The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

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Monday, February 23, 2009

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In In the Matter of the Guardianship of R.M.M., a 7-page opinion, Judge Barnes writes:

[Appellant pro se] Joshua March appeals the trial court’s denial of his petition to modify his weekly child support obligation. We reverse and remand. * * *

On January 18, 2007, the trial court modified the child support order so that each biological parent was to pay $67 per week. The trial court found that March and Peankhamhor were “each imputed to have a weekly gross income of $210.”

March filed a pro-se petition to modify child support on August 17, 2007, arguing that the child support order was inconsistent with Indiana law, specifically Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007), issued on February 22, 2007. The trial court held a hearing on August 28, 2007, and took the matter under advisement. It did not issue an order until March 30, 2008, which denied March’s petition for modification. March filed a timely motion to correct error, which was denied on July 2, 2008. This appeal followed. * * *

March raises one issue, which we restate as whether the trial court abused its discretion by denying March’s petition to modify child support. * * *

In Lambert, our supreme court held that when determining support orders, “courts should not impute potential income to an imprisoned parent based on pre-incarceration wages or other employment-related income, but should rather calculate support based on the actual income and assets available to the parent.” Lambert v. Lambert, 861 N.E.2d 1176, 1177 (Ind. 2007). It was careful to emphasize, however, that incarceration does not relieve parents of their child support obligations. Id. Throughout its analysis, the supreme court was careful to distinguish Lambert’s situation where determination of an initial support order was being made with situations which involved determining whether incarceration justified the reduction of an existing support order. Id. at 1177. March is not attempting to reduce an existing child support order after being incarcerated; rather, he was incarcerated at the time of the calculation of the initial order, had his support increased while incarcerated, and he has been incarcerated throughout the entire course of this litigation.

March claims that the Lambert case mandates “an incarcerated parent’s income should not be imputed to minimum wage if the parent is not actually making a 40 hour minimum wage income.” App. p. 17. Our supreme court does not actually make such a specific statement in Lambert. * * * We acknowledge that our supreme court granted transfer of [Clark v. Clerk] on September 18, 2008, and we await an opinion regarding Lambert’s application to modifications of child support orders based upon changed circumstances of incarceration and the application of minimum wage as a floor to setting a child support obligation. * * *

The trial court was incorrect in denying March’s petition for modification. March presented evidence that he was earning approximately $6 per month, yet the trial court continued a $67 per week support order. The evidence before the court indicated that the previous child support obligation of $15 per week was more appropriate, especially considering the Lambert decision. March is not attempting to avoid his child support obligations and candidly admitted his willingness to pay a lesser amount.

Our supreme court noted in Lambert that “to the extent that an order fails to take into account the real financial capacity of a jailed parent, the system fails the child by making it statistically more likely that the child will be deprived of adequate support over the long term.” * * *

The trial court abused its discretion in denying March’s petition for child support modification. We reverse and remand.