Thursday, March 12, 2009
Ind. Decisions - Supreme Court decides two today, extending Lambert
In Todd Allen Clark v. Michelle D. Clark, a 7-page, 5-0 opinion, Justice Sullivan writes:
In Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007), this Court held that pre- incarceration income should not be imputed to an imprisoned parent when setting an initial order of child support. But, until the question was before us, we declined to go further and decide whether or not incarceration constitutes a substantial change in circumstances justifying modification of an existing child support obligation. That question is presented in this case and we conclude, based on the same reasoning we employed in Lambert, that modification is justified.In Gary Becker v. Heather Becker, a 4-page, 5-0 decision today granting transfer with opinion today, Justice Sullivan writes:
In light of our analysis in Lambert, we hold that in petitions to modify a support order, incarceration may serve as a changed circumstance so substantial and continuing as to make the terms of the support order unreasonable pursuant to I.C. § 31-16-8-1. Thus, it follows that a support obligation should be set based on the obligated parent’s actual earnings while incarcerated (and other assets available to the incarcerated person). To the extent that prior opinions of the Court of Appeals like Holsapple v. Herron, 649 N.E.2d 140, and Davis v. Vance, 574 N.E.2d 330, are inconsistent with this conclusion, we disapprove those decisions.
As articulated in Lambert, a court may order the child support obligation to revert to the pre-incarceration level upon release, consistent with the modification recommendation. 861 N.E.2d at 1182. This has the effect of relieving the custodial parent from the burden of obtaining a new modification order when the obligated parent is released.
Today in Clark v. Clark, – N.E.2d –, No. 35S05-0809-CV-506, slip op. (Ind. Mar. 12, 2009), we hold that incarceration may constitute a substantial change in circumstances justifying modification of an existing child support obligation. This case requires us to determine the effective date of such a modification. We hold that such a modification may not take effect on a date earlier than the date on which the petition to modify is filed. * * *
A trial court has discretion to make a modification of child support relate back to the date the petition to modify is filed, or any date thereafter. Quinn v. Threlkel. * * * The modification of a support obligation may only relate back to the date the petition to modify was filed, and not an earlier date, subject to two exceptions not applicable here. [ILB-spelled out in ftnote 4.]
Nothing in Lambert or Clark suggests a contrary rule for modifications due to incarceration. We now hold that Lambert and Clark do not apply retroactively to modify child support orders already final, but only relate to petitions to modify child support granted after Lambert was decided. 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 petition to modify. Consequently, the date Becker instituted his request for relief represents the earliest date the abatement could become effective.