Nunley v. Nunley
955 N.E.2d 824
| Ind. Ct. App. | 2011Background
- Nunley and Waldrath, divorced in 2007; child support ordered at $214/week, later reduced to $105/week in 2008; Nunley accumulated >$18,000 arrears by 2009; charged with Class C felony nonsupport, pled to Class D felony nonsupport and sentenced to two years with some suspended; probation revoked in 2011 and Nunley jailed for the previously suspended term; Nunley petitioned for reduction in child support due to incarceration-induced income loss; trial court found no earning ability/assets and reduced support to zero with automatic revert upon release; State appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether incarceration for nonsupport constitutes a change in circumstances justifying a reduction in child support. | Nunley—State seeks modification; argues Clark/Lambert carve out not apply to nonsupport. | State—no exception for nonsupport; Clark/Lambert apply limitedly; incarceration can justify modification if no income/assets. | No abuse; incarceration for Class D nonsupport constitutes change in circumstances; order to revert upon release affirmed. |
Key Cases Cited
- Clark v. Clark, 902 N.E.2d 813 (Ind. 2009) (incarceration can be a change in circumstances when no assets or income available)
- Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007) (initial orders based on unavailable income; error to do so)
- Douglas v. State, 954 N.E.2d 1090 (Ind.Ct.App. 2011) (no exception carved for nonsupport incarceration; general rules apply)