Court of Appeals of Indiana | Memorandum Decision 39A01

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Murielle S. Bright North Vernon, Indiana A TTORNEY FOR A PPELLEE Joseph A. Colussi Colussi Law Office Madison, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Joshua Abbott , Appellant

- Respondent ,

v. 

### Trinady Abbot t , Appellee

- Petitioner

. June 29, 2017 Court of Appeals Ca se No. 39A01

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- 2508 Appeal from the Jefferson Circuit Court The Honorable Darrell M. Auxier , Judge Trial Court Cause No. 39C01

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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

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### Facts and Procedural History

[3] Father married Trinaday Abbott ( “ Mother ” ) in Sept ember 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 Fe bruary 2, 2014, Father was arreste d 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 conf inement, 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 t rial court denied. Father filed a second petition to modify his sentence on March 17, 2016

. T his time, t he court granted the petition, and Father was ordered to serve the 850 days remaining on his sentence in community correcti ons, 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

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- 2508 | June 29, 2017 Page 3 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 h e 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 incarcerate d. 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 p etition to modify. ” Appellant ’ s App. p . 14 ( citing Becker v. Becker , 9 02 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

m odified, 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 cor rect 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

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- 2508 | June 29, 2017 Page 4 of 10 do es 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. 201 1) ( transfer [] denied ) are considered together and not indep endently 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 t he 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 co urt ’ 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 exp lained above, our supreme court initially granted transfer in Douglas , but later vacated its transfer order a nd denied transfer. Accordingly, Douglas is still valid precedent.Court of Appeals of Indiana | Memorandum Decision 39A01

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- 2508 | June 29, 2017 Page 5 of 10 [10] On October 31, 2016, Father filed a notice of appeal

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### 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, 201 4

. The origin of Father ’ s argument can be traced to the opinion of our supreme court in Lambert v. Lamb ert , 861 N.E.2d 1176 (Ind. 2007)

.

[12] I n 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 I ndiana 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 O n 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 no tice of appeal was therefore also untimely

. T he 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 t hat 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 th e ruling of our motions panel in this case

. T he untimely filing of a notice of appeal i s not a jurisdictional defect

. In re Adoption of O.R. , 16 N.E.3d 965, 971 (Ind. 2014)

. E ven 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 m erits, 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

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- 2508 | June 29, 2017 Page 6 of 10 not be there during incarceration. ” Id . at 1176. Instead, trial courts should

“ calcula te 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 supp ort 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. A lthough 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

- childCourt of Appeals of Indiana | Memorandum Decision 39A01

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- 2508 | June 29, 2017 Page 7 of 10 relationship. ” 4 Id

. However, the rule set forth in Lambert only “ counsels against imputing pre

- i ncarceration 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 chi ld 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 conti nuing as to make the terms of an existing support order unreasonable, thereby justifying modification of the support order. As in Lambert, t he Clark court held that “ a support obligation should be set based on the obligated parent ’ s actual earnings while i ncarcerated (and other assets availab le 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 hav e his child support obligation reduced on grounds that he was incarcerated. The t rial court granted the petition retroactive to the date of the Lambert decision. The father appealed, contending that the trial court should have retroactively reduc ed his chi ld support obligation , not just to the date of

4 The Lambert court cited sociological evidence supporting the conclusion that th e 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 s upport 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

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- 2508 | June 29, 2017 Page 8 of 10 Lambert , but to the date of the divorce decree, which was entered while father was incarcerated. O n transfer to our supreme court, 5 the court n oted 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. Becke r, 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 n ot retroactively reduce or eliminate such obligations. ’” Id . (quoting Whited v. Whited , 859 N.E.2d 657, 661 (Ind. 2007) )

. Thus, t he modification of a support obligation may only relate back to the date the petition to modify was filed, and not an earlier d ate, 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. grante d, 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

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- 2508 | June 29, 2017 Page 9 of 10 effective as of a date no earlier than the date of the petition to modify

. Id . at 820

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[17] H ere , 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. Ind iana Family & Social Ser vices . Admin istration , 954 N.E.2d 1090 (Ind. Ct. App. 2011) , trans. denied

. However, i n Douglas , this court simply held that the rule in Lambert and Clark applied even to a parent who was incarcerated for felony no nsupport 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 f r o m incarceration. ” Appellant’s Br. at 9. Father further argues t hat 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

. O ur 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 E v en 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

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- 2508 | June 29, 2017 Page 10 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 petit ion to modify his child support while he was incarcerated

. For whatever reason, Father did not file a petition to modify his chil d support until well after his release from incarceration, and under Becker , the trial court ha d 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

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### 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

. O ur supreme court has rejected this very argument, and nothing in our more recent case law purports t o 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 a ppellee ’ s b rief, 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 9 75, 981 (Ind. Ct. App. 2015), reh’g denied

. W e will award appellate attorney fees only if the appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexa tiousness, 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 att orney fees.