Gary R. Anderson v. Jamie R. Anderson (mem. dec.)
02A03-1606-DR-1533
| Ind. Ct. App. | Mar 29, 2017Background
- Gary Anderson was ordered to pay $141/week child support in a 2008 dissolution for three daughters (I.A., O.A., Z.A.).
- In 2013 Gary was convicted of two Class B felony child-molesting counts and incarcerated; projected release 2021.
- Gary filed a pro se motion to modify support on November 14, 2013, arguing incarceration constituted a substantial, continuing change in circumstances and support should be set on his actual prison earnings.
- The trial court denied the 2013 motion, reasoning that Lambert/Clark did not apply where the incarceration resulted from crimes against the obligor’s children; Gary did not appeal that order.
- Gary filed subsequent motions in 2014 and 2016; the court treated them as untimely requests to revisit the 2013 order and denied relief. Gary appealed the 2016 denial.
- The State conceded the trial court erred on the merits of the 2013 denial; the Court of Appeals exercised discretion to reach the merits despite the procedural forfeiture and remanded with instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether incarceration constitutes a substantial and continuing change of circumstances warranting modification of child support | Gary: incarceration qualifies; support should be set based on actual prison earnings | Jamie/State: Clark should not apply because Gary’s incarceration resulted from crimes against his children | Court: Clark/Lambert logic applies regardless of crime; trial court erred; remanded to set support based on actual prison earnings |
| Whether the appeal was procedurally barred as an untimely challenge to the 2013 order | Gary: court should address merits despite procedural posture | State: this appeal is a belated/untimely attempt to attack the 2013 order (forfeited) | Court: untimely notice may forfeit issues but does not deprive jurisdiction; exercised discretion to reach merits |
| Retroactivity of any modification | Gary requested modification be retroactive to his first motion (Nov. 14, 2013) | State did not contest retroactivity on appeal | Court: ordered child support set on actual earnings while incarcerated and made retroactive to Nov. 14, 2013 |
Key Cases Cited
- Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007) (establishes principles on modification of support where obligor’s circumstances change)
- Clark v. Clark, 902 N.E.2d 813 (Ind. 2009) (incarceration may be a substantial, continuing change warranting modification; support should be set on actual earnings/assets while incarcerated)
- Douglas v. State, 954 N.E.2d 1090 (Ind. Ct. App. 2011) (applying Lambert/Clark logic to incarcerated obligors regardless of crime)
- Nunley v. Nunley, 955 N.E.2d 824 (Ind. Ct. App. 2011) (same as Douglas; held incarcerated obligor entitled to modification)
- In re D.J., 68 N.E.3d 574 (Ind. 2017) (an untimely notice of appeal does not deprive the reviewing court of jurisdiction; court may exercise discretion to decide forfeited appeals)