Daniel Fuquay v. Teresa Higginson (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 14 2017, 10:18 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Daniel R. Fuquay Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel Fuquay, February 14, 2017
Appellant-Respondent, Court of Appeals Case No.
82A05-1607-JP-1621
v. Appeal from the Vanderburgh
Superior Court
Teresa Higginson, et al., The Honorable Brett J. Niemeier,
Appellees-Petitioners. Judge
Trial Court Cause No.
82D01-8903-JP-217
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, Daniel Fuquay (Fuquay), appeals the trial court’s denial
of his request to retroactively modify his child support obligation.
[2] We affirm.
ISSUE
[3] Fuquay raises two issues on appeal, which we restate as the following single
issue: Whether the trial court abused its discretion by denying his request to
retroactively modify his child support obligation.
FACTS AND PROCEDURAL HISTORY
[4] On November 26, 1987, Cameron Minor (Minor)—emancipated as of
November 2, 2006—was born out of wedlock to Appellee-Petitioner, Teresa
Higginson (Higginson). On April 12, 1989, the trial court issued an order,
establishing paternity of Minor in Fuquay and requiring Fuquay to pay child
support in the amount of $25 per week. The order specified that Fuquay’s
support obligation would be increased by $15 per week upon Minor entering
first grade.
[5] On March 26, 1991, Fuquay was sentenced to serve twenty years at the
Department of Correction following a conviction for drug dealing. On April
24, 1992, Fuquay was sentenced in a second case and ordered to serve five
years for drug dealing. Accordingly, he was continuously incarcerated from
December 9, 1990, until June 6, 2003. During his time of incarceration, he did
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not petition the court for a modification of child support. As of March 22,
2016, Fuquay’s total child support arrearage amounted to $27,153.90. He is
currently paying $45 per week on the arrearage by way of an income
withholding order.
[6] On January 27, 2016, Fuquay filed a “verified petition to correct child support
in accordance with law.” (Appellant’s App. Vol. II, p. 17). Because most of his
current arrearage was incurred while incarcerated, he requested the trial court
to retroactively modify his child support. On May 6, 2016, the trial court
conducted a hearing and denied Fuquay’s petition on May 9, 2016. On June
15, 2016, the trial court denied Fuquay’s motion to correct error.
[7] Fuquay now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Fuquay contends that the trial court abused its discretion when it denied his
petition to retroactively modify his arrearage, which had largely been incurred
while he was incarcerated. In reviewing a decision regarding a petition to
modify child support, we will reverse only if there is a showing that the trial
court abused its discretion. Mertz v. Mertz, 971 N.E.2d 189, 193 (Ind. Ct. App.
2012), trans. denied. We consider the evidence most favorable to the judgment
without reweighing the evidence or judging the credibility of the witnesses. Id.
An abuse of discretion occurs when the decision is clearly against the logic and
effect of the facts and circumstances that were before the trial court, including
any reasonable inferences to be drawn therefrom. Id.
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[9] “[I]ncarceration does not relieve parents of their child support obligations.”
Lambert v. Lambert, 861 N.E.2d 1176, 1177 (Ind. 2007). However, it is possible
for a trial court to “calculate support based on the actual income and assets
available to the [incarcerated] parent.” Id. “Of course, this accommodation
must yield to the longstanding rule that a court may not retroactively modify
child support obligations that have accrued.” State v. Gaw, 46 N.E.3d 1278,
1281 (Ind. Ct. App. 2015). In a pair of decisions issued on the same day, our
supreme court explicitly stated that while incarceration may constitute a
substantial change in circumstances warranting a modification of an existing
child support obligation, such modification may not take effect on a date earlier
than the date on which the petition to modify the child support obligation is
filed. Clark v. Clark, 902 N.E.2d 813, 814 (Ind. 2009); Becker v. Becker, 902
N.E.2d 818, 819 (Ind. 2009).
[10] Here, Fuquay was incarcerated from December 9, 1990, until June 6, 2003,
during which time he did not file a petition to modify his child support
obligation. In fact, it was not until January 27, 2016, almost thirteen years after
he was released from prison, that he filed a petition seeking to reduce his child
support due to his incarceration. As Fuquay is now seeking to retroactively
modify his child support obligation, the trial court properly denied his petition.
CONCLUSION
[11] Based on the foregoing, we hold that the trial court did not abuse its discretion
by denying Fuquay petition to modify child support.
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[12] Affirmed.
[13] Crone, J. and Altice, J. concur
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