Constantine D. Mills, Jr. v. Brandy Fisher (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be Sep 21 2015, 9:32 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Constantine D. Mills, Jr. Gregory F. Zoeller
Michigan City, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Constantine D. Mills, Jr., September 21, 2015
Appellant, Court of Appeals Case No.
90A05-1504-JP-176
v. Appeal from the Wells Circuit
Court
Brandy Fisher, The Honorable Kenton W.
Appellee. Kiracofe, Judge
Trial Court Cause No.
90C01-0604-JP-18
Brown, Judge.
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[1] Constantine D. Mills, Jr., pro se, appeals the trial court’s order modifying his
support obligation to a total of $42 per week.1 Mills raises one issue which we
revise and restate as whether the court abused its discretion in entering the
support order. We reverse and remand.
Facts and Procedural History
[2] On September 15, 2014, Mills filed a Verified Petition to Lower Child Support
Obligation. On March 26, 2015, the court held a hearing on the petition at
which Mills appeared pro se by telephone.
[3] Mills testified that he was incarcerated, serving a fifty-year sentence for child
molesting, was unable to make his support payments, that he was currently
attending a two-year college program, and that he received the maximum $22
per month for that program. He stated he could not work and be in the
program at the same time, and that he did not have any retirement account,
inheritance, or any other source of income. He stated that he was responsible
for his hygiene and that “alone is almost half of [his] pay through the month.”
Id. at 9. Mills said that he believed he was initially ordered to pay $38 per week
plus $7 per week towards his arrearage.
[4] L.M.’s mother testified that L.M. has special needs, and when asked if she
could estimate her expenses on a monthly basis not covered by insurance, she
1
The State represents the interests of the State as L.M.’s mother is a Title IV-D recipient.
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said that she paid approximately $500 per year. She also testified she earned
approximately $500 per week. Mills asked L.M.’s mother if she still received
SSI benefits to help with L.M.’s financial needs, and she replied that she
received $773 monthly.
[5] In closing, Mills testified that “being incarcerated limits the amounts of money
[he] can come up with,” that he “would ask the Court that they would take into
consideration the amount [he was] getting paid and come up with something
reasonable within the parameters of law that [he] can actually afford,” and that
he was “asking not to be put in a position to where [he is] getting even further
behind.” Id. at 14-15. Counsel for L.M.’s mother stated “all we’re asking is
there is still be something that is applied” and that “[w]e realize it might be low
but we don’t think zero would be an appropriate support amount in this case.”
Id. at 16.
[6] The trial court stated that it was going to order support of $12 per week. The
court entered an order of Income Withholding for Support, ordering that Mills
pay $12 per week in current child support plus $30 per week toward his
arrearage, for a total support obligation of $42 per week.
Discussion
[7] The issue is whether the trial court abused its discretion in entering the support
order. In reviewing a trial court’s decision regarding the modification of child
support, we reverse only for an abuse of discretion. Hooker v. Hooker, 15 N.E.3d
1103, 1105 (Ind. Ct. App. 2014). An abuse of discretion occurs when the
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decision is clearly against the logic and effect of the facts and circumstances
before the court, including any reasonable inferences therefrom. Id. Whether
the standard of review is phrased as “abuse of discretion” or “clear error,” the
importance of first-person observation and preventing disruption to the family
setting justifies deference to the trial court. Id.
[8] Mills argues that he expects to receive $22 per month and that the support
amount ordered by the court is unattainable. He requests that the court stop his
current support order so he does not fall further behind.
[9] The State agrees that the court’s support obligation must be based on Mills’s
actual earnings, and acknowledges that, “[u]nder these circumstances, he could
not possibly pay the $12 per week current support or $30 per week towards his
arrearage that the trial court ordered.” Appellee’s Brief at 5. The State requests
that this court remand to the trial court to determine the amount of current
support and arrearage payments that are consistent with Mills’s current income.
[10] While Mills is incarcerated, he has a duty to provide support for his dependent
children. See Hooker, 15 N.E.3d at 1105. In evaluating Mills’s circumstances,
the trial court remained obligated under the Child Support Guidelines to
consider all sources of income or other property when calculating support
payments upon modification. Id. (citing Clark v. Clark, 902 N.E.2d 813, 817
(Ind. 2009)). In Clark, the Indiana Supreme Court held that the support
obligation of an incarcerated person should be set based on the parent’s actual
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earnings while incarcerated and other assets available to the incarcerated
person. Clark, 902 N.E.2d at 817.
[11] Ind. Child Support Guideline 2 provides in part that “[w]hen a parent has
extremely low income the amount of child support recommended by use of the
Guidelines should be carefully scrutinized,” that 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,” and that “[t]he court
may consider $12.00 as a minimum child support order; however, there are
situations where a $0.00 support order is appropriate.” The Commentary to
Ind. Child Support Guideline 2 provides in part that “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.” The commentary further
provides, for example, that the fact a parent is incarcerated is a significant factor
to consider in setting a child support order.
[12] Although the evidence at the modification hearing established that Mills
received $22 per month for his participation in a college program, the trial court
nevertheless set his total child support obligation at $42 per week. Leaving this
support order undisturbed would likely burden Mills with a high arrearage upon
his release from prison. Additionally, the ordered amount does not reflect the
present earning capacity of Mills as contemplated by the Ind. Child Support
Guidelines.
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[13] Accordingly, we reverse the trial court’s order setting Mills’s child support
obligation at $42 per week and remand with instructions for the court to
determine a current support amount and amount to be paid toward his
arrearage based upon Mills’s actual earnings while incarcerated. See Clark, 902
N.E.2d at 817-818 (observing that the trial court set Clark’s child support
obligation at $53 per week while he received less than $21 per month at his
prison job assignment, that this support order left undisturbed would likely
burden Clark with a high arrearage upon his release from prison, and that
denial of his petition would thwart the goal of having child support obligations
reflect the present earning capacity of parents, and reversing the support order
and remanding with instructions that the trial court consider Clark’s other
income sources).
Conclusion
[14] For the foregoing reasons, we reverse the trial court’s order and remand for a
revised modification order consistent with this opinion.
[15] Reversed and remanded.
Altice, J., concurs.
Riley, J., concurs in part and dissents in part with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Constantine D. Mills, Jr., Court of Appeals Case No.
90A05-1504-JP-176
Appellant,
v.
Brandy Fisher,
Appellee.
Riley, Judge concurring in part and dissenting in part.
[16] While I concur with the majority’s decision to reverse the trial court’s
imposition of Mills’ support order and arrearage, I respectfully dissent from the
decision to remand this case to the trial court to determine “a current support
order and amount to be paid toward his arrearage based upon Mills’ actual
earnings while incarcerated.” (Slip op. p. 6).
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[17] Initially, I would like to commend the State and mother’s counsel for
recognizing that “even though Mills has an abiding duty to provide support” for
his dependent child, his support obligation should be “based on the obligated
parent’s actual earnings while incarcerated.” (See Clark v. Clark, 902 N.E.2d
813, 817 (Ind. 2009); Hooker v. Hooker, 15 N.E.3d 1103, 1105 (Ind. Ct. App.
2014)). Here, all parties are in agreement that Mills’ current monthly income
amounts to $22, with Mills testifying that his expenses for hygiene are “almost
half of [his] pay through the month.” (Tr. p. 9). “[U]nsustainable support
orders result in greater failure of non-custodial parents to pay their support
obligations, making it ‘statistically more likely that the child will be deprived of
adequate support over the long term.’” Clark, 902 N.E.2d at 817 (citing Lambert
v. Lambert, 861 N.E.2d 1176, 1180-81 (Ind. 2007)). Accordingly, I would retain
Mills’ current monthly child support order of $12, without imposing any further
payments toward his arrearage until further order of the court.
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