Joshua Abbott v. Trinady Abott (mem. dec.)
39A01-1610-DR-2508
| Ind. Ct. App. | Jun 29, 2017Background
- Father and Mother divorced in 2011; Father was ordered to pay $90/week child support.
- Father was arrested Feb 2, 2014, pleaded guilty to multiple charges, and was incarcerated until Aug 6, 2016 (released to community corrections that date).
- Father claims criminal counsel told him child support would abate during incarceration; he did not file a modification motion while incarcerated and accrued roughly $11,000 in arrears.
- On Aug 22, 2016 (shortly after release), Father moved to retroactively abate child support for the incarceration period; trial court denied the motion the next day.
- Father filed a petition to modify on Sept 8, 2016 and pursued motions to correct error and reconsider; trial court and this Court upheld denial based on controlling precedent.
Issues
| Issue | Abbott's Argument | Mother/Trial Court Argument | Held |
|---|---|---|---|
| Whether child support can be retroactively abated to the start of incarceration | Abbott: court should retroactively abate support to Feb 2, 2014 because Lambert/Clark policy favors reduction and he filed soon after release | Mother/Trial Court: Becker controls — retroactive modification may not be effective earlier than date of petition to modify | Denied: Becker controls; retroactive modification cannot predate the petition filing date absent narrow exceptions |
Key Cases Cited
- Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007) (incarcerated parent's support should be based on actual income during incarceration; court rejected automatic suspension)
- Clark v. Clark, 902 N.E.2d 813 (Ind. 2009) (incarceration can be a changed circumstance justifying modification and support should reflect incarcerated parent's actual earnings)
- Becker v. Becker, 902 N.E.2d 818 (Ind. 2009) (trial court may only make a child support modification due to incarceration effective no earlier than date petition to modify was filed)
- Douglas v. Indiana Family & Social Servs. Admin., 954 N.E.2d 1090 (Ind. Ct. App. 2011) (applies Lambert/Clark to a parent incarcerated for felony nonsupport; does not conflict with Becker)