      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                              FILED
      regarded as precedent or cited before any                      Jun 29 2017, 8:38 am
      court except for the purpose of establishing
                                                                         CLERK
      the defense of res judicata, collateral                        Indiana Supreme Court
                                                                        Court of Appeals
      estoppel, or the law of the case.                                   and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Murielle S. Bright                                       Joseph A. Colussi
      North Vernon, Indiana                                    Colussi Law Office
                                                               Madison, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Joshua Abbott,                                           June 29, 2017
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               39A01-1610-DR-2508
              v.                                               Appeal from the Jefferson Circuit
                                                               Court
      Trinady Abbott,                                          The Honorable Darrell M. Auxier,
      Appellee-Petitioner.                                     Judge
                                                               Trial Court Cause No.
                                                               39C01-1101-DR-20



      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 39A01-1610-DR-2508 | June 29, 2017   Page 1 of 10
                                 Facts and Procedural History

[3]   Father married Trinaday Abbott (“Mother”) in September 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 February 2, 2014, Father was arrested 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 confinement, 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 trial court

      denied. Father filed a second petition to modify his sentence on March 17,

      2016. This time, the court granted the petition, and Father was ordered to serve

      the 850 days remaining on his sentence in community corrections, 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 39A01-1610-DR-2508 | June 29, 2017   Page 2 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 he 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 incarcerated. 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 petition to modify.” Appellant’s App. p. 14

      (citing Becker v. Becker, 902 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

      modified, 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 correct 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 39A01-1610-DR-2508 | June 29, 2017          Page 3 of 10
              does 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. 2011) (transfer[] denied) are considered together and not
              independently 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 the 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 court’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 explained above, our supreme court initially granted transfer
      in Douglas, but later vacated its transfer order and denied transfer. Accordingly, Douglas is still valid
      precedent.

      Court of Appeals of Indiana | Memorandum Decision 39A01-1610-DR-2508 | June 29, 2017         Page 4 of 10
[10]   On October 31, 2016, Father filed a notice of appeal.3


                                        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, 2014. The origin of Father’s argument can be traced to the

       opinion of our supreme court in Lambert v. Lambert, 861 N.E.2d 1176 (Ind.

       2007).

[12]   In 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 Indiana 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
         On 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 notice of appeal was therefore also untimely. The 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 that 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 the ruling of our motions panel in this case. The untimely filing of a
       notice of appeal is not a jurisdictional defect. In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). Even
       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 merits, 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 39A01-1610-DR-2508 | June 29, 2017              Page 5 of 10
       not be there during incarceration.” Id. at 1176. Instead, trial courts should

       “calculate 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 support

       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. Although 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-child




       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-DR-2508 | June 29, 2017   Page 6 of 10
       relationship.”4 Id. However, the rule set forth in Lambert only “counsels against

       imputing pre-incarceration 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 child

       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 continuing as to make the

       terms of an existing support order unreasonable, thereby justifying modification

       of the support order. As in Lambert, the Clark court held 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).” 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 have his child support obligation reduced on grounds that he was

       incarcerated. The trial court granted the petition retroactive to the date of the

       Lambert decision. The father appealed, contending that the trial court should

       have retroactively reduced his child support obligation, not just to the date of




       4
         The Lambert court cited sociological evidence supporting the conclusion that the 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 support 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 39A01-1610-DR-2508 | June 29, 2017               Page 7 of 10
Lambert, but to the date of the divorce decree, which was entered while father

was incarcerated. On transfer to our supreme court,5 the court noted 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. Becker, 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 not retroactively reduce or eliminate such obligations.’” Id. (quoting

Whited v. Whited, 859 N.E.2d 657, 661 (Ind. 2007)). Thus, 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, 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. granted, 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 39A01-1610-DR-2508 | June 29, 2017                Page 8 of 10
       effective as of a date no earlier than the date of the petition to modify. Id. at

       820-21.

[17]   Here, 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. Indiana Family & Social Services. Administration, 954

       N.E.2d 1090 (Ind. Ct. App. 2011), trans. denied. However, in Douglas, this court

       simply held that the rule in Lambert and Clark applied even to a parent who was

       incarcerated for felony nonsupport 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 from incarceration.” Appellant’s Br. at 9. Father further argues that 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. Our 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
        Even 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 39A01-1610-DR-2508 | June 29, 2017             Page 9 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 petition to modify his child support while he was incarcerated. For

       whatever reason, Father did not file a petition to modify his child support until

       well after his release from incarceration, and under Becker, the trial court had 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 820–21.


                                                     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. Our supreme court

       has rejected this very argument, and nothing in our more recent case law

       purports to 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 appellee’s brief, 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 975, 981 (Ind. Ct. App. 2015), reh’g
       denied. We will award appellate attorney fees only if the appeal is permeated with meritlessness, bad faith,
       frivolity, harassment, vexatiousness, 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 attorney fees.

       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-DR-2508 | June 29, 2017               Page 10 of 10
