOUNT

A. Definition of Weekly Gross Income.

1. Definition of Weekly Gross Income (Line 1 of Worksheet). For purposes of these Guidelines, "weekly gross income" is defined as actual weekly gross income of the parent if employed to full capacity, potential income if unemployed or underemployed, and imputed income based upon "in-kind" benefits. Weekly gross income of each parent includes income from any source, except as excluded below, and includes, but is not limited to, income from salaries, wages, commissions, bonuses, overtime, partnership distributions, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workmen's compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, inheritance, prizes, and alimony or maintenance received from other marriages. Social Security disability benefits paid for the benefit of the child must be included in the disabled parent's gross income. The disabled parent is entitled to a credit for the amount of Social Security disability benefits paid for the benefit of the child. Specifically excluded are benefits from means-tested public assistance programs, including, but not limited to Temporary Aid To Needy Families (TANF), Supplemental Security Income, and Food Stamps. Also excluded are survivor benefits received by or for other children residing in either parent's home.

2. Self-Employment, Business Expenses, In-Kind Payments and Related Issues. Weekly Gross Income from self-employment, operation of a business, rent, and royalties is defined as gross receipts minus ordinary and necessary expenses. In general, these types of income and expenses from self-employment or operation of a business should be carefully reviewed to restrict the deductions to reasonable out-of-pocket expenditures necessary to produce income. These expenditures may include a reasonable yearly deduction for necessary capital expenditures. Weekly gross income from self-employment may differ from a determination of business income for tax purposes.

Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business should be counted as income if they are significant and reduce personal living expenses. Such payments might include a company car, free housing, or reimbursed meals.

The self-employed shall be permitted to deduct that portion of their F.I.C.A. tax payment that exceeds the F.I.C.A. tax that would be paid by an employee earning the same Weekly Gross Income.

3. Unemployed, Underemployed and Potential Income. If a court finds a parent is voluntarily unemployed or underemployed, without just cause, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor's work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community. If there is no work history and no higher education or vocational training, it-is ~~suggested~~ the facts of the case may indicate that weekly gross income be set at least at the federal minimum wage level.

4. Natural and Adopted Children Living in the Household. In determining a support order, there should be an adjustment to Weekly Gross Income of parents who have natural or legally adopted children living in their households, and who were born or adopted subsequent to the prior support order.

Commentar y to Guideline 3A

Weekly Gross Income. 1. Child Support Calculations Generally. Weekly gross income, potential income, weekly adjusted income and basic child support obligation have very specific and well-defined meanings within the Indiana Child Support Guidelines. Their definitions are not repeated in the Commentary, but further explanation follows. 2. Determination of Weekly Gross Income. Weekly gross income is the starting point in determining the child support obligation, and it must be calculated for both parents. If one or both parents have no income, then potential income may be calculated and used as weekly gross income. Likewise, imputed income may be substituted for, or added to, other income in arriving at weekly gross income. It includes such items as free housing, a company car that may be used for personal travel, and reimbursed meals or other items received by-the obligor that reduce his or her living expenses. The Child Support Obligation Worksheet does not include space to calculate weekly gross income. It must be calculated separately and the result entered on the worksheet. In calculating weekly gross income, it is helpful to begin with total income from all sources. This figure may not be the same as gross income for tax purposes. Internal Revenue Code of 1986, § 61. Means-tested public assistance programs (those based on income) are excluded from the computation of weekly gross income, but other government payments, such as social security benefits and veterans pensions, should be included. However, survivor benefits paid to or for the benefit of their children are not included. In cases where a custodial parent is receiving, as a representative payee for a prior born child, Social Security survivor benefits because of the death of the prior born child's parent, the court should carefully consider Line 1 B C of the of the basic child support obligation worksheet, Legal Duty of Support for Prior-born Children. Because the deceased parent's contribution for the support of the prior born child is being partially paid by Social Security survivor benefits that are excluded from Weekly Gross Income, the court should not enter, on Line 1 BC, an amount that represents 100% of the cost of support for the prior born child. Only the income of the parties is included in Weekly Gross Income. The income of the spouses of the parties is not included in Weekly Gross Income. a. Self-Employment, Rent and Royalty Income. Calculating weekly gross income for the self-employed or for those who receive rent and royalty income presents unique problems, and calls for careful review of expenses. The principle involved is that actual expenses are deducted, and benefits that reduce living expenses (company cars, free lodging, reimbursed meals, etc.) should be included in whole or in part. It is intended that actual out-of-pocket expenditures for the self-employed, to the extent that they are reasonable and necessary for the production of income, be deducted. Reasonable deductions for capital expenditures may be included. While income tax returns may be helpful in arriving at weekly gross income for a self-employed person, the deductions allowed by the Guidelines may differ significantly from those allowed for tax purposes. The self-employed pay F.I.C.A. tax at twice the rate that is paid by employees. At present rates, the self-employed pay fifteen and thirty one-hundredths percent (15.30%) of their gross income to a designated maximum, while employees pay seven and sixty-five (7.65%) to the same maximum. The self-employed are therefore permitted to deduct one-half of their F.I.C.A. payment when calculating Weekly Gross Income. b. Overtime, Commissions, Bonuses and Other Forms of Irregular Income. There are numerous forms of income that are irregular or nonguaranteed, which cause difficulty in accurately determining the gross income of a party. Overtime, commissions, bonuses, periodic partnership distributions, voluntary extra work and extra hours worked by a professional are all illustrations, but far from an all-inclusive list, of such items. Each is includable in the total income approach taken by the Guidelines, but each is also very fact-sensitive. Each of the above items is sensitive to downturns in the economy. The fact that overtime, for example, has been consistent for three (3) years does not guarantee that it will continue in a poor economy. Further, it is not the intent of the Guidelines to require a party who has worked sixty (60) hour weeks to continue doing so indefinitely just to meet a support obligation that is based on that higher level of earnings. Care should be taken to set support based on dependable income, while at the same time providing children with the support to which they are entitled. When the court determines that it is not appropriate to include irregular income in the determination of the child support obligation, the court should express its reasons. When the court determines that it is appropriate to include irregular income, an equitable method of treating such income may be to require the obligor to pay a fixed percentage of overtime, bonuses, etc., in child support on a periodic but predetermined basis (weekly, bi-weekly, monthly, quarterly) rather than by the process of determining the average of the irregular income by past history and including it in the obligor's gross income calculation. One method of treating irregular income is to determine the ratio of the basic child support obligation (line 4 of the worksheet) to the combined weekly adjusted income (line 3 of the worksheet) and apply this ratio to the irregular income during a fixed period. For example, if the basic obligation was $110.00 and the combined income was $650.00, the ratio would be .169 ($110.00 / $650.00). The order of the court would then require the obligor to make a lump sum payment of .169 of the obligor's irregular income received during the fixed period. The use of this ratio will not result in an exact calculation of support paid on a weekly basis. It will result in an overstatement of the additional support due, and particularly so when average irregular income exceeds $250.00 per week or exceeds 75% of the regular adjusted weekly gross income. In these latter cases the obligor may seek to have the irregular income calculation redetermined by the court. Another form of irregular income may exist when an obligor takes a part-time job for the purpose of meeting financial obligations arising from a subsequent marriage, or other circumstances. Modification of the support order to include this income or any portion of it may require that the obligor continue with that employment just to meet an increased support obligation, resulting in a disincentive to work. Judges and practitioners should be innovative in finding ways to include income that would have benefited the family had it remained intact, but be receptive to deviations where reasons justify them. The foregoing discussion should not be interpreted to exclude consideration of irregular income of the custodial parent. c. Potential Income. Potential income may be determined if a parent has no income, or only means-tested income, and is capable of earning income or capable of earning more. Obviously, a great deal of discretion will have to be used in this determination. One purpose of potential income is to discourage a parent from taking a lower paying job to avoid the payment of significant support. Another purpose is to fairly allocate the support obligation when one parent remarries and, because of the income of the new spouse, chooses not to be employed. However, attributing potential income that results in an unrealistic child support obligation may cause the accumulation of an excessive arrearage, and be contrary to the best interests of the child(ren). Research shows that on average more noncustodial parental involvement is associated with greater child educational attainment and lower juvenile delinquency. Ordering support for low-income parents at levels they can reasonably pay may improve noncustodial parent-child contact; and in turn, the outcomes for their children. The six ~~four~~ examples which follow illustrate some of the considerations affecting attributing potential income to an unemployed or underemployed parent. (1) When a custodial parent with young children at home has no significant skills or education and is unemployed, he or she may not be capable of entering the work force and earning enough to even cover the cost of child care. Hence, it may be inappropriate to attribute any potential income to that parent. It is not the intention of the Guidelines to force all custodial parents into the workforce. Therefore, discretion must be exercised on an individual case basis to determine if it is fair under the circumstances to attribute potential income to a particular nonworking or underemployed custodial parent. The need for a custodial parent to contribute to the financial support of a child must be carefully balanced against the need for the parent's full-time presence in the home. (2) When a parent has some history of working and is capable of entering the workforce, but without just cause voluntarily fails or refuses to work or to be employed in a capacity in keeping with his or her capabilities, such a parent's potential income shall be included in ~~should be determined to be a part of~~ the gross income of that parent. The amount to be attributed as potential income in such a case may would be the amount that the evidence demonstrates he or she was capable of earning in the past. If for example the custodial parent had been a nurse or a licensed engineer, it may be is unreasonable to determine his or her potential at the minimum wage level. Discretion must be exercised on an individual case basis to determine whether under the circumstances there is just cause to attribute potential income to a particular unemployed or underemployed parent. (3) Even though an unemployed parent has never worked before, potential income should be considered for that parent if he or she voluntarily remains unemployed without justification. Absent any other evidence of potential earnings of such a parent, the federal minimum wage should be used in calculating potential income for that parent. However, the court should not add child care expense that is not actually incurred. (4) When a parent is unemployed by reason of involuntary layoff or job termination, it still may be appropriate to include an amount in gross income representing that parent's potential income. If the involuntary layoff can be reasonably expected to be brief, potential income should be used at or near that parent's historical earning level. If the involuntary layoff will be extensive in duration, potential income may be determined based upon such factors as the parent's unemployment compensation, job capabilities, ~~and~~ education and whether if other employment is available. Potential income equivalent to the federal minimum wage may be attributed to that parent. (5) When a parent is unable to obtain employment because that parent suffers from mental illness, a significant health issue, or is caring for a disabled child, it may be inappropriate to attribute any potential income to that parent. Another example may be when the cost of child care makes employment economically unreasonable. (6) When a parent is incarcerated and has no assets or other source of income, potential income should not be attributed. d. Imputing Income. Whether or not income should be imputed to a parent whose living expenses have been substantially reduced due to financial resources other than the parent's own earning capabilities is also a fact-sensitive situation requiring careful consideration of the evidence in each case. It may be inappropriate to include as gross income occasional gifts received. However, regular and continuing payments made by a family member, subsequent spouse, roommate or live-in friend that reduce the parent's costs for rent, utilities, or groceries, may be the basis for imputing income. The marriage of a parent to a spouse with sufficient affluence to obviate the necessity for the parent to work may give rise to a situation where either potential income or imputed income or both should be considered in arriving at gross income. e. Return from Individual Retirement Accounts and other retirement plans. The annual return of an IRA, 401 (K) or other retirement plan that is automatically reinvested does not constitute income. Where previous withdrawals from the IRA or 401(K) have been made to fund the parent's lifestyle choices or living expenses, these withdrawals may be considered 'actual income' when calculating the parent's child support obligation. The withdrawals must have been received by the parent and immediately available for his or her use. The court should consider whether the early withdrawal was used to reduce the parent's current living expenses, whether it was utilized to satisfy on-going financial obligations, and whether the sums are immediately available to the parent. This is a fact-sensitive situation. Retirement funds which were in existence at the time of a dissolution and which were the subject of the property division would not be considered "income" when calculating child support. 3. Adjustment of Weekly Gross Income for Subsequent Children. In determining support orders, an adjustment should be made in arriving at Weekly Gross Income of the parents in instances where either or both have natural or legally adopted children who were born or adopted subsequent to the prior support order. The adjustment should be computed as follows :

STEP 1: Determine the number of natural or legally adopted children born or adopted by the custodial and/or noncustodial parents subsequent to entry of the present support order, and who are living in the respective parent's household. STEP 2: Adjust the Weekly Gross Income of each parent according to the number of natural or legally adopted children in their household, by multiplying their Weekly Gross Incomes by one of the following percentages and entering the product on line 1A of the worksheet. The applicable percentages are derived from the average percentages calculated by using the Guideline Schedules for Weekly Support Payments. When there is one natural or legally adopted child born or adopted subsequent to the present support order living in the custodial or noncustodial parent's household, multiply Weekly Gross Income by .935. The factor of .935 is derived by dividing the average base support percentage for one child (13.1%) by 2 and then subtracting that number (6.5) from 100. When there are two such children, multiply by .903; when there are three, multiply by .878; when there are four, multiply by .863; and when there are five, multiply by .854. ~~The appropriate factors are~~ : ~~1 child .935-100 (13.1% ÷ 2)~~ ~~2 children .903 100 (1.5 x 6.5)~~ ~~3 children .878 100 (1.25 x 9.75)~~ ~~4 children .863 100 (1.125 x 12.19)~~ ~~5 children .854 100 (1.0625 x 13.71)~~

EXAMPLE: A noncustodial parent has a Weekly Gross Income, before adjustment, of $500.00. The custodial parent has a Weekly Gross Income, before adjustment, of $300.00. In considering a modification request, an adjustment should be made to the parents' respective Weekly Gross Incomes for the two (2) natural children born to the noncustodial parent since entry of the present support order and the adopted child of the custodial parent, adopted since entry of the present order. The respective Weekly Gross Incomes of the parties to be entered on line 1A of the worksheet would be as follows :

~~Noncustodial. . . . . . . . . . . $500 x — .903 $451.50, . . . . . .and Custodial . . . . . . . . . . . . . . . . $300 x .935 — $280.50.~~

B. Income Verification.

1. Submitting Worksheet to Court. In all cases, a copy of the worksheet which accompanies these Guidelines shall be completed and filed with the court when the court is asked to order support. This includes cases in which agreed orders are submitted. Worksheets shall be signed by both parties, not their counsel, under penalties for perjury.

2. Documenting Income. Income statements of the parents shall be verified with documentation of both current and past income. Suitable documentation of current earnings includes paystubs, employer statements, or receipts and expenses if self-employed. Documentation of income may be supplemented with copies of tax returns

Commentary to Guideline 3B

Worksheet Documentation. 1. Worksheet Requirement. Submission of the worksheet became a requirement in 1989 when use of the Guidelines became mandatory. The Family Support Act of 1988 requires that a written finding be made when establishing support. In Indiana, this is accomplished by submission of a child support worksheet. The worksheet memorializes the basis upon which the support order is established. Failure to submit a completed child support worksheet may, in the court's discretion, result in the court refusing to approve a child support order or result in a continuance of a hearing regarding child support until a completed worksheet is provided. At subsequent modification hearings the court will then have the ability to accurately determine the income claimed by each party at the time of the prior hearing. If the parties disagree on their respective gross incomes, the court should include in its order the gross income it determines for each party. When the court deviates from the Guideline amount, the order or decree should also include the reason or reasons for deviation. This information becomes the starting point to determine whether or not a substantial and continuing change of circumstance occurs in the future. 2. Verification of Income. The requirement of income verification is not a change in the law but merely a suggestion to judges that they take care in determining the income of each party. One pay stub standing alone can be very misleading, as can other forms of documentation. This is particularly true for salesmen, professionals and others who receive commissions or bonuses, or others who have the ability to defer payments, thereby distorting the true picture of their income in the short term. When in doubt, it is suggested that income tax returns for the last two or three years be reviewed.

C. Computation of Weekly Adjusted Income (Line 1 D E of Worksheet) .

After weekly gross income is determined, certain reductions are allowed in computing weekly adjusted income which is the amount on which child support is based. These reductions are specified below.

1. Adjustment for Subsequent born or Adopted Child(ren.) (Line 1A of Worksheet.) . In determining a support order, there should be an adjustment to Weekly Gross Income of parents who have a legal duty or court order to support children who were naturally born or legally adopted subsequent to the existing support order and that parent is actually meeting or paying that obligation. 1. 2. Court Orders for Prior-born Child(ren) (Line 1AB of Worksheet). The amount(s) of any court order(s) for child support for prior-born children should be deducted from weekly gross income. This should include court ordered post-secondary education expenses calculated on an annual basis divided by 52 weeks.

2. 3. Legal Duty of Support for Prior-born Children (Line 1BC_ of Worksheet). Where a party has a legal support duty for children born prior to the child(ren) for whom support is being established, not by court order, an amount reasonably necessary for such support shall be deducted from weekly gross income to arrive at weekly adjusted income. This deduction is not allowed for step-children. (See line 1BC of worksheet)

3. 4. Alimony or Maintenance From Prior Marriage (Line 1CD of Worksheet). The amounts of alimony ordered in decrees from foreign jurisdictions or maintenance arising from a prior marriage should be deducted from weekly gross income.

Commentary to Guideline 3C

Determining Weekly Adjusted Income. After weekly gross income is determined, the next step is to compute weekly adjusted income (line 1DE. of the worksheet). Certain deductions, discussed below, are allowed from weekly gross income in arriving at weekly adjusted income. 1. Adjustment of Weekly Gross Income for Subsequent Children. In determining support orders, an adjustment should be made in arriving at Weekly Gross Income of the parents in instances where either or both have natural or legally adopted children who were born or adopted subsequent to the prior support order. The adjustment should be computed as follows :

STEP 1: Determine the number of natural or legally adopted children born or adopted by the parents subsequent to entry of the present support order, and for whom the parent has a legal duty or court order to support. The parent seeking the adjustment has the burden to prove the support is actually paid if the subsequent child does not live in the respective parent's household. STEP 2: Calculate the subsequent child credit by multiplying the parent's weekly gross income by the appropriate factor listed in the table below and enter the product on line 1.A on the worksheet. Appropriate factors are :

1 _____ Subsequent child _______ .065 2 _____ Subsequent children ____ .097 3 _____ Subsequent children ____ .122 4 _____ Subsequent children ____ .137 5 _____ Subsequent children ____ .146 6 _____ Subsequent children ____ .155 7 _____ Subsequent children ____ .164 8 _____ Subsequent children ____ .173 EXAMPLE: A noncustodial parent has a Weekly Gross Income, before adjustment of $500.00. The custodial parent has a Weekly Gross Income, before adjustment, of $300.00. In considering a modification request, an adjustment should be made to the parents' respective Weekly Gross Incomes for the two (2) natural children born to the noncustodial parent since entry of the present support order and the one (1) adopted child of the custodial parent, adopted since entry of the present order. The respective subsequent child credit to be entered on line 1A of the worksheet would be as follows :

Noncustodial . . . . . . . . . . . . . $500 x .097 = $48.50 credit

Custodial . . . . . . . . . . . . . . . $300 x. 065 = $19.50 credit

1 2 . Modification of Support in Prior Marriage. When considering a petition to modify support arriving out of a prior marriage, no deduction is allowed for support ordered as the result of a second or subsequent marriage. Establishment of a support order in a second marriage should not constitute a change in circumstance in the first marriage which would lead to modification of the support order from the prior marriage. Each child is being supported from the money from which they could have expected to be supported had the dissolution not occurred. Likewise, if support is being established or modified for a child born out of wedlock, the date of birth of the child would determine whether or not a deduction for the support of other children is allowed in arriving at weekly adjusted income. If a child is born out of wedlock before the children of the marriage, no deduction for the children of the marriage is allowed. A deduction for children of the marriage is allowed in establishing support for a child born out of wedlock after the children of the marriage. 2. 3. Legal Duty to Support for Prior Born Children. A deduction is allowed for support actually paid, or funds actually expended, for children born prior to the children for whom support is being established. This is true even though that obligation has not been reduced to a court order. The obligor bears the burden of proving the obligation and payment of the obligation. A custodial parent should be permitted to deduct his or her portion of the support obligation for prior-born children living in his or her home. It is recommended that these guidelines be used to compute support. Example: In establishing support for children of a subsequent marriage, the custodial spouse should be permitted to deduct the support he or she would pay in the prior marriage (pursuant to line 6 of Worksheet) if custody had been placed with the former spouse. This necessitates the computation in the second dissolution of the support that would be paid by each spouse in the former marriage. This amount is inserted on line 1BC of the Worksheet. 3 4. Alimony or Maintenance From Prior Marriage. The final allowable deduction from weekly gross income in arriving at weekly adjusted income is for alimony ordered in decrees from foreign jurisdictions or spousal maintenance arising from a prior marriage. These amounts are allowable only if they arise as the result of a court order. This deduction is intended only for spousal maintenance, not for periodic payments from a property settlement which are made under IC 31 15 7 4, although the court may consider periodic payments when determining whether or not to deviate from the guideline amount when ordering support. Refer to the discussion of temporary maintenance earlier in this commentary. (Line 1 C D of worksheet)

D. Basic Child Support Obligation (Worksheet Line 4).

The Basic Child Support Obligation should be determined using the attached Guideline Schedules for Weekly Support Payments. For combined weekly adjusted income amounts falling between amounts shown in the schedule, basic child support amounts should be rounded to the nearest amount. The number of children refers to children for whom the parents share joint legal responsibility and for whom support is being sought, excluding children for whom a post-secondary education worksheet is used to determine support. Work-related child care expense for these children is to be deducted from total weekly adjusted income in determining the combined weekly adjusted income that is used in selecting the appropriate basic child support obligation.

Commentary to Guideline 3D

Use of Guideline Schedules. 1. Combined Weekly Adjusted Income. After reducing weekly gross income by the deductions allowed above, weekly adjusted income is computed. The next step is to add the weekly adjusted income of both parties and take the combined weekly adjusted income to the Guideline schedules for weekly support payments. In selecting the appropriate column for the determination of the basic child support obligation, it should be remembered that the number of children refers only to the number of children of this marriage for whom support is being computed, excluding children for whom a post-secondary education worksheet is used to determine support. As previously explained, these Guidelines do not contain figures for combined weekly adjusted income of less than $100.00 or more than $4,000.00. 2. Income in Excess of Guideline Schedules. The following formula is specifically adopted for incomes in excess of the table and has no application to income under $4,000.00 per week. When combined weekly adjusted income exceeds $4,000.00, it is necessary to use this formula :

~~y — [89.42443 x ln(N)] — 411.21~~

~~y — support for one child~~

~~ln(N) — natural log of N~~

~~N — combined weekly adjusted income~~

The examples below make it apparent that use of the formula is not complicated. With a little practice and an inexpensive calculator equipped with a natural logarithm key, the calculation is easily made.

~~(1) Assume combined weekly adjusted income is $4,000 with one child, then~~

~~Support [89.42443 x ln(4,000)] — 411.24~~

~~—[89.42443 x (8.29405)] — 411.24~~

~~— 741.69066 — 411.24~~

~~— $330.00 (rounded to nearest dollar)~~

~~(2) Assume combined weekly adjusted income is $6,000, then~~

~~Support — [89.42443 x ln(6.000)] — 411.24~~

~~— [89.42443 x (8.69951)] — 411.2 4~~

~~— 777.94915 — 411.24~~

~~— $367.00 (rounded to nearest dollar)~~

Before moving on to example (3), please note that the support level for second and subsequent children is not simply 2, 3, or 4 times the support for one. The appropriate multiples are set forth in the following table : ~~support for 2 children — 1.50 x support for one child~~ ~~support for 3 children — 1.875 x support for one child~~ ~~support for 4 children — 2.10938 x support for one child~~ ~~support for 5 children — 2.24121 x support for one child~~ ~~support for 6 children — 2.31125 x support for one child~~ ~~support for 7 children — 2.34736 x support for one child~~ ~~support for 8 children — 2.36570 x support for one child~~ ~~This progression on the Guideline Schedules does not go beyond five children.~~ ~~(3) Assume combined weekly adjusted income is $7,500 with 3 children, then~~ ~~Support for one child 89.42443 x ln(7,500) 411.24~~ ~~89.42443x [8.92266] — 411.24~~ ~~797.90363 — 411.24~~

~~$386.66 (support for one child rounded to nearest penny)~~ Support for 3 children — ~~89.42443 x 1.875 x support for one child~~ ~~-1.875 x 386.66~~ ~~$725.00 (rounded to nearest dollar)~~ ~~The basic child support obligation is placed on line 4 of the worksheet. (An explanation of line 3 computations, Percentage Share of Income, is given later.)~~

E. Additions to the Basic Child Support Obligation.

1. Work-Related Child Care Expense (Worksheet Line 4A). Child care costs incurred due to employment or job search of both parent(s) should be added to the basic obligation. It includes the separate cost of a sitter, day care, or like care of a child or children while the parent works or actively seeks employment. Such child care costs must be reasonable and should not exceed the level required to provide quality care for the children. Continuity of child care should be considered. Child care costs required for active job searches are allowable on the same basis as costs required in connection with employment.

The parent who contracts for the child-care shall be responsible for the payment to the provider of the child care. For the purposed of designating this expense on the Child Support Obligation Worksheet (Line 4A), each parent's expense shall be calculated on an annual basis divided by 52 weeks. The combined amount shall be added to the Basic Child Support Obligation and each parent shall receive a credit equal to the expense incurred by that parent as an Adjustment (Line 7 of the Worksheet).

When potential income is attributed to a party, the court should not also attribute work-related child-care expense which is not actually incurred.

2. Cost of Health Insurance For Child(ren) (Worksheet Line 4B). The weekly cost of health insurance premiums for the child(ren) should be added to the basic obligation whenever either parent actually incurs the premium expense or a portion of such expense. (Please refer to Guideline 7 for additional information regarding the treatment of Health Care Expenses.)

3. Extraordinary Health Care Expense. Please refer to Support Guideline~~3 H~~ 7_for treatment of this issue.

4. Extraordinary Educational Expense. Please refer to Support Guideline 6-8 for treatment of this issue.

Commentary to Guideline 3E

Additions to the Basic Child Support Obligation. 1. Work-Related Child Care Expense (Worksheet Line 4A). One of the additions to the basic child support obligation is a reasonable child care expense incurred due to employment, or an attempt to find employment. This amount is added to the basic child support obligation in arriving at the total child support obligation. Work-related child care expense is an income-producing expense of the parent. Presumably, if the family remained intact, the parents would treat child care as a necessary cost of the family attributable to the children when both parents work. Therefore, the expense is one that is incurred for the benefit of the child(ren) which the parents should share. In circumstances where a parent claims the work-related child care credit for tax purposes, it would be appropriate to reduce the amount claimed as work-related child care expense by the amount of tax saving to the parent. The exact amount of the credit may not be known at the time support is set, but counsel should be able to make a rough calculation as to its effect. When potential income is attributed to a party, the court should not also attribute a work-related child care expense which is not actually incurred because this expense is highly speculative and difficult to adequately verify. 2. Cost of Health Insurance For Child(ren) (Worksheet Line 4B). The weekly costs of health insurance premiums only for the child(ren) should be added to the basic obligation so as to apportion that cost between the parents. The parent who actually pays that cost then receives a credit towards his or her child support obligation on Line 7 of the Worksheet. (See Support Guideline 3G. ~~Additions~~ A djustments To Parent's Child Support Obligation). Only that portion of the cost actually paid by a parent is added to the basic obligation. If health insurance coverage is provided through an employer, only the child(ren)'s portion should be added and only if the parent actually incurs a cost for it. ~~Health insurance coverage should normally be provided by the parent who can obtain the most comprehensive coverage at the least cost. If a separate policy of insurance is~~ purchased for the children, determining the weekly cost should be no problem, but in the most common situation coverage for the child(ren) will occur through an employer group plan. If the employer pays the entire cost of coverage, no addition to the basic obligation will occur. If there is an employee cost, it will be necessary for the parent to contact his or her employer or insurance provider to obtain appropriate documentation of the parent's cost for the child(ren)'s coverage. At low income levels, giving the noncustodial parent credit for payment of the health insurance premium may reduce support to an unreasonably low amount. In such instance the Court may, in the exercise of its discretion, deny or reduce the credit. A number of different circumstances may exist in providing health insurance coverage, such as a situation in which a subsequent spouse or child(ren) are covered at no additional cost to the parent who is paying for the coverage. The treatment of these situations rests in the sound discretion of the court, including such options as prorating the cost. 3. Total Child Support Obligation (Worksheet Line 5). Adding work-related child care costs, and the weekly cost of health insurance premiums for the child(ren) to the basic child support obligation results in a figure called Total Child Support Obligation. This is the basic obligation of both parents for the support of the child(ren) of the marriage, or approximately what it would cost to support the child(ren) in an intact household, excluding extraordinary health care and/or extraordinary education expenses.

F. Computation of Parent's Child Support Obligation (Worksheet Line 6).

Each parent's child support obligation is determined by multiplying his or her percentage share of total weekly adjusted income (Worksheet Line 2) times the Total Child Support Obligation (Worksheet Line 5).

1. Division of Obligation Between Parents (Worksheet Line 6). The total child support obligation is divided between the parents in proportion to their weekly adjusted income. A monetary obligation is computed for each parent. The custodial parent's share is presumed to be spent directly on the child. When there is near equal parenting time, and the custodial parent has significantly higher income than the noncustodial parent, application of the parenting time credit should result in an order for the child support to be paid from a custodial parent to a noncustodal parent, absent grounds for a deviation. Although a monetary obligation is computed for each parent, the custodial parent's share is not payable to the other parent as child support. Instead, the custodial parent's share is presumed to be spent directly on the child.

2. Deviation From Guideline Amount. If, after consideration of the factors contained in IC 31-16-6-1 and IC 31-16-6-2, the court finds that the Guideline amount is unjust or inappropriate in a particular case, the court may state a factual basis for the deviation and proceed to enter a support amount that is deemed appropriate.

Commentary to Guideline 3F

Computation of Child Support. 1. Apportionment of Support Between Parents. After the total child support obligation is determined, it is necessary to apportion that obligation between the parents based on their respective weekly adjusted incomes. First, a percentage is formed by dividing the weekly adjusted income of each parent by the total weekly adjusted income (Line 1D-E of the worksheet). The percentages are entered on Line 2 of the worksheet. The total child support obligation is then multiplied by the percentages on Line 2 (the percentage of total weekly adjusted income that the weekly adjusted income of each parent represents) and the resulting figure is the child support obligation of each parent. The noncustodial parent is ordered to pay his or her proportionate share of support as calculated on line 6 of the worksheet. Custodial parents are presumed to be meeting their obligations by direct expenditures on behalf of the child, so a support order is not entered against the custodial parent. 2. Apportionment of Support When Incapacitated Adult Child Has Earned Income. Under certain circumstances the earned income of a child may be considered in apportioning support. In calculating a support obligation with respect to an incapacitated adult child with earned income, the support obligation may be determined by apportioning the support based upon the relative amount earned by the parents and the child. 3. Deviation From Guideline Amount. If the court determines that the Guideline amount is unjust or inappropriate, a written finding shall be made setting forth the factual basis for deviation from the Guideline amount. A simple finding such as the following is sufficient: "The court finds that the presumptive amount of support calculated under the Guidelines has been rebutted for the following reasons." A pro forma finding that the Guidelines are not appropriate does not satisfy the requirement for a specific finding of inappropriateness in a particular case, which is required in an order to deviate from the Guideline amount. For further discussion of deviation from the Guideline amount, see also the Commentary to Support Guideline One 1.

G. Adjustments to Parent's Child Support Obligation (Worksheet Line 7)

The parent's child support obligation (Worksheet Line 7) may be subject to four (4) adjustments.

1. Obligation From Post-Secondary Education Worksheet. If the parents have a child who is living away from home while attending school, his or her child support obligation will reflect the adjustment found on Line J of the Post-Secondary Education Worksheet (See Support Guideline 68~~Commentary entitled Extraordinary Educational Expenses)~~.

2. Weekly Cost of Work-related Child Care Expenses. A parent who pays a weekly child care expense should receive a credit towards his or her child support obligation. This credit is entered on the space provided on the Worksheet Line 7. The total credits claimed by the parents must equal the total amount on Line 4A. (See Support Guideline 3E Commentary~~entitled Additions to the Basic Child Support Obligation)~~.

3. Weekly Cost of Health Insurance Premiums For Child(ren). The parent who pays the weekly premium cost for the child(ren)'s health insurance should receive a credit towards his or her child support obligation in most circumstances. This credit is entered on the space provided on the Worksheet Line 7 and will be in an amount equal to that entered on the Worksheet Line 4B (See Support Guideline 3E Commentary ~~entitled Additions to the Basic Child Support Obligation)~~.

4. Parenting Time Credit. The court should grant a credit toward the total amount of calculated child support for either "duplicated" or "transferred" expenses incurred by the noncustodial parent. The proper allocation of these expenses between the parents shall be based on the calculation from a Parenting Time Credit Worksheet. ~~The court may grant the noncustodial parent a credit toward his or her weekly child support obligation (Line 6 of Worksheet) based upon the calculation from a Parenting Time Credit Worksheet~~ (See Support Guideline 6 Commentary~~entitled Parenting Time and Child Support)~~.

5. Effect of Social Security Benefits ~~Received By Child Because Of~~ ~~Parent's Disability.~~ Social Security benefits received by a child because of the custodial parent's disability do not reduce the child support obligation of the noncustodial parent. However, Social Security benefits received by a child because of the noncustodial parent's disability may be applied on a case by case basis as a credit to the noncustodial parent's child support obligation.

Commentary

~~(See Commentary to Support Guideline 3E and Support Guideline 6)~~

a._____ Current Support Obligation

1. Custodial parent: Social Security benefits received for a child based upon the disability of the custodial parent are not a credit toward the child support obligation of the noncustodial parent. It is a credit to the custodial parent's child support obligation.

2. Noncustodial parent: Social security benefits received by a custodial parent, as representative payee of the child, based upon the earnings or disability of the noncustodial parent shall be considered as a credit to satisfy the noncustodial parent's child support obligation as follows:

i. Social Security Retirement benefits may, at the court's discretion, be credited to the noncustodial parent's current child support obligation. The credit is not automatic. The presence of Social Security Retirement benefits is merely one factor for the court to consider in determining the child support obligation or modification of the obligation. Stultz v. Stultz, 659 N.E.2d 125 (Ind. 1995)

ii. Social Security Disability benefits shall be included in the weekly gross income of the noncustodial parent and applied as a credit to the noncustodial parent's current child support obligation. The credit is automatic.

iii. Any portion of the benefit that exceeds the child support obligation shall be considered a gratuity for the benefit of the child, unless there is an arrearage.

3. The filing of a petition to modify on grounds a Social Security Disability determination has been requested will not relieve the parent's obligation to pay the current support order while the disability application is pending. Filing of the petition to modify support entitles the noncustodial parent to a retroactive reduction in support to the date of filing of the petition for modification and not the date of filing for the benefits. If the modification of support is granted, any lump sum payment of retroactive Social Security Disability benefits paid shall be credited toward the modified support obligation.

b. Arrearages

1. Credit for retroactive lump sum payment. A lump sum payment of retroactive Social Security Disability benefits shall be applied as a credit against an existing child support arrearage if the custodial parent, as representative payee, received a lump sum retroactive payment, without the requirement of a filing of a Petition to Modify Child Support. However, no credit should be allowed under the following circumstances:

i. A custodial parent should never be required to pay restitution to a disabled noncustodial parent for lump sum retroactive Social Security Disability benefits which exceed the amount of "court-ordered' child support. Any portion of lump sum payments of retroactive Social Security Disability benefits paid to children not credited against the existing child support arrearage is properly treated as a gratuity to the children. No credit toward future support should be granted.

ii. No credit shall be given for a lump sum disability payment paid directly to a child who is over the age of eighteen (18). The dependency benefits paid directly to a child who has reached the age of majority under the Social Security law, rather than to the custodial parent, as representative payee, do not fulfill the obligations of court-ordered child support.

2. Application of current Social Security Disability benefits. The amount of the benefit which exceeds the child support order may be treated as an ongoing credit toward an existing arrearage.

3. In Title IV-D cases there is no credit toward the monies owed to the State of Indiana unless the retroactive benefit is actually paid to the State of Indiana. The child's Social Security benefits received and used by the custodial parent will not reduce or be credited against the noncustodial parent's obligation to reimburse the State of Indiana for Title IV-A or Title IV-E benefits previously paid on behalf of the children.

4. Modification. The award of Social Security Disability benefits retroactive to a specific date does not modify a noncustodial parent's child support obligation to the same date. The noncustodial parent's duty to pay support cannot be retroactively modified earlier than the filing date of a petition to modify child support. Ind. Code § 31-16-16-6.

Commentary to Guideline 3G

It is important to remember the amount of social security disability benefit that exceeds the current child support order will not be reflected in ISETS as a credit toward an existing arrearage unless specified in the court order. Unless the credit is recognized in ISETS, there is a chance that an arrearage notice may be issued administratively and sanctions could be entered on that arrearage. Social Security benefits paid to a parent for the benefit of a minor child are included in the disabled parent's gross weekly income for purposes of determining child support regardless of which parent actually receives the payment. (See Guideline 3.A.) This section, 3.G., and its commentary address adjustments to the recommended child support obligation. Although Social Security benefits are not reflected on line 7 of the child support worksheet, the benefit should be considered, and its effect and application shall be included in the written order for support of that child. The revised Guidelines make no change in the law regarding an adjustment for Social Security Retirement benefits or Supplemental Security Income (SSI). The Court has discretion to allow an adjustment to a parent's child support obligation based on the amount of Social Security Retirement benefits paid for the benefit of the child due to that parent's retirement. The retirement benefit is merely one of the factors that the court should consider when making an adjustment to the child support obligation. SSI is a means-tested program and the benefit is not included in either parent's gross income. It therefore should not be considered an adjustment to either parent's child support obligation. In Brown v. Brown, 849 N.E.2d 610 (Ind. 2006), Social Security Disability benefits paid to a child were clearly recognized as earnings of the disabled parent. Id, at 614. Under the new Guidelines, Social Security Disability benefits paid for a child are now recognized as income of the disabled parent who earned the benefits and those benefits are included in the Weekly Gross Income of that parent. See Guideline 3.A. It follows then that the payment received for the benefit of the child should be applied to satisfy the disabled parent's support obligation. The child support order should state that the SSD benefit received for the child is credited as payment toward the support obligation. Any portion of the SSD benefit in excess of the current support obligation is a gratuity, unless there is an arrearage. The new language in Guideline 3.G.5. directs that the excess SSD benefit shall be applied as payment toward an existing arrearage. Once the arrearage is satisfied, any portion of the SSD benefit that exceeds the current support obligation is considered a gratuity. The new guidelines also change the application of a lump sum SSD payment. SSD is, by definition, a substitution for a person's income lost due to a recognized disability. Further, under the Act, that individual may be entitled to a lump sum benefit retroactive to the date that his or her disability occurred and that caused the disruption in earnings. This lump sum payment is unique to SSD. The guidelines now allow the courts to apply the lump sum Social Security Disability benefits toward an existing child support arrearage if the custodial parent, as representative payee, receives a lump sum payment. This credit is appropriate without the requirement of a filing of a Petition to Modify Child Support. The revised Guidelines change the law regarding the application of Social Security Disability (SSD) benefits. The holding in Hieston v. State, 885 N.E.2d 59 (Ind. Ct. App. 2008) and its progeny has been superseded by this change. The rationale is that the lump sum payment is merely a method of payment applied to a past support obligation not paid. The distinction is between modification of support which changes the rate of support, e.g. from $100 per week to $50 per week, as opposed to credit for an indirect payment. Modification of a child support obligation still requires the filing of a petition for modification as set forth in Guideline 4. The lump sum payment is a method of payment that may not be specifically authorized by express court order but which should be recognized as a payment of support. Indiana case law establishes that credit can be allowed for payments that do not technically conform to the original support decree. For example, where the obligated parent makes payments directly to the custodial parent rather than through the clerk of the court, the Supreme Court has recognized these payments when there was sufficient proof to convince a trier of fact that the required payments were actually made. O'Neil v. O'Neil, 535 N.E.2d 523 (Ind. 1989), Nill v. Martin, 686 N.E.2d 116 (Ind. 1997). Proof of the lump sum Social Security Disability benefit payment is not difficult because the social security award certificate is a record easily admitted into evidence as an exception to the hearsay rule under IRE 803(6) and (8) (reports of a public agency setting forth its regularly recorded activity) and trial courts are rarely burdened with an evidentiary dispute about what was paid, when or to whom, once the Social Security records are shared. By contrast, the informal arrangement disputes between parties to modify and reduce the actual amount of weekly support below that ordered in the divorce decree are actual attempts to retroactively modify the amount of support, which are prohibited. Similar to the nonconforming payment, the lump sum payment shall be applied as a credit to an existing child support arrearage. If there is no child support arrearage, the lump sum payment is considered gratuity. As long as there is an existing support order, there should never be an order entered that requires any excess payment of SSD or the lump sum payment to be paid back to the disabled parent. The revised Guidelines exclude from the parent's weekly gross income any survivor benefits received by or for other children residing in either parent's home based on the Social Security death benefits of a deceased parent of a prior born child. See Commentary to Guideline 3(A) .

H. Treatment of Health Care Obligation

The data upon which the Guideline schedules are based include a component for ordinary health care expenses. Ordinary uninsured health care expenses are paid by the parent for whom the parenting time credit is not calculated up to six percent (6%) of the basic child support obligation (Line 4 of the child support obligation worksheet)and, if applicable, the child support obligation attributed to a student living away from home (Section Two Line I of the post secondary education worksheet) annually since the Guideline Schedules for Weekly Support Payments include six percent (6%) for ordinary uninsured health care costs. (See Commentary to Guideline 6 for further explanation.) Extraordinary health care expenses are those uninsured expenses which are in excess of six percent (6%) of the basic obligation, and would include uninsured expenses for chronic or long term conditions of a child. Calculation of the apportionment of the health care expense obligation is a matter separate from the determination of the weekly child support obligation. These calculations shall be inserted in the space provided on the Worksheet.

Commentary

Apportionment of Health Care Expenses. The data on which the Guideline schedules are based include a component for ordinary medical expenses. Specifically, six percent (6%) of the support amount is for health care. The non custodial parent is, in effect, prepaying health care expenses every time a support payment is made. Consequently, the Guidelines require that the custodial parent bear the cost of uninsured health care expenses up to six percent (6%) of the basic child support obligation found on Line 4 of the child support obligation worksheet and, if applicable, the child support obligation attributable to a student living away from home (Section Two Line I of the post secondary education worksheet). That computation is made by multiplying the total of Line 4 and Line I by 52 (weeks) and multiplying the product of that multiplication by . 06 to arrive at the amount the custodial parent must spend on the uninsured health care costs of the parties' child(ren) in any calendar year before the non custodial parent is required to contribute toward payment of those uninsured costs. For example, if line 4 is $150.00 per week and Line I is $25.00 per week, the calculation would be as follows: $150.00 + $25.00 — $175.00 x 52 — $9,100.00 x .06 — $546.00. Thus, on an annual basis, the custodial parent is required to spend $546.00 for health care of the child(ren) before the non custodial parent is required to contribute. The custodial parent must document the $546.00 on health care. After the custodial parent's obligation for ordinary uninsured health care expenses is computed, provision should be made for the uninsured health care expenses that may exceed that amount. The excess costs should be apportioned between the parties according to the Percentage Share of Income computed on Line 2 of the worksheet. Where imposing such percentage share of the uninsured costs may work an injustice, the court may resort to the time honored practice of splitting uninsured health care costs equally, or by using other methods. ~~As a practical matter, it may be wise to spell out with specificity in the order what~~ uninsured expenses are covered and a schedule for the periodic payment of these expenses. For example, a chronic long term condition might necessitate weekly payments of the uninsured expense. The order may include any reasonable medical, dental, hospital, pharmaceutical and psychological expenses deemed necessary for the health care of the child(ren). If it is intended that such things as aspirin, vitamins and band-aids be covered, the order should specifically state that such non-prescription health care items are covered. There arc also situations where major health care costs arc incurred for a single event such as orthodontics or major injuries. For financial reasons, this may require the custodial parent to pay the provider for the amount not covered by insurance over a number of years. The 6% rule applies to expenses actually paid by the custodial parent each year. ~~The order regarding the payment of the child(ren)'s health expenses should specify which parent will have the responsibility to provide health insurance.~~ ~~Amended July 1, 2003, effective January 1, 2004.~~

GUIDELINE 4. MODIFICATION

The provisions of a child support order may be modified only if there is a substantial and continuing change of circumstances.

Commentary

Substantial and Continuing Change of Circumstances. Before a child support order may be modified in Indiana, it is necessary for a party to demonstrate a substantial and continuing change in circumstances that makes the present order unreasonable or that the amount of support ordered at least twelve (12) months earlier differs from the Guideline amount presently computed by more than twenty percent (20%), see IC 31-16-8-1 regarding dissolution of marriage actions or I.C. 31-14-11-8 regarding paternity actions. A change in circumstances may include a change in the income of the parents, the application of a parenting plan, the failure to comply with a parenting plan or a changes in the expenses of child rearing specifically considered in the Guidelines. If the amount of support computed at the time of modification is significantly higher or significantly lower than that previously ordered and would require a drastic reduction in a parent's standard of living, consideration may be given to phasing in the change in support. This approach would allow the parent affected by the change time to make adjustments in his or her standard of living. Again, it is not the intent of the Guidelines to drive the parents into noncompliance by reducing their spendable income below subsistence level. Retroactive modification. The modification of a support obligation may only relate back to the date the petition to modify was filed, and not an earliear date, subject to two exceptions: (1) when the parties have agreed to and carried out an alternative method of payment which substantially complies with the spirit of the decree; or (2) the obligated parent takes the child into the obligated parent's home and assumes custody, provides necessities, and exercises parental control for a period of time that a permanent change of custody is exercised. Emancipation: Support Orders for Two or More Children. Support orders for two or more children, under the Guidelines, are stated as an in gross or total amount rather than on a per child basis. The total obligation will not decrease when the oldest child reaches twenty-one (21) years of age, or upon the occurrence of some other series of events that gives rise to emancipation, absent judicial modification of the order. Conversely, the law recognizes that where an order is framed in terms of an amount per child, an abatement of respective shares will occur upon each child's emancipation. The concept of a pro-rata delineation of support is generally inconsistent with the economic policy underlying the Guidelines (See "Economic Data Used in Developing Guidelines" in "Commentary" to Support Guideline 1). That policy recognizes that the amount of support required for two children is 1.5 times that required to support one child. The multiplication factor decreases as the number of children increases. If support were reduced by one half when the first of two children was emancipated, the remaining amount of support would be significantly below the Guideline amount for one child at the same parental income levels. Support orders may, however, be framed to allow for automatic abatement of support upon the emancipation of the first child if that emancipation is by reaching age twenty-one (21) or by virtue of some other significant event that will not be disputed between the parties. EXAMPLE: Assume a combined weekly adjusted income of $1,000.00 provided solely by the noncustodial parent, and an order for support of three children. No other factors being considered, a support order would provide for payment of $285 per week for three children; $228 weekly upon the oldest child reaching age twenty-one (21) years of age; and $152 per week after the second oldest child reaches twenty-one (21), to and until the youngest child's twenty-first birthday, unless otherwise modified by the court. It is recommended that such a delineation should be an exception and not the rule. It is incumbent upon counsel who represent parents to attempt to familiarize them with the need to judicially amend the order of support when children are emancipated and to discuss with the parties what constitutes emancipation. ~~Amended July 1, 2003, effective January 1, 2004.~~

GUIDELINE 5. FEDERAL STATUTES

These guidelines have been drafted in an attempt to comply with, and should be construed to conform with applicable federal statutes.

Commentary

Every attempt was made to draft Guidelines for the state of Indiana that would comply with applicable federal statutes and regulations. Likewise, careful attention was paid to state law.

GUIDELINE 6. ADDITIONAL COMMENTARY PARENTING TIME CREDIT

~~Additional Commentary is offered to assist courts, practitioners and litigants in the application of the guidelines.~~ A credit should be awarded for the number of overnights each year that the child(ren) spend with the non-custodial parent.

Commentary

~~Parenting Time and Child Support~~ Analysis of Support Guidelines. The Indiana Child Support Guidelines are based on the assumption the child(ren) live in one household with primary physical custody in one parent who undertakes all of the spending on behalf of the child(ren). There is a rebuttable presumption the support calculated from the Guideline support schedule is the correct amount of weekly child support to be awarded. The total amount of the anticipated average weekly spending is the Basic Child Support Obligation (Line 4 of the Worksheet).

The Guideline support schedules do not reflect the fact, however, when both parents exercise parenting time, out-of-pocket expenses will be incurred for the child(ren)'s care. These expenses were recognized previously by the application of a 10% visitation credit and a 50% abatement of child support during periods of extended visitation. The visitation credit was based on the regular exercise of alternate weekend visitation which is equivalent to approximately 14% of the annual overnights. With the adoption of the Indiana Parenting Time Guidelines, the noncustodial parent's share of parenting time, if exercised, is equivalent to approximately 27% of the annual overnights. As a result, these revisions provide a parenting credit based upon the number of overnights with the noncustodial parent ranging from 52 overnights annually to equal parenting time. As parenting time increases, a proportionally larger increase in the credit will occur. ~~Modification of Child Support Based on Parenting Time.~~ A change in a child support order through the application of a parenting time credit does not constitute good cause for modification of the order unless the modification meets the requirements of Guideline 4. Analysis of Parenting Time Costs. An examination of the costs associated with the sharing of parenting time reveals two types of expenses are incurred by both parents, transferred and duplicated expenses. A third category of expenses-, is controlled expenses , such as the 6% uninsured health care expense, remains the sole obligation of the parent for whom the parenting time-credit is not calculated. This latter category is assumed to be equal to 15% of the Basic Child Support Obligation. Transferred Expenses. This type of expense is incurred only when the child(ren) reside with a parent and these expenses are "transferred" with the child(ren) as they move from one parent's residence to the other. Examples of this type of expense are food and the major portion of spending for transportation. When spending is transferred from one parent to the other parent, the other parent should be given a credit against that parent's child support obligation since this type of expense is included in the support calculation schedules. When parents equally share in the parenting, an assumption is made that 35% of the Basic Child Support Obligation reflects "transferred" expenses. The amount of expenses transferred from one parent to the other will depend upon the number of overnights the child(ren) spend with each parent. Duplicated Fixed Expenses. This type of expense is incurred when two households are maintained for the children. An example of this type of expense is shelter costs which are not transferred when the child(ren) move from one parent's residence to the other but remain fixed in each parent's household and represent duplicated expenditures. The fixed expense of the parent who has primary physical custody is included in the Guideline support schedules. However, the fixed expense of the other parent is not included in the support schedules but represents an increase in the total cost of raising the child(ren) attributed to the parenting time plan. Both parents should share in these additional costs. When parents equally share in the parenting, an assumption is made that 50% of the Basic Child Support Obligation will be "duplicated." When the child(ren) spend less time with one parent, the percentage of duplicated expenses will decline. Controlled Expenses. This type of expense for children is typically paid by the custodial parent and is not transferred or duplicated. Controlled expenses are items like clothing, education, school books and supplies, ordinary uninsured health care and personal care. For example, the custodial parent buys a winter coat for the child. The noncustodial parent will not buy another one. The custodial parent controls this type of expense. The controlled expenses account for 15% of the cost of raisins the child. The parenting time credit is based on the more time the parents share, the more expenses are duplicated and transferred. The controlled expenses are not shared and remain with the parent that does not get the parenting time credit. Controlled expenses are generally not a consideration unless there is equal parenting time. These categories of expenses are not pertinent for litigation. They are presented only to explain the factors used in developing the parenting time credit formula. The percentages were assigned to these categories after considering the treatment of joint custody by other states and examining published data from the Bureau of Labor Statistics' Consumer Expenditure Survey. Computation of Parenting Time Credit. The computation of the parenting time credit ~~apportionment of credit for "transferred" and "duplicated expenses~~ will require a determination of the annual number of overnights of parenting time exercised by the parent who is to pay child support, the use of the standard Child Support Obligation Worksheet, a Parenting Time Table, and a Parenting Time Credit Worksheet. An overnight will not always translate into a twenty-four hour block of time with all of the attendant costs and responsibilities. It should include, however, the costs of feeding and transporting the child, attending to school work and the like. Merely providing a child with a place to sleep in order to obtain a credit is prohibited. The Parenting Time Table (Table PT) begins at 52 overnights annually or the equivalent of alternate weekends of parenting time only. If the parenting plan is for fewer overnights because the child is an infant or toddler (Section II A of the Parenting Time Guidelines), the court may consider granting the noncustodial parent an appropriate credit for the expenses incurred when caring for the child. If the parenting plan is for fewer overnights due to a significant geographical distance between the parties, the court may consider granting an appropriate credit. The actual cost of transportation should be treated as a separate issue. If the parents are using the Parenting Time Guidelines without extending the weeknight period into an overnight, the noncustodial parent will be exercising approximately 98 overnights. Parenting Time Table. The TOTAL column represents the anticipated total out-of-pocket expenses expressed as a percentage of the Basic Child Support Obligation that will be incurred by the parent who will pay child support. The total expenses are the sum of transferred and duplicated expenses. The DUPLICATED column represents the duplicated expenses and reflects the assumption that when there is an equal sharing of parenting time, 50% of the Basic Child Support Obligation will be duplicated. The Number of Annual Overnights column will determine the particular fractions of TOTAL and DUPLICATED to be used in the Parenting Time Credit Worksheet.

Table PT

ANNUAL OVERNIGHTS FROM TO TOTAL DUPLICATED 1 51 0.000 0.000 52 55 0.062 0.011 56 60 0.070 0.014 61 65 0.080 0.020 66 70 0.093 0.028 71 75 0.108 0.038 76 80 0.127 0.052 81 85 0.150 0.070 86 90 0.178 0.093 91 95 0.211 0.122 96 100 0.250 0.156 101 105 0.294 0.195 106 110 0.341 0.237 111 115 0.388 0.280 116 120 0.434 0.321 121 125 0.476 0.358 126 130 0.513 0.390 131 135 0.544 0.417 136 140 0.570 0.438 141 145 0.591 0.454 146 150 0.609 0.467 151 155 0.623 0.476 156 160 0.634 0.483 161 165 0.644 0.488 166 170 0.652 0.491 171 175 0.660 0.494 176 180 0.666 0.495 181 183 0.675 0.500 Parenting Time Credit Worksheet (Credit Worksheet). In determining the credit, take the following steps:

1. Complete the Child Support Obligation Worksheet through Line 6.

2. Enter on Line 1PT of the Credit Worksheet the annual number of overnights exercised by the parent who will pay child support.

3. Enter on Line 2PT of the Credit Worksheet the Basic Child Support Obligation (Line 4 from the Child Support Obligation Worksheet).

4. Enter on Line 3PT of the Credit Worksheet the figure from the TOTAL column that corresponds to the annual overnights exercised by the parent who will pay child support.

5. Enter on Line 4PT of the Credit Worksheet the figure from the DUPLICATED column that corresponds to the annual number of overnights exercised by the parent who will pay child support.

6. Enter on Line 5PT of the Credit Worksheet the percentage share of the Combined Weekly Income of the parent who will pay child support (Line 2 of the Child Support Obligation Worksheet).

7. Complete Lines 6PT through 9PT to determine the allowable credit.

8. Enter the result from Line 9PT on Line 7 of the Child Support Obligation Worksheet as the Parenting Time Credit.

9. Apply the Line 7 Adjustments to determine the recommended Child Support Obligation (Line 8 of the Child Support Obligation Worksheet).

Parenting Time Credit Worksheet

Parenting Time Credit Worksheet

Line: 1PT Enter Annual Number of Overnights 2PT Enter Weekly Basic Child Support Obligation — BCSO (Enter Line 4 from Child Support Worksheet) 3PT Enter Total Parenting Time Expenses as a Percentage of the BCSO (Enter Appropriate TOTAL Entry from Table PT) 4PT Enter Duplicated Expenses as a Percentage of the BCSO (Enter Appropriate DUPLICATED Entry from Table PT) 5PT Parent's Share of Combined Weekly Income (Enter Line 2 from Child Support Worksheet)______________________ 6PT Average Weekly Total Expenses during Parenting Time (Multiply Line 2PT times Line 3PT) 7PT Average Weekly Duplicated Expenses (Multiply Line 2PT times Line 4PT) 8PT Parent's Share of Duplicated Expenses (Multiply Line 5PT times Line 7PT) 9PT Allowable Expenses during Parenting Time (Line 6PT — Line 8PT) Enter Line 9PT on Line 7 of the Child Support Worksheet as the Parenting Time Credit Application of Parenting Time Credit. Parenting Time Credit is not automatic. The court should determine if application of the credit will jeopardize a parent's ability to support the child(ren). If such is the case, the court should consider a deviation from the credit. The Parenting Time Credit is earned by performing parental obligations as scheduled and is an advancement of weekly credit. The granting of the credit is based on the expectation the parties will comply with a parenting time order. A parent who does not carry out the parenting time obligation may be subject to a reduction or loss of the credit, financial restitution, or any other appropriate remedy. However, missed parenting time because of occasional illness, transportation problems or other unforeseen events should not constitute grounds for a reduction or loss of the credit, or financial restitution. Consistent with Parenting Time Guideline s ~~Section 1, E. 2.,~~ if court action is initiated to reduce the parenting time credit because of a failure to exercise scheduled parenting time, the parents shall enter mediation unless otherwise ordered by the court. Other Child Rearing Expenses. The economic data used in developing the Child Support Guideline schedules do not include components related to those expenses of an 'optional' nature such as costs related to summer camp, soccer leagues, scouting and the like. When both parents agree that the child(ren) may participate in optional activities, the parents should pay their pro rata share of these expenses. In the absence of an agreement relating to such expenses the issue should be referred to the court for resolution. If the parents or the court determine that the child(ren) may participate in optional activities, the method of sharing the expenses shall be set forth in the entry. Contents of Agreements/Decrees. Orders establishing custody and child support shall set forth the specifics of the parties' parenting time plan in all cases. A reference to the Indiana Parenting Time Guidelines will suffice if the parties intend to follow the Guidelines. All such entries shall be accompanied by a copy of the Child Support Obligation Worksheet and the Parenting Time Credit Worksheet. In every instance the court shall designate one parent who is receiving support and shall be responsible for payment of the uninsured health care expenses up to 6% of the basic child support obligation. If the Court determines it is necessary to deviate from the parenting time credit, it shall state its reasons in the order. Split Custody and Child Support In those situations where each parent has physical custody of one or more children (split custody), it is suggested that support be computed by completing the child support obligation worksheets in the following manner :

1. Compute the support a father would pay to a mother for the children in her custody as if they were the only children of the marriage.

2. Compute the support a mother would pay to a father for the children in his custody as if they were the only children of the marriage.

3. Subtract the lesser from the greater support amount. The parent who owes the remaining amount pays the difference to the other parent on a weekly basis.

This method of computation takes into account the fact that the first child in each home is the most expensive to support, as discussed in the commentary to Guideline 1. Child Support When Parenting Time Is Equally Shared. A frequent source of confusion in determining child support arises in cases where parents equally share the parenting time with the children. Parenting time is considered equally shared when it is 181 to 183 overnights per year. To determine child support in these cases, either the mother or father must be designated as the parent who will pay the controlled expenses. Then, the other parent is given the parenting time credit. The controlled expenses remain the sole obligation of the parent for whom the parenting time credit is not calculated. When both parents equally share parenting time, the court must determine which parent will pay the controlled expenses. If, for example, father is the parent paying controlled expenses, the parenting time credit will be awarded to the mother.

Factors courts should use in assigning the controlled expenses to a particular parent include the following areas of inquiry :

— Which parent has traditionally paid these expenses.

— Which parent is more likely to be able to readily pay the controlled expenses.

— Which parent more frequently takes the child to the health care provider.

— Which parent has traditionally been more involved in the child's school activities (since much of the controlled expenses concern school costs, such as clothes, fees, supplies, and books.)

This determination requires a balancing of these and other factors. Once the court assigns responsibility for these controlled expenses, the court should award the other parent the Parenting Time Credit. When the assignment of the controlled expenses occurs, calculation of the child support in shared custody situations is fairly basic, and is completed by application of the remainder of these Guidelines. Tax Exemptions. Development of these Guidelines did not take into consideration the awarding of the income tax exemption. Instead, it is recommended that each case be reviewed on an individual basis and that a decision be made in the context of each case. Judges and practitioners should be aware that under current law the court cannot award an exemption to a parent, but the court may order a parent to release or sign over the exemption for one or more of the children to the other parent pursuant to I.R.C. s 152(e).To effect this release, the parent releasing the exemption must sign and deliver to the other parent I.R.S. Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents. The parent claiming the exemption must then file this form with his or her tax return. The release may be made, pursuant to the Internal Revenue Code, annually, for a specified number of years or permanently. Judges may wish to consider ordering the release to be executed on an annual basis, contingent upon support being current at the end of the calendar year for which the exemption is ordered as an additional incentive to keep support payments current. It may also be helpful to specify a date by which the release is to be delivered to the other parent each year. Shifting the exemption for minor children does not alter the filing status of either parent. ~~In determining when to order a release of exemptions, it is recommended that at minimum the following factors be considered~~ :

~~(1) the value of the exemption at the marginal tax rate of each parent;~~

~~(2) the income of each parent;~~

~~(3) the age of the child(ren) and how long the exemption will be available;~~

~~(4) the percentage of the cost of supporting the child(ren) borne by each parent; and~~

~~(5) the financial burden assumed by each parent under the property settlement in the case.~~

Cost of Transportation for Parenting Time. Courts should not automatically require the noncustodial parent to bear the entire expense for transportation of the child(ren) for purposes of parenting time. Among other factors, consideration should be given to the reason for the geographic distance between the parties and the financial resources of each party. The Parenting Time Guidelines require the noncustodial parent to provide tranportation for the child(ren) at the start of the scheduled parenting time, and the custodial parent to provide transportation for the child(ren) at the end of the scheduled parenting time. There is no specific provision in the Child Support Guidelines for an assignment of costs or a credit for transportation on the child support worksheet. Transportation costs are part of the transferred expenses. When transportation costs are significant, the Court may address transportation costs as a deviation from the child support calculated by the worksheet, or may address transportation as a separate issue from child support. Consideration should be given to the reason for the geographic distance between the parties and the financial resources of each party. The relocation statute provides that one factor in modifying child support in conjunction with parent relocation is the hardship and expense involved for the nonrelocating individual to exercise parenting time. Accountability of the Custodial Parent for Support Received. Quite commonly noncustodial parents request, or even demand, that the custodial parent provide an accounting for how support money is spent. While recognizing that in some instances an accounting may be justified, the Committee does not recommend that it be routinely used in support orders. The Indiana Legislature apparently recognized that an accounting may sometimes be needed when, in 1985, it passed into law IC 31 1 11.5 13(e), now IC 31 16 9 6. At the time of entering an order for support, or at any time thereafter, the court may make an order, upon a proper showing of the necessity therefore, requiring the spouse or other person receiving such support payments to render an accounting to the court of future expenditures upon such terms and conditions as the court shall decree. It is recommended that an accounting be ordered upon a showing of reasonable cause to believe that child support is not being used for the support of the child. However, an order for an accounting should not be made in cases where support received by the custodial parent is $50.00 or less per week. This provision is prospective in application and discretionary with the court. An accounting may not be ordered as to support payments previously paid. ~~A custodial parent may be able to account for direct costs (clothing, school expenses~~ , music lessons, etc.) but it should be remembered that it is extremely difficult to compile indirect costs (a share of housing, transportation, utilities, food, etc.) with any degree of accuracy. If a court found that a custodial parent was diverting support for his or her own personal use, the remedy is not clear. Perhaps, the scrutiny that comes with an accounting would itself resolve the problem. ~~Emancipation: Support Orders for Two or More Children. Support orders for two or~~ more children, under the Guidelines, are stated as an in gross or total amount rather than on a per child basis. The total obligation will not decrease when the oldest child reaches twenty-one (21) years of age, or upon the occurrence of some other series of events that gives rise to emancipation, absent judicial modification of the order. Conversely, the law recognizes that where an order is framed in terms of an amount per child, an abatement of respective shares will occur upon each child's emancipation. The concept of a pro rata delineation of support is generally inconsistent with the economic policy underlying the Guidelines (See "Economic Data Used in Developing Guidelines" in "Commentary" to Support Guideline 1). That policy recognizes that the amount of support required for two children is 1.5 times that required to support one child. The multiplication factor decreases as the number of children increases. If support were reduced by one half when the first of two children was emancipated, the remaining amount of support would be significantly below the Guideline amount for one child at the same parental income levels. Support orders may, however, be framed to allow for automatic abatement of support upon the emancipation of the first child if that emancipation is by reaching age twenty-one (21) or by virtue of some other significant event that will not be disputed between the parties. EXAMPLE: Assume a combined weekly adjusted income of $1,000.00 provided solely by the noncustodial parent, and an order for support of three children. No other factors being considered, a support order would provide for payment of $285 per week for three children; $228 weekly upon the oldest child reaching age twenty one (21) years of age; and $152 per week after the second oldest child reaches twenty one (21), to and until the youngest child's twenty first birthday, unless otherwise modified by the court. It is recommended that such a delineation should be an exception and not the rule. It is incumbent upon counsel who represent parents in dissolutions to attempt to familiarize them with the need to judicially amend the order of support when children are emancipated and to discuss with the parties what constitutes emancipation.

Extraordinary Educational Expenses

The data upon which the Guideline schedules are based include a component for ordinary educational expenses. Any extraordinary educational expenses incurred on behalf of a child shall be considered apart from the total basic child support obligation. Extraordinary educational expenses may be for elementary, secondary or post secondary education, and should be limited to reasonable and necessary expenses for attending private or special schools, institutions of higher learning, and trade, business or technical schools to meet the particular educational needs of the child. a. Elementary and Secondary Education. If the expenses are related to elementary or secondary education, the court may want to consider whether the expense is the result of a personal preference of one parent or whether both parents concur; if the parties would have incurred the expense while the family was intact; and whether or not education of the same or higher quality is available at less cost. b. Post Secondary Education. The authority of the Court to award post secondary educational expenses is derived from IC 31-16 6 2. It is discretionary with the court to award post secondary educational expenses and in what amount. In making such a decision, the court should consider post secondary education to be a group effort, and weigh the ability of each ~~parent to contribute to payment of the expense, as well as the ability of the student to pay a portion of the expense.~~ If the Court determines that an award of post secondary educational expenses is appropriate, it should apportion the expenses between the parents and the child, taking into consideration the incomes and overall financial condition of the parents and the child, education gifts, education trust funds, and any other education savings program. The court should also take into consideration scholarships, grants, student loans, summer and school year employment and other cost reducing programs available to the student. These latter sources of assistance should be credited to the child's share of the educational expense unless the court determines that it should credit a portion of any scholarships, grants and loans to either or both parents' share(s) of the education expense. Current provisions of the Internal Revenue Code provide tax credits and preferences which will subsidize the cost of a child's post secondary education. While tax planning on the part of all parties will be needed to maximize the value of these subsidies, no one party should disproportionately benefit from the tax treatment of post secondary expenses. Courts may consider who may be entitled to claim various education tax benefits and tax exemptions for the minor child(ren) and the total value of the tax subsidies prior to assigning the financial responsibility of post-secondary expenses to the parents and the child. A determination of what constitutes educational expenses will be necessary and will generally include tuition, books, lab fees, supplies, student activity fees and the like. Room and board will also be included when the student resides on campus or otherwise is not with the custodial parent. The impact of an award of post- secondary educational expenses is substantial upon the custodial and non-custodial parent and a reduction of the basic child support obligation attributable to the child in question will be required when the child resides on campus or otherwise is not with the custodial parent. ~~A consideration of the foregoing factors is addressed in the Worksheet en Post Secondary Education Expense which should be utilized in making a fair distribution of this expense.~~ The court should require that a student maintain a certain minimum level of academic performance to remain eligible for parental assistance and should include such a provision in its order. The court should also consider requiring the student or the custodial parent provide the non-custodial parent with a copy of the child's high school transcript and each semester or trimester post secondary education grade report. The court may limit consideration of college expenses to the cost of state supported colleges and universities or otherwise may require that the income level of the family and the achievement level of the child be sufficient to justify the expense of private school. The court may wish to consider in the category of "Other" educational costs (Line B(5) of the Worksheet) such items as transportation, car insurance, clothing, entertainment and incidental expenses. ~~c. Use of Post Secondary Education Worksheet~~ ~~The Worksheet makes two determinations. Section One determines the obligation of each~~ parent for payment of post-secondary education expenses based upon his or her pro-rata share of the weekly adjusted income from the Child Support Obligation Worksheet after contribution from the student toward those costs. The method of paying such obligation should be addressed in the court's order. When the student remains at home with the custodial parent while attending an institution of higher learning, generally no reduction to the non-custodial parent's support obligation will occur and Section Two of the worhsheet need not be completed. Section Two determines the amount of each parent's weekly support obligation for the student who does not live at home year round. The amount attributable to the student while at home has been annualized to avoid weekly variations in the order. It further addresses the provisions of IC 31 16-6-2(b) which require a reduction in the child support obligation when the court orders the payment of educational expanses which arc duplicated or would otherwise be paid to the custodial parent. In determining the reduction, the student is treated as emancipated. This treatment recognizes that the diminishing marginal effect of additional children is due to economics of scale in consumption and not the age of the children. A second child becomes the "first child" in terms of consumption and the custodial parent will receive Guideline child support on that basis. Section Two applies when the parties' only child attending school does not reside with the custodial parent while attending school, as well as when the parties have more than one child and one resides away from home while attending school and the other child(ren) remain at home. Line E of the Worksheet determines the percentage of the year the student lives at home. Line F is used to enter the basic child support obligation, from the Guideline Schedules for all of the children of the parties including the student who docs not live at home year round. Line G is used to enter the amount of support for those children who are not living away from home. If the student is the only child, Line G will be $0.00. The difference between Lines F and G is the total support obligation attributable to the student. This is entered on Line H. By multiplying the percentage of the year the student lives at home, times the support obligation attributable to the student, the worksheet pro rates to a weekly basis the total support obligation attributed to the student. This is computed on Line I and the result is included in the uninsured health care expense calculation. The parents' pro rata share of this obligation is computed in Line J. This result is included in section 7 of the Child Support Obligation Worksheet. a. The One Child Situation. When the parties' only child is a student who docs not live at home with the custodial parent while attending school, Section Two establishes the weekly support obligation for that child on Line I. The regular Child Support Obligation Worksheet should be completed through Line 5 for that child and the annualized obligation from Line J of the Post Secondary Education Worksheet is entered on Line 7 with an explanation of the deviation in the order or decree. b. The More Than One Child Situation. When the parties have more than one child, Section Two requires the preparation of a regular Child Support Obligation Worksheet applicable only to the child(ren) who regularly reside with the custodial parent, and for a determination of that support obligation. The annualized obligation from Line (J) of the Education Worksheet is then inserted on Line 7 of the regular support Worksheet as an addition to the Parent's Child Support Obligation on Line 6. An explanation of the increase in the support obligation should then appear in the order or decree. ~~In both situations the Child Support Obligation Worksheet and the Post Sccondary Education Worksheet must be filed with the court. This includes cases in which agreed orders~~ When more than one child lives away from home while attending school. Section One of the Post Secondory Education Worksheet should be prepared for each child. However, Section Two should be completed once for all children living away from home while attending school. The number used to fill in the blank in Line E should be the average number of weeks these children live at home. For example, if one child lives at home for ten (10) weeks and another child lives at home for sixteen (16) weeks, the average number of weeks will be thirteen (13). This number would then be inserted in the blank on Line E which is then divided by 52 weeks.

GUIDELINE 7. HEALTH CARE / MEDICAL SUPPORT

The court shall order one or both parents to provide private health care insurance when accessible to the child at a reasonable cost.

Accessibility. Private insurance is accessible if it covers the geographic area in which the child lives. The court may consider other relevant factors such as the managed care regions used by Hoosier Healthwise, the accessibility and comprehensiveness of covered services and likely continuation of coverage. Reasonable cost. The cost of private health insurance for child(ren) is considered reasonable, if it does not exceed five percent (5%) of the weekly gross income of the parent obligated to provide medical support. The cost of private health insurance for the children is not considered reasonable when it is combined with that party's share of the total child support obligation (line 4 of the worksheet) and that sum exceeds fifty percent (50%) of the gross income of the parent responsible for providing medical support. A consideration of the foregoing factors is addressed in the Health Insurance Premium Worksheet (HIPW), which should be utilized in determining the appropriate adjustments for the children's health insurance on the Child Support Obligation Worksheet. Cash medical support. When private health care insurance is not accessible to the children at a reasonable cost, federal law requires the court to order the parties to pay cash medical support. Cash medical support is an amount ordered for medical costs not covered by insurance. The uninsured medical expense apportionment calculation on the Child Support Obligation Worksheet, "the 6% rule," satisfies this federal requirement for a cash medical support order, when incorporated into the court order. Explanation of 6% rule/uninsured health care expenses. The data upon which the Guideline schedules are based include a component for ordinary health care expenses. Ordinary uninsured health care expenses are paid by the parent who is assigned to pay the controlled expenses (the parent for whom the parenting time credit is not calculated) up to six percent (6%) of the basic child support obligation (Line 4 of the child support obligation worksheet.) Extraordinary health care expenses are those uninsured expenses which are in excess of six percent (6%) of the basic obligation, and would include uninsured expenses for chronic or long term conditions of a child. Calculation of the apportionment of the health care expense obligation is a matter separate from the determination of the weekly child support obligation. These calculations shall be inserted in the space provided on the Worksheet. Birth expense. The Court may order the father to pay a percentage of the reasonable and necessary expenses of the mother's pregnancy and childbirth, as part of the Court's decree in child support actions. The costs to be included in apportionment are pre-natal care; delivery; hospitalization; and post-natal care. The paternity statutes require the father to pay at least 50% of the mother's pregnancy and childbirth expenses.

Commentary

Health insurance premiums.

The court is federally mandated to order accessible private health care insurance if the cost is at or below 5% of the weekly gross income of a parent as indicated in the child support obligation worksheet. If above 5% of weekly gross income, the court has discretion to require the health insurance premium be paid by a parent if the court indicates the reason for the deviation. The 50% cap is not a federal requirement. The basis is the Consumer Credit Protection Act (CCPA) income withholding limits. The 50% cap places less burden on employers when they do income withholding. Without the cap, they would have to figure out whether to withhold child support or health insurance first and how to divide what they can legally withhold. One of the most common questions employers ask child support agencies in states without a cap concerns cases where the combined amount does exceed the CCPA cap. In addition to being less burdensome on employers, it is also commonsense not to set child support at more than what can be legally withheld. Indiana already has that attribute as evident in the last column of the schedule. When parents agree one or both parents will provide private health insurance, the HIPW need not be completed and filed. Private health insurance coverage should normally be provided by the parent who can obtain the most comprehensive coverage at the least cost. If a separate policy of private insurance is purchased for the children, determining the weekly cost should be no problem, but in the most common situation coverage for the child(ren) will occur through an employer group plan. If the employer pays the entire cost of coverage, no addition to the basic obligation will occur. If there is an employee cost, it will be necessary for the parent to contact his or her employer or insurance provider to obtain appropriate documentation of the parent's cost for the child(ren)'s coverage. At low income levels, giving the noncustodial parent credit for payment of the private health insurance premium may reduce support to an unreasonably low amount. In such instance the Court may, in the exercise of its discretion, deny or reduce the credit. A number of different circumstances may exist in providing private health insurance coverage, such as a situation in which a subsequent spouse or child(ren) are covered at no additional cost to the parent who is paying for the coverage. The treatment of these situations rests in the sound discretion of the court, including such options as prorating the cost. There may be situations where neither parent has the opportunity or ability to afford private health insurance. In those cases, the court may direct the parties to investigate the cost of health insurance and/or may require the parties to obtain health insurance when it is reasonable and accessible. Where one or both parents have a history of changing jobs and/or health insurance providers both parents may be ordered to carry health insurance when it becomes available at reasonable cost to the parent. Where one parent has a history of maintaining consistent insurance coverage for the children, there is no need to order both parents to provide health insurance for the children. The court may order both parents to provide health insurance and in those cases both parents should have the cost of the children's portion of the health insurance premium included in the calculation of the support order. In such cases both parents receive a credit.

Completion of the Health Insurance Premium Worksheet (HIPW) Section One: Calculation of Reasonable Cost Threshold

Line A : Enter each parent's Weekly Gross Income in the appropriate columns, carrying the numbers from Line 1 of the Child Support Worksheet (CSOW) .

Line B : Calculate the reasonable cost threshold by multiplying the amount on Line A times five percent (.05). This amount becomes the "reasonableness" threshold against which the weekly health insurance premium is compared.

Section Two: Determination of Private Health Insurance Available to the Parents

Line C : This line is intended to record, for each parent, whether private health insurance is available. Availability is not strictly limited to insurance available through employment. For example, insurance may be available through a union or another group insurance plan, could be available through COBRA, or could be obtained as an individual private insurance plan. If insurance is not available, the rest of the HIPW need not be completed. However, the court has discretion to order one or both parties to provide health insurance if it becomes available and meets the tests of reasonableness and accessibility.

Section Three: Determination of Whether Premium is Reasonable in Cost

There are two tests to determine if the cost of the health insurance premium is reasonable to a parent. Both tests must be satisfied for the cost to be reasonable. The first test determines whether the health insurance premium cost exceeds five percent of the parent's weekly gross income. The second test determines whether the parent's portion of the child support obligation plus the health insurance premium cost exceeds fifty percent of the parent's weekly gross income.

Line D : Each party should have determined the weekly cost of premiums prior to completing the worksheet. The cost should be for the "child's portion only." This is the cost of the child's portion, if known, or the difference between the cost of insuring a single party versus the cost of family coverage.

Line E, Test One : The first test of reasonableness compares the cost of the weekly premium with the "reasonable cost threshold." The cost of the health insurance premium cannot exceed five percent of the parent's weekly gross income. For each parent, compare the amount on Line D to the amount on Line B. If the amount on Line D is less than the amount on Line B. mark "yes" and proceed to Line F. If the amount on Line D is not less than the amount on Line B, mark "no" and the rest of the HIPW for that parent need not be completed.

Line F , Test Two : The second test of reasonableness ensures that a parent's cost of his or her child support obligation added to any health insurance premium that is ordered does not exceed fifty percent of the his or her gross income. For this test, add the Basic Child Support Obligation amount from Line 4 of the CSOW to the weekly health insurance premium cost from Line D of the HIPW. If this amount is equal to or less than fifty percent of the Parent's Weekly Gross Income, mark "yes" and proceed to Line G. If this amount is more than fifty percent of the Parent's Weekly Gross Income, mark "no" and the rest of the HIPW need not be completed for that parent.

Section Four: Accessibility of the Insurance

Line G : This line indicates whether the health insurance coverage is accessible for the child(ren). For example, this line tests the geographical coverage of the health insurance. If parents live in different States or different areas of the same State, health insurance that one parent has may not be accessible to the child. See Guideline 7 for more information. For each parent, mark "yes" or "no."

Section Five: Parent(s) Ordered to Provide Health Insurance

Line H : On this line, mark the parent or parents where "yes" is marked for Lines C, E, F and G.

Line I : Mark the parent or parents who are ordered to provide health insurance. If both parents are ordered, mark both boxes. Enter the amount from Line D in the box next to the parent(s) who are ordered to provide the insurance, and indicate the "Total Ordered." Please note that the court may use its discretion to order or not order health insurance coverage even when all tests are met or not met.

Apportionment of Uninsured Health Care Expenses. Six percent (6%) of the support amount is for health care. The non-custodial parent is, in effect, prepaying health care expenses every time a support payment is made. Consequently, the Guidelines require that custodial parent bear the cost of uninsured health care expenses up to six percent (6%) of the basic child support obligation found on Line 4 of the child support obligation worksheet and, if applicable, the child support obligation attributable to a student living away from home (Section Two Line I of the post-secondary education worksheet) .

That computation is made by multiplying the total of Line 4 and Line I by 52 (weeks) and multiplying the product of that multiplication by .06 to arrive at the amount the custodial parent must spend on the uninsured health care costs of the parties' child(ren) in any calendar year before the non-custodial parent is required to contribute toward payment of those uninsured costs. For example, if line 4 is $150.00 per week and Line I is $25.00 per week, the calculation would be as follows: $150.00 + $25.00 — $175.00 x 52 — $9,100.00 x .06 — $546.00. Thus, on an annual basis, the custodial parent is required to spend $546.00 for health care of the child(ren) before the non-custodial parent is required to contribute. The custodial parent must document the $546.00 spent on health care and provide the documentation to the noncustodial parent. After the custodial parent's obligation for ordinary uninsured health care expenses is computed, provision should be made for the uninsured health care expenses that may exceed that amount. The excess costs should be apportioned between the parties according to the Percentage Share of Income computed on Line 2 of the worksheet. Where imposing such percentage share of the uninsured costs may work an injustice, the court may resort to the time-honored practice of splitting uninsured health care costs equally, or by using other methods. The court may prorate the custodial parent's uninsured health care expense contribution when appropriate. As a practical matter, it may be wise to spell out with specificity in the order what uninsured expenses are covered and a schedule for the periodic payment of these expenses. For example, a chronic long-term condition might necessitate weekly payments of the uninsured expense. The order may include any reasonable medical, dental, hospital, pharmaceutical and psychological expenses deemed necessary for the health care of the child(ren). If it is intended that such things as aspirin, vitamins and band-aids be covered, the order should specifically state that such non-prescription health care items are covered. There are also situations where major health care costs are incurred for a single event such as orthodontics or major injuries. For financial reasons, this may require the custodial parent to pay the provider for the amount not covered by insurance over a number of years. The 6% rule applies to expenses actually paid by the custodial parent each year. Birth expenses. There is no statute of limitations barring recovery of birthing expenses , providing the paternity, Title IV-D or child support action is timely filed. The court should be very careful to be sure the claimed expenses are both reasonable and necessary. Birthing expenses include both the expenses incurred by the child as well as by the mother, providing they are directly related to the child's birth. The court should distinguish between "postpartum expenses" and "postnatal expenses. " "Postpartum" expenses are mother's expenses following the birth of the child. "Postnatal" expenses of the child are those expenses directly related to the child's birth. Between the two, only "postnatal" expenses are reimbursable.

GUIDELINE 8. EXTRAORDINARY EXPENSES

Extraordinary Educational Expenses

The data upon which the Guideline schedules are based include a component for ordinary educational expenses. Any extraordinary educational expenses incurred on behalf of a child shall be considered apart from the total basic child support obligation. Extraordinary educational expenses may be for elementary, secondary or post-secondary education, and should be limited to reasonable and necessary expenses for attending private or special schools, institutions of higher learning, and trade, business or technical schools to meet the particular educational needs of the child. a. Elementary and Secondary Education. If the expenses are related to elementary or secondary education, the court may want to consider whether the expense is the result of a personal preference of one parent or whether both parents concur: if the parties would have incurred the expense while the family was intact; and whether or not education of the same or higher quality is available at less cost. b. Post-Secondary Education. The authority of the Court to award post-secondary educational expenses is derived from IC 31-16-6-2. It is discretionary with the court to award post-secondary educational expenses and in what amount. In making such a decision, the court should consider post-secondary education to be a group effort, and weigh the ability of each parent to contribute to payment of the expense, as well as the ability of the student to pay a portion of the expense. If the Court determines that an award of post-secondary educational expenses is appropriate, it should apportion the expenses between the parents and the child, taking into consideration the incomes and overall financial condition of the parents and the child, education gifts, education trust funds, and any other education savings program. The court should also take into consideration scholarships, grants, student loans, summer and school year employment and other cost-reducing programs available to the student. These latter sources of assistance should be credited to the child's share of the educational expense unless the court determines that it should credit a portion of any scholarships, grants and loans to either or both parents' share(s) of the education expense. Current provisions of the Internal Revenue Code provide tax credits and preferences which will subsidize the cost of a child's post-secondary education. While tax planning on the part of all parties will be needed to maximize the value of these subsidies, no one party should disproportionately benefit from the tax treatment of post-secondary expenses. Courts may consider who may be entitled to claim various education tax benefits and tax exemptions for the minor child(ren) and the total value of the tax subsidies prior to assigning the financial responsibility of post-secondary expenses to the parents and the child. A determination of what constitutes educational expenses will be necessary and will generally include tuition, books, lab fees, supplies, student activity fees and the like. Room and board will also be included when the student resides on campus or otherwise is not with the custodial parent. The impact of an award of post-secondary educational expenses is substantial upon the custodial and non-custodial parent and a reduction of the basic child support obligation attributable to the child in question will be required when the child resides on campus or otherwise is not with the custodial parent. A consideration of the foregoing factors is addressed in the Worksheet on Post-Secondary Education Expense which should be utilized in making a fair distribution of this expense. The court should require that a student maintain a certain minimum level of academic performance to remain eligible for parental assistance and should include such a provision in its order. The court should also consider requiring the student or the custodial parent provide the non-custodial parent with a copy of the child's high school transcript and each semester or trimester post-secondary education grade report. The court may limit consideration of college expenses to the cost of state supported colleges and universities or otherwise may require that the income level of the family and the achievement level of the child be sufficient to justify the expense of private school. The court may wish to consider in the category of "Other" educational costs (Line B(5) of the Worksheet) such items as transportation, car insurance, clothing, entertainment and incidental expenses. c. Use of Post-Secondary Education Worksheet The Worksheet makes two determinations. Section One determines the obligation of each parent for payment of post-secondary education expenses based upon his or her pro-rata share of the weekly adjusted income from the Child Support Obligation Worksheet after contribution from the student toward those costs. The method of paying such obligation should be addressed in the court's order. When the student remains at home with the custodial parent while attending an institution of higher learning, generally no reduction to the non-custodial parent's support obligation will occur and Section Two of the worksheet need not be completed. Section Two determines the amount of each parent's weekly support obligation for the student who does not live at home year round. The amount attributable to the student while at home has been annualized to avoid weekly variations in the order. It further addresses the provisions of IC 31-16-6-2(b) which require a reduction in the child support obligation when the court orders the payment of educational expenses which are duplicated or would otherwise be paid to the custodial parent. In determining the reduction, the student is treated as emancipated. This treatment recognizes that the diminishing marginal effect of additional children is due to economies of scale in consumption and not the age of the children. A second child becomes the "first child" in terms of consumption and the custodial parent will receive Guideline child support on that basis. Section Two applies when the parties' only child attending school does not reside with the custodial parent while attending school, as well as when the parties have more than one child and one resides away from home while attending school and the other child(ren) remain at home. Line E of the Worksheet determines the percentage of the year the student lives at home. Line F is used to enter the basic child support obligation, from the Guideline Schedules for all of the children of the parties including the student who does not live at home year round. Line G is used to enter the amount of support for those children who are not living away from home. If the student is the only child, Line G will be $0.00. The difference between Lines F and G is the total support obligation attributable to the student. This is entered on Line H. By multiplying the percentage of the year the student lives at home, times the support obligation attributable to the student, the worksheet pro rates to a weekly basis the total support obligation attributed to the student. This is computed on Line I and the result is included in the uninsured health care expense calculation. The parents' pro rata share of this obligation is computed in Line J. This result is included in section 7 of the Child Support Obligation Worksheet.

a. The One Child Situation. When the parties' only child is a student who does not live at home with the custodial parent while attending school. Section Two establishes the weekly support obligation for that child on Line I. The regular Child Support Obligation Worksheet should be completed through Line 5 for that child and the annualized obligation from Line J of the Post-Secondary Education Worksheet is entered on Line 7 with an explanation of the deviation in the order or decree.

b. The More Than One Child Situation. When the parties have more than one child, Section Two requires the preparation of a regular Child Support Obligation Worksheet applicable only to the child(ren) who regularly reside with the custodial parent, and for a determination of that support obligation. The annualized obligation from Line (J) of the Education Worksheet is then inserted on Line 7 of the regular support Worksheet as an addition to the Parent's Child Support Obligation on Line 6. An explanation of the increase in the support obligation should then appear in the order or decree.

In both situations the Child Support Obligation Worksheet and the Post-Secondary Education Worksheet must be filed with the court. This includes cases in which agreed orders are submitted. When more than one child lives away from home while attending school. Section One of the Post Secondary Education Worksheet should be prepared for each child. However, Section Two should be completed once for all children living away from home while attending school. The number used to fill in the blank in Line E should be the average number of weeks these children live at home. For example, if one child lives at home for ten (10) weeks and another child lives at home for sixteen (16) weeks, the average number of weeks will be thirteen (13). This number would then be inserted in the blank on Line E which is then divided by 52 weeks. Other Extraordinary Expenses. The economic data used in developing the Child Support Guideline schedules do not include components related to those expenses of an 'optional' nature such as costs related to summer camp, soccer leagues, scouting and the like. When both parents agree that the child(ren) may participate in optional activities, the parents should pay their pro rata share of these expenses. In the absence of an agreement relating to such expenses, assigning responsibility for the costs should take into account factors such as each parent's ability to pay, which parent is encouraging the activity, whether the children have historically participated in the activity, and the reasons a parent encourages or opposes participation in the activity. If the parents or the court determine that the child(ren) may participate in optional activities, the method of sharing the expenses shall be set forth in the entry.

GUIDELINE 9. ACCOUNTABILITY, TAX EXEMPTIONS, ROUNDING SUPPORT AMOUNTS

Accountability of the Custodial Parent for Support Received. Quite commonly noncustodial parents request, or even demand, that the custodial parent provide an accounting for how support money is spent. While recognizing that in some instances an accounting may be justified, the Committee does not recommend that it be routinely used in support orders. The Indiana Legislature recognized that an accounting may sometimes be needed when it enacted IC 31-16-9-6. At the time of entering an order for support, or at any time thereafter, the court may make an order, upon a proper showing of the necessity therefore, requiring the spouse or other person receiving such support payments to render an accounting to the court of future expenditures upon such terms and conditions as the court shall decree. It is recommended that an accounting be ordered upon a showing of reasonable cause to believe that child support is not being used for the support of the child. This provision is prospective in application and discretionary with the court. An accounting may not be ordered as to support payments previously paid. A custodial parent may be able to account for direct costs (clothing, school expenses, music lessons, etc.) but it should be remembered that it is extremely difficult to compile indirect costs (a share of housing, transportation, utilities, food, etc.) with any degree of accuracy. If a court found that a custodial parent was diverting support for his or her own personal use, the remedy is not clear. Perhaps, the scrutiny that comes with an accounting would itself resolve the problem. Tax Exemptions. Development of these Guidelines did not take into consideration the awarding of the income tax exemption. Instead, it is recommended that each case be reviewed on an individual basis and that a decision be made in the context of each case. Judges and practitioners should be aware that under current law the court cannot award an exemption to a parent, but the court may order a parent to release or sign over the exemption for one or more of the children to the other parent pursuant to I.R.C. § 152(e). To effect this release, the parent releasing the exemption must sign and deliver to the other parent I.R.S. Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents. The parent claiming the exemption must then file this form with his or her tax return. The release may be made, pursuant to the Internal Revenue Code, annually, for a specified number of years or permanently. Judges may wish to consider ordering the release to be executed on an annual basis, contingent upon support being current at the end of the calendar year for which the exemption is ordered as an additional incentive to keep support payments current. It may also be helpful to specify a date by which the release is to be delivered to the other parent each year. Shifting the exemption for minor children does not alter the filing status of either parent. The noncustodial parent must demonstrate the tax consequences to each parent as a result of releasing the exemption and how the release would benefit the children. In determining when to order a release of exemptions, it is recommended that at minimum the following factors be considered:

(1) the value of the exemption at the marginal tax rate of each parent;

(2) the income of each parent;

(3) the age of the child(ren) and how long the exemption will be available;

(4) the percentage of the cost of supporting the child(ren) borne by each parent;

(5) the financial aid benefit for post-secondary education for the child(ren); and

(6) the financial burden assumed by each parent under the property settlement in the case.

Rounding child support amounts. The amount of child support entered as an order may be expressed as an even amount, by rounding to the nearest dollar. For example, $50.50 is rounded to $51.00 and $50.49 is rounded to $50.00.

Additional Documents :

Amended Child Support Obligation Worksheet Parenting Time Credit Worksheet Post-Secondary Education Worksheet New Health Insurance Premium Worksheet Amended Guideline Schedules for Weekly Support Payments

CHILD SUPPORT OBLIGATION WORKSHEET

State of Indiana Guideline Schedules for Weekly Support Payments

These amendments shall take effect January 1, 2010.

The Clerk of this Court is directed to send a copy of this Order to the clerk of each circuit court of in the state of Indiana; to the Executive Director and President of the Indiana State Bar Association; to the Legislative Services Agency; to the office of Code Revision of the Legislative Services Agency; to the Attorney General of Indiana; to the Indiana Judicial Center; to the Michie Company; to the Supreme Court Administrator; to the Executive Director of State Court Administration; to Cynthia Longest, Deputy Director, Child Support Bureau, Department of Child Services; to Jeffrey Lozer, General Counsel, Department of Child Services, to the Prosecuting Attorneys Council, Public Defenders Council, and to Thomson Reuters for publication in the advance sheets of this Court.

The Clerks of the circuit courts are directed to bring this Order to the attention of all judges within their respective counties and to post this Order for examination by the practicing bar and general public.

Done at Indianapolis, Indiana this 15 ^th day of September, 2009.

SHEPARD, C.J. and DICKSON and BOEHM, JJ, concuring.

SULLIVAN and RUCKER, JJ, concuring in part and dissenting in part.

SULLIVAN and RUCKER, JJ, dissenting in part.

We dissent from those amendments to the Guidelines that have the effect of overruling Grant v. Hager, 868 N.E.2d 801 (Ind. 2007). Grant held that there is a rebuttable presumption that neither parent owes the other support in a circumstance where the Child Support Obligation Worksheet calculation produced a negative amount for the non-custodial parent's child support payment because of the application of the Parenting Time Credit. Under the amendments to the Guidelines approved in this Order, however, there will be a rebuttable presumption in such circumstances that the custodial parent must make child support payments to the non-custodial parent equal to the negative amount.

We believe that the Guidelines' presumption in such circumstances should continue to be that neither parent owes the other support. We also note that, notwithstanding this amendment, the trial court has authority to deviate from the new Guidelines amount and order that neither parent owes the other support based on their respective incomes and parenting time arrangements if the court had concludes that it would be unjust not to do so and the court makes the written finding mandated by Child. Supp. R. 3.

ORDER AMENDING INDIANA ADMINISTRATIVE RULES

Under the authority vested in this Court to provide by rule for the procedure employed in all courts of this state and this Court's inherent authority to supervise the administration of all courts of this state, Administrative Rules 5 Attachment A, 7, 8, 8.1, 9, and 16 are amended to read as follows (deletions shown by ~~striking~~ and new text shown byunderlining):

. . .

Rule 5. Payment and Notification Procedures

. . .

ATTACHMENT A Schedule for Payment of Senior Judges Who Serve as Special Judges And Senior Judges Who Serve as Mediators This Schedule shall take effect September 1, 2005. Revised January 15, 2009

Pursuant to Administrative Rule 5(A)(1), senior judges who serve as special judges are to be paid in accordance with a Schedule published by the Executive Director of the Indiana Supreme Court Division of State Court Administration.

The Trial Rules and Administrative Rules contain four sections which relate to the payment of senior judges who serve as special judges. They are:

1. Trial Rule 79(J), which qualifies a senior judge to serve as a special judge pursuant to local rule;

2. Administrative Rule 5(A)(1), which prohibits a senior judge from collecting special judge pay on the same day he serves as a senior judge;

3. Administrative Rule 5(B)(3)(e), which provides that a former judge serving as a senior judge must retain his/her pre-retirement special judge cases, without senior judge credit, unless specifically approved by the Supreme Court; and

4. Administrative Rule 5(A)(1), which provides that a senior judge who serves as special judges shall be paid in accordance with a Schedule published by the Executive Director of State Court Administration.

The foregoing rules treat a senior judge who has special judge cases in two ways, depending on whether the senior judge acquired jurisdiction of the special judge cases before or after retirement.

In light of the foregoing provisions, the Executive Director, Lilia Judson, now submits this Schedule, in a question and answer format, to the Supreme Court for its approval.

I. Payment Schedule for Senior Judges Who Serve as Special Judges

A. How will a senior judge who hears a "pre-retirement" special judge case be compensated?

If the special judge case predates the senior judge's retirement, the senior judge retains the case as special judge [Admin. R. 5(B)(3)(e)] and receives no senior judge credit for his/her post-retirement service (except when specifically requested of and approved by the Supreme Court). The senior judge will receive compensation for this service only as a special judge.

However, if the "pre-retirement" special judge case comes before the senior judge on a day the senior judge is serving as a senior judge on other matters assigned by the trial court, the senior judge could claim senior judge pay and credit for that day of service, but not special judge pay. Admin. R. 5(A)(1).

B. How will a senior judge who hears a "post-retirement" special judge case be compensated?

A senior judge who hears a special judge case which he/she received after retiring, may claim senior judge pay and credit for the case under Admin.R. 5(B)(6). Such "post retirement" special judge cases will be treated the same as other senior judge work and "a senior judge who serves substantially shorter time than the daily calendar of the court where the judge is serving may, with the permission of the Executive Director, accumulate and consolidate such service times into a day's credit."

C. How will senior judge days be counted by the court in which a senior judge hears special judge cases?

If the senior judge claims senior judge pay and/or credit time while serving on special judge cases in a particular court, that time will be counted toward that court's senior judge day allotment. D. How will a senior judge be compensated when he/she serves as a special judge in a court in which he/she is not appointed as a senior judge? A senior judge who serves as a special judge in a court in which he/she is not appointed as a senior judge cannot receive senior judge pay or senior judge credit for service in that court. He/she can only receive special judge pay.

E. May a senior judge claim service time and/or per diem for traveling to and from a court where he/she serves? No. A senior judge may claim credit only for actual time served in a court. F. May a senior judge claim service time and/or per diem for scheduled senior judge service which is canceled through no fault of the senior judge? No. A senior judge may claim credit only for actual time served in a court.

II. Schedule for Payment of Senior Judges Serving as Mediators.

Indiana Code 33-23-3-3 provides that senior judges may serve as domestic relations mediators but they cannot receive a senior judge per diem as provided in IC 33-23-3-5. A senior judge serving as a domestic relations mediator may receive compensation from the alternative dispute resolution fund under IC 33-23-6 in accordance with the county domestic relations alternative dispute resolution plan. Administrative Rule 5(B)(9) further provides that a senior judge who is also a registered mediator and serves as a mediator in a court-ordered mediation pursuant to IC 33-23-3-3, or on a pro bono basis, may receive senior judge service credit for said mediation service provided that, the senior judge is not compensated at a rate greater than the per diem rate for senior judges.

In light of the foregoing, the Executive Director, Lilia Judson, now submits this Schedule, in question and answer format, for Supreme Court approval.

A. Can a senior judge who mediates pro bono for a court in which he also practices law receive senior judge credit for the mediation?

No. In order to serve as a senior judge, a person must be appointed by the Supreme Court as a senior judge in a particular court. The senior judge cannot be appointed as a senior judge in any court in which the judge practices law.

B. Can a senior judge receive senior judge credit for service as a mediator in a court in which he has not been appointed to serve as a senior judge by the Supreme Court?

No. A senior judge must be appointed to a particular court in order to receive credit and/or per diem for senior judge service in that court.

. . .

Rule 7. Judicial Retention Schedules

. . .

II. PROCEDURE

. . .

CRIMINAL (2)

. . . 35-38-2-2(Executed separate C case Ffile and assign a and Unexecuted) and not criminal miscellaneous case number. for associated with a specific cases adjudicated. Destroy 20 years after criminal case file issuance of warrant. (The prosecuting attorney may request a longer retention period by filing a written request specifying the length of the extended retention period) ~~order for dismissel and for warrant~~ ~~for which no case file exists.~~ 09-2-32.1 Search Warrant Executed 1790 place in separate case file and assign a and associated with specific criminal miscellaneous case number. criminal case file Destroy at the same time as the associated criminal case. If there is more than one associated criminal case, destroy at the same time as the case with the longest retention period. An association with a specific criminal case is created when a notice is filed with the court by the prosecuting attorney stating that a filed criminal case is associated with the executed search warrant. Upon the filing of such a notice, an entry shall be made on the CCS in both cases noting the association. 09-2-32.2 Search Warrants Denied or 1790- + destroy 2 years after order denying issuance Not Executed of search warrant or if search is not executed (No return filed within the 2 year period presumes that warrant was not executed). 9-30-6-5 35-33.5-5-2 35-33.5-5-209-2-38 Grand Jury Recordings and 1881 + Destroy 55 years after date of final Transcriptions — felonies disposition 09-2-38.1 Grand Jury Recordings and 1881+ Destroy 2 years after order to dismiss Transcriptions — dismissed granted felony cases 09-2-38.2 Grand Jury Recordings and 1881 + Destroy 10 years after date of final Transcriptions — disposition misdemeanors 09-2-38.3 Grand Jury Recordings and 1881 + Destroy 1 year after order to dismiss granted Transcriptions — dismissed misdemeanors

85-2-31R Restitution Record (1927)1976- + destroy 6 years after date of last entry. IC 89-2-32R Search Warrants 1790-+ place in -+ 89-2-33R Certificates on Standards 1983-+ destroy 10 years after filing or upon for Breath Test Operators, recordation in Nonjudicial Order Book 89- Equipment Chemicals 1.1-19.1. (IC ) 05-2-34 Dismissed Misdemeanor 9/1881 destroy 1 year after order to dismiss is given. Case Files 05-2-35 Forensic Diversion 2004-+ destroy 6 years after release of individual Program from final discharge. 05-2-36 Wiretap recordings Under 1990-+ Destroy after ten (10) years only upon an IC order of the court that issued the warrant. 05-2-37 Applications for wiretaps 1990- + Destroy after ten (10) years only upon an and corresponding warrants order of the court that issued the warrant. under IC . . .

Rule 8. Uniform Case Numbering System

. . .

23C01 Fountain Circuit Court

23H01 Fountain/Attica City Court

24C01 Franklin Circuit Court 1

24C02 Franklin Circuit Court 2

25C01 Fulton Circuit Court

25D01 Fulton Superior Court

25E01 Fulton County Court (abolished)

. . .

Rule 8.1. Uniform Appellate Case Numbering System

(A) Application. The Clerk of the Supreme Court shall use the uniform case numbering system set forth below for cases filed in the Supreme Court. Court of Appeals and Tax Court. (B) Numbering System. The uniform appellate case numbering system shall consist of four groups of characters arranged in a manner to identify the court, the year/month of filing, the case type and the filing sequence. The following is an example of the case number to be employed:

55S00-0804-SJ-001

(1) Court Identifier. In cases filed in the Supreme Court and the Court of Appeals, and in inheritance tax cases and original tax appeals filed in the Tax Court, the first group of five characters shall constitute the county and the court identifier. The first and second character in this group shall represent the county of the court from which the case is being appealed or the original action arose; the county where the original inheritance tax action arose; or the county designated in the written election filed by the taxpayer in an original tax appeal, or otherwise designated as set forth in Indiana Tax Rule 8(A), employing the same code set forth in Administrative Rule 8(B)(1).

The third character in the first group shall represent the court in which the proceeding is being filed employing the following codes:

S_____Supreme Court A_____Court of Appeals T_____Tax Court The last two characters of the first group shall distinguish between geographical districts set forth in IC 33-25-1-2 from which the case is being appealed or being assigned in the Court of Appeals, and additional cases and other matters handled by the Supreme Court and the Tax Court, employing the following codes:

00 Administrative/Other matters handled by the Supreme Court, including, but not limited to, Attorney Disciplinary matters, Judicial Disciplinary matters, Special Judge assignments, Senior Judge assignments and Rule amendments,

01 First District: Bartholomew, Boone, Brown, Clark, Clay, Crawford, Daviess. Dearborn, Decatur, Dubois, Fayette, Floyd, Fountain. Franklin, Gibson. Greene, Hancock, Harrison, Hendricks, Henry, Jackson, Jefferson, Jennings. Johnson, Knox, Lawrence, Martin. Monroe, Montgomery, Morgan, Ohio, Orange, Owen, Parke, Perry, Pike, Posey, Putnam. Randolph, Ripley, Rush, Scott, Shelby, Spencer, Sullivan, Switzerland, Union, Vanderburgh. Vermillion, Vigo. Warrick, Washington, and Wayne. 02 Second District: Adams, Blackford, Carroll, Cass, Clinton, Delaware, Grant, Hamilton, Howard, Huntington, Jay, Madison, Marion, Miami, Tippecanoe, Tipton, Wabash, Wells, and White,

03 Third District: Allen, Benton, DeKalb, Elkhart, Fulton, Jasper, Kosciusko, LaGrange, Lake, LaPorte, Marshall, Newton, Noble, Porter. Pulaski, St. Joseph, Starke, Steuben, Warren, and Whitley,

04 The entire state constitutes the Fourth District. 05 The entire state constitutes the Fifth District. 10 Cases appealed to the Tax Court. (2) Year/Month of Filing. The second group of four characters shall represent the year and month of filing. As shown above, the first and second characters of this group denote the last two digits of the calendar year and the third and fourth characters reflect the month of filing. (3) Case Type. The third group of two characters shall designate the type of proceeding.

i. The following codes shall be used for matters originating in the Supreme Court:

BL Board of Law Examiners

CQ Certified Questions

DI Attorney Discipline

JD Judicial Discipline

MS Miscellaneous Matters

OR Original Actions

SJ Special Judges

ii. In appeals, the same case type code used in the lower court, as specified in Administrative Rule 8(B)(3), shall be used except as indicated below:

EX Appeals in certain administrative proceedings

TA Appeals from the Tax Court

DP Direct capital appeals

PD Post-conviction capital appeals

LW Direct Life without Parole (LWOP) appeals

CR Direct appeals (non-capital, non-LWOP)

PC Post-conviction appeals (non-capital)

SD Requests to file successive capital post-conviction petitions

SP Requests to file successive post-conviction petitions (non-capital)

JV Juvenile delinquency appeals with a trial court designation of "JD".

(4) Filing Sequence. The fourth group may consist of any number of characters assigned sequentially to a case when it is filed. It shall begin with "1" at the beginning of each year for each case classification and continue sequentially until the end of the year. The number of cases filed within a given classification will determine the number of digits in this group.

. . .

Rule 9. Access to Court Records

. . .

(E) Remote Access and Fees. Courts should endeavor to make at least the following information, when available in electronic form, remotely accessible to the public unless public access is restricted pursuant to sections (G) or (H):

(1) Litigant/party indexes to cases filed with the court;

(2) Listings of new case filings, including the names of the parties;

(3) The chronological case summary of cases;

(4) Calendars or dockets of court proceedings, including case numbers and captions, date and time of hearings, and location of hearings;

(5) Judgments, orders, or decrees.

Upon the request and at an amount approved by the majority of judges of courts of record in the county, the County Board of Commissioners may adopt an electronic system fee to be charged in conjunction with electronic access to court records. The fee must be approved by the Division of State Court Administration. The method of the fee's collection, deposit, distribution and accounting must be approved by the Indiana State Board of Accounts.

Commentary

In addition to any fees charged under this rule, Sections (C)(9) and (10) provide that courts may charge for the fair market value of bulk and compiled information This rule does not impose an affirmative obligation to preserve information or data or to transform information or data received into a format or medium that is not otherwise routinely maintained by the court. While this section encourages courts to make the designated information available to the public through remote access, this is not required, even if the information already exists in an electronic format. (F) Bulk Distribution and Compiled Information.

(1) Upon written request as provided in this s Section (F), bulk distribution or compiled information that is not excluded by Section (G) or (H) of this rule may be provided.

(2) Requests for bulk distribution or compiled information shall be made to the Executive Director of the Division of State Court Administration or other designee of the Indiana Supreme Court. The Executive Director or other designee may forward such request to a court exercising jurisdiction over the records, and in the instance of records from multiple courts, to the Indiana Supreme Court, for further action; . Requests will be acted upon or responded to within a reasonable period of time.

(3) With respect to requests for case record information not excluded from public access by Sections (G) or (H) of this rule, the request for bulk distribution or compiled information may be granted upon determination that the information sought is consistent with the purposes of this rule, that resources are available to prepare the information, and that fulfilling the request is an appropriate use of public resources. The grant of said request may be made contingent upon the requestor paying ~~reasonable costs of responding to the request~~ an amount which the court determines is the fair market value of the information.

(4) With respect to requests for bulk distribution or compiled information that include information excluded from public access pursuant to Sections (G) or (H) of this rule: (a) such requests must be verified and can only be made by individuals or entities having a substantial interest or a bona fide research activity for scholarly, journalistic, political, governmental, research, evaluation or statistical purposes, and wherein the identification of specific individuals is ancillary to the purpose of the inquiry. Each request under this sub-section (4) must:

(i) fully identify the requestor and describe the requestor's interest and purpose of the inquiry;

(ii) identify what information is sought;

(iii) describe the purpose for requesting the information and explain how the information will benefit the public interest or public education;

(iv) explain provisions for the secure protection of any information requested to which public access is restricted or prohibited;

(v) provide for individual notice to all persons affected by the release of information, unless, upon prior notice to the Indiana Attorney General and a reasonable opportunity to respond, such individual notice requirement is waived by the Supreme Court;

(vi) demonstrate by clear and convincing evidence that the public interest will be served by allowing access, that denying access will create a serious and imminent danger to the public interest, or that denying access will cause a substantial harm to a person or third parties.

(b) Upon receiving a request pursuant to this sub-section (F)(4), the Supreme Court may permit objections by persons affected by the release of information, unless individual notice required under (F)(4)(a)(v) is waived by the Supreme Court.

(c) The request may be granted only upon determination by the Supreme Court that the information sought is consistent with the purposes of this rule, that resources are available to prepare the information, and that fulfilling the request is an appropriate use of public resources, and further upon finding by clear and convincing evidence that the requestor satisfies the requirements of subsection (F)(4)(a), and that the purposes for which the information is sought substantially outweighs the privacy interests protected by this rule. An order granting a request under this subsection may specify particular conditions or requirements for use of the information, including without limitation:

(i) The confidential information will not be sold or otherwise distributed, directly or indirectly, to third parties;

(ii) The confidential information will not be used directly or indirectly to sell a product or service to an individual or the general public;

(iii) The confidential information will not be copied or duplicated other than for the stated scholarly, journalistic, political, governmental, research, evaluation, or statistical purpose; and

(iv) The requestor must pay reasonable costs of responding to the request, as determined by the court.

(d) When the request includes release of social security numbers, dates of birth, or addresses, the information provided may include only the last four digits of social security numbers, only the year of birth, and only the zip code of addresses. The restrictions on release of social security numbers, dates of birth, and addresses may be waived only upon a petition to the Executive Director of the Division of State Court Administration and a finding of exceptional circumstances by the Indiana Supreme Court.

Commentary

This section Section (F)(3) authorizes courts, in their discretion, to provide access to bulk distribution and complied compiled information that is accessible to the public . It does not require that such information be made available. Permitting bulk distribution or compiled information should not be authorized if providing the data will interfere with the normal operations of the court. In allowing bulk or compiled data requests, courts must limit bulk data to court records, even if those requesting this information are seeking other information which is governed by other agencies 'policies. Generating compiled data may require court resources and generating the compiled information may compete with the normal operations of the court for resources, which may be a reason for the court not to compile the information. However, it may be less demanding on court resources to instead provide bulk distribution of the requested information pursuant to section (D)(3), and let the requestor, rather than the court, compile the information. Courts may charge for the fair market value of bulk or compiled information provided under Section (F)(3).

Section (F)(4) allows only the Supreme Court to grant requests for bulk or compiled inform a tion that is excluded from public access and only when the request is made by research and/or governmental entities. The general intent of (F)(4)(d) is that the last four digits of social security numbers and years of birth, rather than entire birth dates and social security numbers, are sufficient for matching records and to ensure that someone is correctly identified in bulk or compiled records. Courts should provide more complete social security numbers or other identifying information only in extraordinary circumstances. (G) Court Records Excluded From Public Access.

(1) Case records. The following information in case records is excluded from public access and is confidential:

(a) Information that is excluded from public access pursuant to federal law;

(b) Information that is excluded from public access pursuant to Indiana statute or other court rule, including without limitation:

(i) All adoption records created after July 8, 1941, ~~pursuant to~~ as declared confidential by Ind. Code § 31-19-19-1 et. seq., except those specifically declared open ~~pursuant to~~ by Ind. Code § 31-19-13-2(2);

(ii) All records relating to Acquired Immune Deficiency Syndrome ~~pursuant to~~ as declared confidential by Ind. Code § 16-41-8-1 et. seq.;

(iii)All records relating to child abuse ~~not admitted into evidence as part of a public proceeding pursuant to~~ as declared confidential by Ind. Code § 31-33-18 et. seq.;

(iv)All records relating to drug tests ~~not admitted into evidence as part of a public proceeding pursuant to~~ as declared confidential by Ind. Code § 5-14-3-4(a)(9);

(v) Records of grand jury proceedings ~~pursuant to~~ as declared confidential by Ind. Code § 35-34-2-4;

(vi) Records of juvenile proceedings, ~~pursuant to~~ as declared confidential by Ind. Code § 31-39-1-2, except those specifically open under statute;

(vii) All paternity records created after July 1, 1941 ~~pursuant to~~ as declared confidential by Ind. Code §§ 31-14-11-15, 31-19-5-23, 31-39-1-1 and 31-39-1-2;

(viii) All pre-sentence reports ~~pursuant to~~ as declared confidential by Ind. Code § 35-38-1-13;

(ix) Written petitions to permit marriages without consent and orders directing the Clerk of Court to issue a marriage license to underage persons, ~~pursuant to~~ as declared confidential by Ind. Code § 31-11-1-6;

(x) Only those arrest warrants, search warrants, indictments and informations ordered confidential by the trial judge, prior to return of duly executed service; ~~pursuant to~~ as declared confidential by Ind. Code § 5-14-3-4(b)(1);

(xi) All medical, mental health, or tax records unless determined by law or regulation of any governmental custodian not to be confidential, released by the subject of such records, or declared by a court of competent jurisdiction to be essential to the resolution of litigation ~~pursuant to~~ as declared confidential by Ind. Code §§ 16-39-3-10, 6-4.1-5-10, 6-4.1-12-12, and 6-8.1-7-1;

(xii) Personal information relating to jurors or prospective jurors, other than for the use of the parties and counsel, pursuant to Jury Rule 10;

(xiii) Information relating to protection from abuse orders, no-contact orders and workplace violence restraining orders ~~not admitted into evidence as a part of a public proceeding~~ as declared confidential by Ind. Code § 5-2-9-6 et. seq.;

(xiv) Mediation proceedings pursuant to Alternative Dispute Resolution Rule 2.11, Mini-Trial proceedings pursuant to Alternative Dispute Resolution Rule 4.4(C), and Summary Jury Trials pursuant to Alternative Dispute Resolution Rule 5.6;

(xv) Information in probation files pursuant to the Probation Standards promulgated by the Judicial Conference of Indiana pursuant to Indiana Code § 11-13-1-8(b);

(xvi) Information deemed confidential pursuant to the Rules for Court Administered Alcohol and Drug Programs promulgated by the Judicial Conference of Indiana pursuant to Ind. Code § 12-23-14-13;

(xvii) Information deemed confidential pursuant to the Drug Court Rules promulgated by the Judicial Conference of Indiana pursuant to Ind. Code § 12-23-14.5-9.

(xviii) All records of the Department of Workforce Development as declared confidential by Ind. Code § 22-4-19-6.

(c) Information excluded from public access by specific court order;

(d) Complete Social Security Numbers of living persons;

(e) With the exception of names, information such as addresses, phone numbers, dates of birth which explicitly identifies:

(i) natural persons who are witnesses or victims (not including defendants) in criminal, domestic violence, stalking, sexual assault, juvenile, or civil protection order proceedings, provided that juveniles who are victims of sex crimes shall be identified by initials only;

(ii) places of residence of judicial officers, clerks and other employees of courts and clerks of court;

unless the person or persons about whom the information pertains waives confidentiality;

(f) Complete account numbers of specific assets,, loans, bank accounts, credit cards, and personal identification numbers (PINs) ~~not admitted into evidence as part of a public proceeding~~;

(g) All orders of expungement entered in criminal or juvenile proceedings;

(h) All personal notes and e-mail, and deliberative material, of judges, jurors, court staff and judicial agencies, and information recorded in personal data assistants (PDA's) or organizers and personal calendars.

(1.1) Court Proceedings Closed to the Public. During court proceedings that are closed to the public by statute or court order, when information in case records that is excluded from public access pursuant to this rule is admitted into evidence, the information shall remain excluded from public access.

(1.2) Court Proceedings Open to the Public. During court proceedings that are open to the public, when information in case records that is excluded from public access pursuant to this rule is admitted into evidence, the information shall remain excluded from public access only if a party or a person affected by the release of the information, prior to or contemporaneously with its introduction into evidence, affirmatively requests that the information remain excluded from public access.

(1.3) Access to Excluded Information. Access to information excluded from public access under subsections 1.1 and 1.2 may be granted after a hearing pursuant to Administrative Rule 9(1).

(2) Administrative records:. The following information in administrative records is excluded from public access and is confidential:

(a) All information excluded in sub-sections (a) through (h) of section (G)(1);

(b) Information that is excluded from public access to the extent provided by Indiana statute or other court rule, including without limitation:

. . .

(xi) proceedings and papers in attorney disciplinary matters that relate to matters that have not resulted in the filing of a verified complaint, or investigative reports and other work product of the Executive Secretary, employees or agents of the Disciplinary Commission, statements of circumstances conditionally agreeing to discipline, and affidavits of resignation or consenting to discipline pursuant to Admission and Discipline Rule 23;

. . .

(4) Appellate Proceedings. In appellate proceedings pending as of or commencing after January 1, 2009, parties, counsel, the courts on appeal, and the Clerk of the Supreme Court, Court of Appeals, and Tax Court ("Clerk") shall have the following obligations.:

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Rule 16. Electronic Filing and Electronic Service Pilot Projects

(A) Definitions. The following definitions shall apply to this rule: (1) E-Filing System. An eE-filing system is a system approved by the Indiana Supreme Court for filing and service of pleadings, motions and other papers ("~~Documents~~ documents") or information via an electronic means such as the Internet, a court-authorized remote service provider, or through other remote means to and from the trial court's case management system.

(2) Electronic Filing. Electronic filing ("E-filing") is a method of filing court documents or information with the Clerk of the Court by electronic transmission utilizing the E-filing system.

(3) Electronic Service. Electronic service ("E-service") is a method of serving ~~Documents~~ documents or information by electronic transmission on any User in a case via the E-filing system.

(4) User Agreement. A user agreement is an agreement that establishes obligations and responsibilities of the User and the Court and provides guidelines for proper use of the E-filing system.

(5) User. A u User is an individual that has received authorization from the trial court administering an E-filing system to use that E-filing system by remote access.

. . .

(E) ~~Signing of Documents~~ Signature . The filing of ~~Documents filed~~ documents and information through the E-filing system by use of a valid username and password are is presumed to have been ~~signed and~~ authorized by the User to whom that username and password have been issued and documents filed through the E-filing system are presumed to have been signed by the same User.

(F) Commencement of an Action. An action may be commenced by E-filing only in a court which has adopted a pilot project plan approved by the Division of State Court Administration pursuant to this rule.

(G) Time of Filing. Documents or information may be filed through an E-filing system at any time that the Clerk's office is open to receive the filing or at such other times as may be designated by the Clerk and posted publicly. Documents or information filed through the E-filing system are deemed filed when received by the Clerk's office, except that~~Documents~~ documents or information received at times that the Clerk's office is closed shall be deemed filed the next regular time when the Clerk's office is open for filing. The time stamp issued by the E-filing system shall be presumed to be the time the D document is received by the Clerk.

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Appendix. The Necessary Elements of a Proposed Plan to Implement Electronic Filing or An Electronic Service Pilot Project Pursuant to Administrative Rule 16 Pursuant to Administrative Rule 16(B), the following provisions relate to the necessary elements required in any written request for approval of an electronic filing or an electronic service pilot project. The Division of State Court Administration may modify these provisions at any time.

I. Definitions

(a) "Filing User" refers to attorneys who have an electronic case filing log-in and password to file documents electronically, or the agent an attorney has expressly designated to make a filing on his or her behalf.

(b) "Electronic Case Filing System" (ECF) refers to the court's system that receives in electronic form documents or information ~~filed in electronic form~~ via the Internet, a court-authorized remote service provider, or through other remote means to and from the trial court's case management system.

(c) "Notice of Electronic Filing" refers to the notice that is automatically generated by the Electronic Case Filing System at the time a document is filed with the system, setting forth the time of filing, the name of the party and attorney filing the document, the type of document, the text of the docket entry, and the name of the attorney(s) receiving the notice.

. . .

II. Elements

A proposed plan submitted pursuant to Administrative Rule 16(B) must contain the following elements.:

A. System Compatibility

A detailed description of how the proposed system is compatible with the clerk's office and the current technology in use in the court and court offices.

B. User Hardware and Software Requirements

The specific hardware and software users will need to electronically filed documents and information and receive notice of case activity.

C. System Users

An identification of other court users, including the public, and a description of how the proposed system would be compatible with their use. Any proposed system must allow members of the public to view electronic and hard copy documents, unless they are deemed confidential by statute, court rule, or court order.

. . .

III. Content/Substantive Requirements

In addition to the elements outlined above, any proposed Plan shall include the following content:

A. Eligible Users

Attorneys admitted to the Indiana bar and in good standing are eligible to register as Filing Users of a court's Electronic Case Filing system. Registration via the User Agreement should require the Filing User's name, address, telephone number, Internet e-mail address, and a declaration that the attorney is admitted to the bar. Filing Users must notify the clerk of the court in writing within 30 days of any change of address, electronic or otherwise.

B. Registration Obligations

Registration as a Filing User constitutes consent to electronic service of all documents in accordance with the Indiana Rules of Court. Filing Users must agree to protect the security of their passwords and immediately notify the clerk if they learn that their password has been compromised.

C. Public Accessibility

Members of the public may review at the clerk's office filings that have not been sealed by the court. A person who has system access may retrieve docket sheets and documents. Only a Filing User may file documents and information electronically.

D. General Format Requirements

Formatting requirements for all documents filed electronically must comply with the format and procedures set forth in the Indiana Rules of Court and the local rules for the county in which the electronic filing occurs. (If the court intends to create local rules specifically applicable to electronic filing, a copy of such proposed local rules must be included with the proposed plan.)).

. . .

H. Certificate of Service

A certificate of service, if required by the Rules of Trial Procedure, must be included with all documents and information filed electronically. The certificate shall indicate that service was accomplished pursuant to the court's electronic filing procedures. The party effectuates service on all registered parties by filing electronically. Those parties or attorneys who have been permitted by the court to be exempt from the electronic filing requirement must be provided the documents in paper form in accordance with the Indiana Rules of Court.

I. Electronic Copies and Electronic File-Stamps

When a document or information is filed electronically, the official record is the electronic recording of the document as stored by the court. The system will generate a Notice of Electronic Filing, which will be transmitted via e-mail to the filer and all attorneys of record in the matter. The Notice of Electronic Filing serves as the court's date-stamp and proof of filing.

J. Password Serves as Signature

No Filing User or other person may knowingly permit or cause to permit a Filing User's password to be used by anyone other than an authorized agent of the Filing User. A Filing User has responsibility for all transactions under his or her password and is obligated to notify the clerk if his or her password is compromised. The log-in and password required to submit documents and information to the Electronic Case Filing System shall serve, in part, as the Filing User's signature on all electronic documents filed with the Court, and as the Filing User's authorization for filing information with the Court. They also serve as a signature for purposes of the Indiana Rules of Court, the local rules of the court, and any other purpose for which a signature is required in connection with proceedings before a court.

K. Signatures Other Than Filing User

Documents requiring signatures for two or more parties represented by different counsel must be electronically filed either by: (a) representing the consent of the other attorney(s) on the signature line where the other attorney's handwritten signature would otherwise appear; (b) identifying in the signature block attorneys whose signatures are required and by the submission of a notice of endorsement by the other attorneys no later than three business days after filing; (c) submitting a scanned document containing all necessary signatures; or (d) in any other manner approved by the court.

L. Filing Consequences

Electronic transmission of a document or information to the Electronic Case Filing System consistent with these rules, together with the transmission of a Notice of Electronic Filing from the court, constitutes filing of the document or information for all purposes of the Indiana Rules of Court and the local rules of the court, and constitutes entry of the ~~document~~ filing on the court's docket. When a document or information has been filed electronically, the official record is the electronic recording of the document or information as stored by the court, and the filing party is bound by the document or information as filed.

Filing a document or information electronically does not alter the filing deadline for that document or information. Filing must be completed before midnight local time of the court in order to be considered timely filed that day.

When a document or information is filed electronically, the court's system must generate a Notice of Electronic Filing, which will be transmitted via e-mail to the filer and all attorneys of record in the matter who are Filing Users. The party submitting the filing the ~~document~~ should retain a paper or electronic copy of the Notice of Electronic Filing, which serves as the court's date-stamp and proof of filing. Transmission of the Notice of Electronic Filing to an attorney's registered e-mail address constitutes service upon the attorney. Only the Notice of Electronic Filing, generated and transmitted by the court's system, is sufficient to constitute electronic service of an electronically filed document. Those parties or attorneys who have been permitted by the court to be exempt from the electronic filing requirement must be provided notice of the filing in paper form in accordance with the Indiana Rules of Court.

M. Sealed Documents

The provider of the electronic filing system must certify a level of security for sealed documents that demonstrates the ability to comply with the Indiana Rules of Court, especially Administrative Rule 9. The party filing a sealed document also must electronically file a Notice of Manual Filing. No document will be maintained under seal in the absence of an authorizing statute, court rule, or court order.

N. Court Orders

Immediately upon the entry of an order or judgment in an action assigned to the Electronic Filing System, the clerk will transmit to Filing Users in the case, in electronic form, a Notice of Electronic Filing. Electronic transmission of the Notice of Electronic Filing constitutes the notice required by Indiana Rule of Trial Procedure 77(d) (D). If a party is not represented by at least one attorney who is a Filing User, the court must give notice in paper form in accordance with the Indiana Rules of Court.

O. Technical Difficulties

Parties are encouraged to file documents and information electronically during normal business hours, in case a problem is encountered. In the event a technical failure occurs, and despite the best efforts of the filing party a document or information cannot be filed electronically, the party should print (if possible) a copy of the error message received. In addition, as soon as practically possible, the party should file a Declaration that Party was Unable to File in a Timely Manner Due to Technical Difficulties.

If a party is unable to file electronically and, as a result, may miss a filing deadline, the party must contact the designated Electronic Filing System Administrator. If a party misses a filing deadline due to an inability to file electronically, the party may submit the untimely-filed document, accompanied by a declaration stating the reason(s) for missing the deadline. The document and declaration must be filed no later than 12:00 noon of the first day on which the court is open for business following the original filing deadline.

P. Retention of Documents in Cases Filed Electronically

Filing Users must retain signed copies of electronically filed documents until two (2) years after all time periods for appeals expire. Documents that are electronically filed and require original signatures other than that of the Filing User must be maintained in paper form. On request of the court, the Filing User must provide original documents for review.

Originals of documents filed electronically which require scanning ( e.g. documents that contain signatures, such as affidavits) must be retained by the filing party and made available, upon request, to the Court and other parties for a period of two years following the expiration of all time periods for appeals.

Q. Entry of Court Orders

All signed orders must be filed electronically by the court or court personnel. All orders, decrees, judgments, and proceedings of the court filed electronically will constitute entry on the court's docket. A hardcopy version of all judgments shall be entered in the Court's Record of Judgments and Orders, pursuant to Trial Rule 77(D).

. . .

These amendments shall take effect January 1, 2010.

Thomson Reuters is directed to publish this Order in the advance sheets of this Court.

The Clerks of the Circuit Courts are directed to bring this Order to the attention of all judges within their respective counties and to post this Order for examination by the Bar and general public.

DONE at Indianapolis, Indiana, this 15 ^th day of September, 2009.

All Justices concur.