Joshua Abbott v. Trinady Abott (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 29 2017, 8:38 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Murielle S. Bright Joseph A. Colussi
North Vernon, Indiana Colussi Law Office
Madison, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Abbott, June 29, 2017
Appellant-Respondent, Court of Appeals Case No.
39A01-1610-DR-2508
v. Appeal from the Jefferson Circuit
Court
Trinady Abbott, The Honorable Darrell M. Auxier,
Appellee-Petitioner. Judge
Trial Court Cause No.
39C01-1101-DR-20
Mathias, Judge.
[1] Joshua Abbott (“Father”) appeals the order of the Jefferson Circuit Court
denying his motion to retroactively abate his child support obligation.
[2] We affirm.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-DR-2508 | June 29, 2017 Page 1 of 10
Facts and Procedural History
[3] Father married Trinaday Abbott (“Mother”) in September 2006, and the parties
had one child. The marriage was dissolved in April 2011. Pursuant to the
mediated settlement agreement which was incorporated into the dissolution
decree, Father was ordered to pay $90 per week in child support to Mother.
[4] On February 2, 2014, Father was arrested and subsequently charged with two
counts of Class B felony criminal confinement, two counts of Class C felony
intimidation, Class D felony domestic battery, Class D felony pointing a
firearm, Class D felony criminal confinement, and two counts of Class A
misdemeanor domestic battery. On February 26, 2014, Father pleaded guilty to
Class C felony criminal confinement, Class C felony intimidation, and Class A
misdemeanor domestic battery. On March 14, 2014, Father was sentenced to
concurrent terms of eight years on both Class C felony convictions and a
concurrent term of one year on the Class A misdemeanor conviction.
[5] Father filed a petition to modify his sentence in June 2014, which the trial court
denied. Father filed a second petition to modify his sentence on March 17,
2016. This time, the court granted the petition, and Father was ordered to serve
the 850 days remaining on his sentence in community corrections, beginning
August 6, 2016. Thus, as a result of his arrest and convictions, Father was
incarcerated from February 2, 2014 until August 6, 2016.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-DR-2508 | June 29, 2017 Page 2 of 10
[6] According to Father, his counsel in the criminal case told him that “his child
support obligation in the case at bar would abate while he was incarcerated.”1
Appellant’s Br. at 4. However, this advice was incorrect, and Father did not file
any motion seeking to reduce or abate his child support obligation while he was
incarcerated. As a result, when Father was released from incarceration, he was
in arrears on his child support in the amount of approximately $11,000.
[7] On August 22, 2016, Father filed a motion to retroactively abate his child
support obligation from February 2, 2014 to August 6, 2016, the dates during
which he was incarcerated. The trial court denied the motion the following day,
in an order that provided in relevant part, “A trial court only has the discretion
to make a modification of child support due to incarceration effective as of a
date no earlier than the date of the petition to modify.” Appellant’s App. p. 14
(citing Becker v. Becker, 902 N.E.2d 818 (Ind. 2009)).
[8] On September 8, 2016, Father filed a petition to modify his child support.
Howver, he did not give up on his effort to have his child support retroactively
modified, and on September 23, 2016, he filed a motion to correct error
claiming that the trial court had erred in denying his motion to retroactively
abate his child support obligation. Father claimed in his motion to correct error
that the trial court:
1
As noted by Mother, Father was represented in the criminal case by the same counsel that represents him
on appeal.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-DR-2508 | June 29, 2017 Page 3 of 10
does have the discretion to retroactively modify [Father]’s child
support when the opinions of Becker v. Becker, 902 N.E.2d 818(Ind. 2009) and Douglas v. Douglas, 954 N.E.2d 1090 (Ind. Ct.
App. 2011) (transfer[] denied) are considered together and not
independently of one another and also considers the Indiana
Court of Appeal’s [sic] clear public policy rational[e] in Douglas.
Appellant’s App. p. 19 (italics added). The trial court issued an order denying
Father’s motion to correct error the same day that it was filed, noting that “the
Court is not aware of, nor does [Father] cite the Court to, any case which
overrides or modifies the holding in Becker.” Id. at 26. The trial court also
indicated its belief that our supreme court had granted transfer in Douglas.
[9] On October 3, 2016, Father filed a motion to reconsider, correctly noting that
although our supreme court had initially granted transfer in Douglas, it later
vacated its transfer order and denied transfer, thereby reinstating this court’s
opinion in that case. See Douglas v. State, 969 N.E.2d 1006 (Ind. 2012) (vacating
transfer order and denying transfer).2 The trial court denied the motion to
reconsider the following day, concluding that this court’s opinion in Douglas did
not alter the rule that “a support order may not be retroactively modified prior
to the date of the filing of a petition to modify.” Appellant’s App. p. 31.
2
This confusion could stem from the fact that, in Westlaw, our opinion in Douglas is marked with a “red
flag,” indicating that the case is no longer valid precedent, and also contains a note stating, “Transfer
Granted, Opinion Vacated, IN RAP 58(A).” As explained above, our supreme court initially granted transfer
in Douglas, but later vacated its transfer order and denied transfer. Accordingly, Douglas is still valid
precedent.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-DR-2508 | June 29, 2017 Page 4 of 10
[10] On October 31, 2016, Father filed a notice of appeal.3
Discussion and Decision
[11] Father argues that the trial court should have granted his motion to
retroactively abate his child support obligation to the date he was incarcerated,
i.e., February 2, 2014. The origin of Father’s argument can be traced to the
opinion of our supreme court in Lambert v. Lambert, 861 N.E.2d 1176 (Ind.
2007).
[12] In Lambert, our supreme court held that, when determining the initial order of
child support, an incarcerated parent’s pre-incarceration income should not be
imputed to the incarcerated parent. Id. at 1177. Although the Indiana Child
Support Guidelines require every parent to provide some support, the Lambert
court held that it was improper to set an incarcerated parent’s support
obligation based on pre-incarceration employment income that “plainly would
3
On December 28, 2016, Mother filed a motion to dismiss Father’s appeal, claiming that Father’s motion to
correct error was untimely and that his notice of appeal was therefore also untimely. The motions panel of
this court denied Mother’s motion to dismiss on January 20, 2017. Mother filed a motion to reconsider on
January 23, 2017, which our motions panel denied two days later.
In her appellee’s brief, Mother repeats her argument that Father’s notice of appeal was untimely and that his
appeal should therefore be dismissed. Father argues in his reply brief that the ruling of our motions panel on
this matter was final. However, it is well settled that a writing panel may reconsider a ruling by the motions
panel. Simon v. Simon, 957 N.E.2d 980, 987 (Ind. Ct. App. 2011). Although we are reluctant to overrule
orders decided by the motions panel, we have the inherent authority to reconsider any decision while an
appeal remains in fieri. Id.Nevertheless, we decline to reconsider the ruling of our motions panel in this case. The untimely filing of a
notice of appeal is not a jurisdictional defect. In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). Even
according to Mother, Father’s motion to correct error was at most one day late. Nor did Mother object to the
lateness of Father’s motion to correct error. Given our preference to decide issues on their merits, Kelly v.
Levandoski, 825 N.E.2d 850, 856 (Ind. Ct. App. 2005), we choose to address Father’s appellate argument on
the merits.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-DR-2508 | June 29, 2017 Page 5 of 10
not be there during incarceration.” Id. at 1176. Instead, trial courts should
“calculate support based on the actual income and assets available to the
parent” during incarceration. Id. at 1177.
[13] However, the Lambert court specifically rejected the idea that child support
should be completely suspended while a parent is incarcerated, concluding that
[a]dopting a system that considers incarceration an absolute
justification for the reduction or suspension of child support
appears inconsistent with the policy embedded in Indiana’s
statutes. . . . [W]e cannot imagine that the legislature intended for
incarcerated parents to be granted a full reprieve from their child
support obligations while their children are minors.
Id. at 1179.
[14] The Lambert court also held that an incarcerated parent should not be
considered “voluntarily” unemployed or underemployed under the Child
Support Guidelines. Id. at 1180. Although criminal activity reflects a “voluntary
choice,” it is “not quite the same” as voluntarily refusing to work because “[t]he
choice to commit a crime is so far removed from the decision to avoid child
support obligations that it is inappropriate to consider them as identical.” Id.
“[I]mposing impossibly high support payments on incarcerated parents acts like
a punitive measure, and does an injustice to the best interests of the child by
ignoring factors that can, and frequently do, severely damage the parent-child
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-DR-2508 | June 29, 2017 Page 6 of 10
relationship.”4 Id. However, the rule set forth in Lambert only “counsels against
imputing pre-incarceration wages, salaries, commissions, or other employment
income to the individual. A court may, obviously, still consider other sources of
income when calculating support payments.” Id. at 1182.
[15] Lambert dealt only with the initial setting of the incarcerated parent’s child
support obligation. In Clark v. Clark, 902 N.E.2d 813, 817 (Ind. 2009), our
supreme court relied on the reasoning of Lambert to hold that incarceration may
serve as a changed circumstance so substantial and continuing as to make the
terms of an existing support order unreasonable, thereby justifying modification
of the support order. As in Lambert, the Clark court held that “a support
obligation should be set based on the obligated parent’s actual earnings while
incarcerated (and other assets available to the incarcerated person).” Id.[16] On the same day that it decided Clark, our supreme court also issued its opinion
in Becker v. Becker, 902 N.E.2d 818 (Ind. 2009). In Becker, an incarcerated father
petitioned to have his child support obligation reduced on grounds that he was
incarcerated. The trial court granted the petition retroactive to the date of the
Lambert decision. The father appealed, contending that the trial court should
have retroactively reduced his child support obligation, not just to the date of
4
The Lambert court cited sociological evidence supporting the conclusion that the accumulation of large
support arrearages during periods of incarceration results in greater failure of noncustodial parents to comply
with their child support obligations, making it “statistically more likely that the child will be deprived of
adequate support over the long term.” Id. at 1181. The court further noted that unsustainable support orders
create “a barrier to successful re-entry into society because they have a tendency to disrupt family
reunification, parent-child contact, and the employment patterns of ex-prisoners.” Id.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-DR-2508 | June 29, 2017 Page 7 of 10
Lambert, but to the date of the divorce decree, which was entered while father
was incarcerated. On transfer to our supreme court,5 the court noted the well-
established rule that, although a trial court has discretion to make a
modification of child support relate back to the date the petition to modify was
filed, retroactive modification of child support payments may not generally
relate back to a date earlier than the filing of the petition to modify. Becker, 902
N.E.2d. at 820 (citing Donegan v. Donegan, 605 N.E.2d 132, 133 n.1 (Ind. 1992);
Quinn v. Threlkel, 858 N.E.2d 665, 674 (Ind. Ct. App. 2006)). The court further
noted the long-standing rule that “‘after support obligations have accrued, a
court may not retroactively reduce or eliminate such obligations.’” Id. (quoting
Whited v. Whited, 859 N.E.2d 657, 661 (Ind. 2007)). Thus, the modification of a
support obligation may only relate back to the date the petition to modify was
filed, and not an earlier date, subject to two exceptions, which were not
applicable in Becker or in the present case.6 Id. The Becker court ultimately
concluded that “[n]othing in Lambert or Clark suggests a contrary rule for
modifications due to incarceration,” and reaffirmed that “[a] trial court only has
the discretion to make a modification of child support due to incarceration
5
A panel of this court had held that the reduction of the father’s support obligation could not be retroactive
to any date before the date on which he filed his petition for relief. Becker v. Becker, 891 N.E.2d 1114, 1115
(Ind. Ct. App. 2008), trans. granted, opinion vacated.
6
These two exceptions are “(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 [such] that a permanent change of custody is exercised.” Id. at 820 n.4 (citing Whited, 859
N.E.2d at 662).
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-DR-2508 | June 29, 2017 Page 8 of 10
effective as of a date no earlier than the date of the petition to modify. Id. at
820-21.
[17] Here, Father argues that the trial court should have retroactively modified his
child support obligation to the date of his incarceration, citing the opinion of
this court in Douglas v. Indiana Family & Social Services. Administration, 954
N.E.2d 1090 (Ind. Ct. App. 2011), trans. denied. However, in Douglas, this court
simply held that the rule in Lambert and Clark applied even to a parent who was
incarcerated for felony nonsupport of a dependent child. Id. at 1098. Father
argues that the public policy rationale we noted in Douglas “outweighs the date
of petition holding outlined in Becker, especially given that Appellant filed his
Motion to Retroactively Abate Child Support only seventeen (17) days after his
release from incarceration.” Appellant’s Br. at 9. Father further argues that he
should not be “punished for not filing his Motion to Retroactively Abate Child
Support at an earlier date during his incarceration.” Id.[18] However, the policy rationale we noted in Douglas was simply that set forth by
our supreme court in Lambert and later in Clark. Our opinion in Douglas simply
applied these holdings to a parent who was incarcerated for nonsupport of a
child. Nothing in our Douglas opinion suggests that it is in conflict with Becker.7
The bottom line is that Father’s argument that his child support obligation
should be retroactively modified or abated to the date of his incarceration is
7
Even if it were, Becker would control. As in intermediate appellate court, “we are bound by the decisions of
our supreme court.” Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002) (citations omitted), trans.
denied.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-DR-2508 | June 29, 2017 Page 9 of 10
clearly incompatible with the controlling opinion of our supreme court in
Becker. Nothing in our opinion in Douglas suggests otherwise. If Father wished
to have his child support obligation reduced due to his incarceration, he should
have filed a petition to modify his child support while he was incarcerated. For
whatever reason, Father did not file a petition to modify his child support until
well after his release from incarceration, and under Becker, the trial court had no
authority to retroactively modify Father’s child support obligation to any date
earlier than the date he filed his petition to modify. 902 N.E.2d at 820–21.
Conclusion
[19] The trial court did not err in denying Father’s motion to retroactively modify
his child support obligation to the date of his incarceration. Our supreme court
has rejected this very argument, and nothing in our more recent case law
purports to modify or alter this binding precedent. We therefore affirm the
judgment of the trial court.8
[20] Affirmed.
Kirsch, J., and Altice, J., concur.
8
In her appellee’s brief, Mother requests that we award her appellate attorney fees. Under Indiana Appellate
Rule 66(E), we may, in our discretion, order one party to pay another party’s appellate attorney fees if the
appeal “is frivolous or in bad faith.” Blackman v. Gholson, 46 N.E.3d 975, 981 (Ind. Ct. App. 2015), reh’g
denied. We will award appellate attorney fees only if the appeal is permeated with meritlessness, bad faith,
frivolity, harassment, vexatiousness, or purpose of delay. Id. We use extreme restraint in deciding whether to
award appellate attorney fees because of the potential chilling effect upon the exercise of the right to appeal.
Id. Under this rather demanding standard, we cannot say that Father’s appeal is so devoid of merit as to
justify an award of appellate attorney fees.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-DR-2508 | June 29, 2017 Page 10 of 10