Best Practices: Automated
Review for Modification
Actions and New Legal
Approaches
Amanda Chew, Manatee Clerk of Court (Florida)
Patterson Poulson Florida Department of Revenue
Laura Bernacki Stafford, Porter County Prosecuting
Attorney’s Office (Indiana)
ERICSA 50th Annual Training Conference & Exposition ▪ May 19 – 23 ▪ Hilton Orlando Lake Buena Vista, Florida
Workshop Goals
• Learn about how Florida used automation to
improve review for modification processing
• Review Florida’s companion expedited
modification law
• Review approaches to managing modification
requests of inmates
• Discuss existence of conflict of interest in
downward modification actions
Automated Review for
Modification
• Florida implemented a new child support
system in 2012
• Redesigned approach for Review for
Modification
• Used automation to great advantage
Previous Design
• User manually determined eligibility
• Requests for financial information sent to
requester and non-requester at same time
• If requester did not respond, but nonrequester did, non-requester provided
opportunity to continue review
• After initial review was complete, parties to
contest and request a second review
Previous Design
• If change was warranted, the modification
process, judicial or administrative, rerequested financial information and then
guidelines were recalculated
• Time frames associated with the review
process were automated and forms were
generated from the system
Use of Bar-coded Documents
• Request forms generated from system,
barcoded to identify case and requester
information
• Upon return, system automatically creates
Review for Modification activity identifying
which party requested the review
Use of Bar-coded Documents
• Subsequent financial information request
documents are barcoded to the Review
activity
• When barcoded document received, system
automatically sets appropriate activity statues
based on what document was returned.
Review Eligibility Determination
• System performs automated eligibility checks;
tasks worker only if necessary data not
available
• If review request determine to not be eligible,
system notifies the requester and terminates
the review activity.
Initiating Interstate Review
Requests and CEJ
• System determines which state has continuing
exclusive jurisdiction (CEJ) over the parties
• If Florida or Florida can assume CEJ system
continues review activity
• If another state has CEJ or should assume CEJ,
system automatically initiates follow-on
Interstate activity
Requesting Financial Information
• System generates financial document request
to requesting party
• Tracks response timeframe
• No response, terminates review and notifies
requester
• If documents returned within required
timeframe, system generates financial
document request to nonrequesting party
Requesting Financial Information
• System determines which financial documents
to sent to the parties (administrative vs
judicial orders)
• System tasks user to calculate new guideline
amount based on data provided by parties
and obtained through independent means
Change Warranted?
• System compares new guideline amount to
existing obligation information on system
• System identifies if change to support order is
warranted
Determination of Substantial
Change
• Florida has statutory criteria that determine if
modification of the order is warranted, based
on the amount of time since the order was
last modified or a review was completed
Determination of Substantial
Change
• Within three years – change must equal 15%
of existing obligation or $50, whichever is
greater
• More than three years – change must be at
least $25 and at least 10% of existing
obligation
Results and Next Actions
• System sends results notices to parties
• System automatically initiates required followon activities to modify administrative or
judicial orders
Administrative Modification
• Proposed administrative modification order
with new amounts sent to parties as notice of
the completion of the review process
Streamlined Judicial Modification
Process
• Department sought authority for a new
judicial modification process that
complements the automated review process
• Expedited Modification Process Based upon
the IV-D Department Review Process
Florida’s Streamlined Modification
Process
Florida Statute 409.2564 discusses how to
pursue actions for support in Florida. It also
details the new expedited modification
process where DOR can enter a modification
order without a court hearing after
determining a modification is warranted and
noticing both parties.
Qualifications
1. Request by party or DOR review
2. Compile financial information
3. Run Guidelines to determine if a modification
is warranted
4. If warranted, prepare all required documents
5. Serve/Mail documents
6. 30 day objection period or order is signed
without a hearing
Modifications Included
1. DOR three year review modifications
2. Three year review requested by parties
3. Modifications for change in circumstance
Modifications Not Included
1. Add-a-baby modifications
2. Modifications when children leave the
household
3. Modifications where one child has
emancipated
4. Change of payees
Documentation Required
1. Child Support Guidelines
2. Financial Affidavit or Written Declaration
from DOR
3. Proposed Modified Order
4. Notice that informs parties of the
requirement to file an objection to request a
hearing.
Pros/Cons
• Pros: There have been minimal objections to
the proposed orders and only a handful of
parties have hired counsel to object to the
proposed orders. Judges are receptive to this
new process.
• Cons: Paperwork intensive prior to filing.
Questions/Comments
Modification and Incarceration
• Three General Approaches
– No justification (most common)
• Incarceration is insufficient to abate support
– One Factor Rule
• Court should consider the fact of incarceration with
other factors to determine if support should be
modified
– Complete Justification (our focus)
• Incarceration IS SUFFICIENT to abate support
Indiana Law
• Lambert v Lambert, 861 NE2d 1176 (2007 Ind)
– Statutory Interpretation
• Modification should be based upon actual, present
ability to pay
• Incarceration is a sufficient non-voluntary change in
income
• Choice to commit crime is not done to avoid having
income or pay child support
Indiana Law
• Lambert v Lambert, 861 NE2d 1176 (2007 Ind)
– Sociological Reasoning
• Child support order while incarcerated is unreasonable
and only leads to failure to pay
• Child support and high arrears leads to barriers to reentry and more avoidance of paying
• Statistically more likely to deprive the child of support
in the long term if arrears are high
Indiana Law
• Lambert v Lambert, 861 NE2d 1176 (2007 Ind)
– Other provisions
• Courts can look at actual income*
– Such as rental properties, savings, trust accounts
– *we don’t generally count prison income but do add a
frequency on arrears and send out IWO (some accountability,
IDOC has requested it)
• Prospectively order child support
– “child support shall return to $xx/week commencing the
fourth Friday after release”
Indiana Law
• Becker v. Becker, 902 NE2d 818 (2009 Ind)
– Modification is retroactive only to date of filing of
petition (standard Ind rule), not date of
incarceration
– Those incarcerated during the Lambert decisiondate Lambert (2/22/07) was decided or after, not
before even if modification petition was filed
Indiana Law
• Douglas v State and IFSSA, 954 NE2d 1090
(2011 Ind App)
– Incarcerated on Class C felony of non-support
– Argument- choice to commit crime of nonpayment is voluntarily avoiding paying child
support
– Holding- still unable to pay if incarcerated and all
social factors still apply
– Court declined to create an exception**
Other States
• Approximately 7-8 states total have a
complete justification approach
• Indiana, California, Maryland, Michigan,
Minnesota, Oregon, Washington
• General Holding- person is not voluntarily
impoverished, therefore cannot be imputed
income for modification
Other States
– **most of these States DO have an exception for
criminal non-support (no auto mod)
– Interesting statements and arguments
• California- cannot impute income to someone who has
no earning capacity- no different than when originally
establishing an order
• Maryland- incarceration is a material change in
circumstances- not voluntarily impoverished unless
committed crime with intent of going to prison!!!
Other States
• Washington- income cannot be imputed
because prisoner is not employable
• Minnesota- State argued that prisoner was
provided room and board by the prison and
therefore that should be included as imputed
income- (Court of Appeals didn’t buy it)
• Oregon- Court can consider assets of the
individual
Other States
• Florida’s Approach to Laws regarding
Incarcerated Modifications (DOR v.
Jackson/DOR v. Tillery)
Other Modification Considerations
• Is seeking a downward modification in a Title
IV-D case considered a conflict of interest?