Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                    Oct 15 2013, 9:06 am
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.

APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

WILLIAM VANHORN                                     GREGORY F. ZOELLER
Greencastle, Indiana                                Attorney General of Indiana

                                                    KATHY BRADLEY
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

In Re the Paternity of S.P.,                        )
                                                    )
       W.V.,                                        )
                                                    )
       Appellant-Respondent,                        )
                                                    )
               vs.                                  )       No. 18A02-1303-JP-251
                                                    )
       R.P.,                                        )
                                                    )
       Appellee-Petitioner.                         )


                     APPEAL FROM THE DELAWARE CIRCUIT COURT
                         The Honorable Kimberly S. Dowling, Judge
                               Cause No. 18C02-0009-JP-76



                                         October 15, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       W.V. (“Father”) appeals from the trial court’s denial of his motion to stay the

provision of a child support withholding order pertaining to accrued arrearages,

contending that it was implemented without notice to him and without a hearing at which

he could be present.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On September 5, 2000, the State, through the IV-D prosecutor, filed a petition to

establish support for S.P., a minor child. The State was not directly representing S.P.’s

Mother in this matter, but was representing the interests of the State because Mother is a

Title IV-D recipient. See Collier v. Collier, 702 N.E.2d 351, 355 (Ind. 1998) (State has

statutory authority to represent parents in child support modification actions); see also

Ind. Code § 31-25-4-13.1. In 2001, Father was adjudicated the natural father of S.P. and

was ordered to pay support in the amount of $40.00 per week.

       Father fell behind in his child support payments and does not challenge the fact

that he is in arrears in his child support payments. In October 2008, the Title IV-D

Agency instituted an income withholding order and sent it to Father’s employer, Morales

Group. The income withholding applied to both current child support and for payment

against the arrearage. Thereafter, Father was incarcerated in the Indiana Department of

Correction for an entirely unrelated offense.

       In October 2010, Father filed a petition to lower his child support obligation. In

February 2011, an income withholding notice was sent to Father’s new employer, the

Putnamville Correctional Facility.    On January 18, 2012, the trial court granted the

                                                2
petition to lower child support, eliminating Father’s obligation to pay child support from

October 15, 2010 until the first Friday after Father’s release from incarceration. A search

of the Indiana Department of Correction offender database reflects that Father’s projected

release date is July 12, 2018. See www.in.gov/apps/indcorrection/ofs/ofs. (last visited on

Sept. 5, 2013). On January 18, 2012, an amended income withholding notice was sent to

Putnamville Correctional Facility and reflected that no current child support was to be

withheld, but that the $45.00-per-week arrearage payment was to be withheld. The notice

provided that if the full amount could not be withheld, then the employer was to withhold

up to 55% of Father’s disposable income.

       On October 12, 2012, Father sent a letter to the trial court in which he sought a

review of the income withholding order. Father stated that although he understood “the

purpose of [the income withholding], having 55% of his prison income withheld did not

leave enough money for him “to survive.” Appellant’s App. at 59. Father also alleged

that he never received notice of the amended withholding order.

       On January 24, 2013, Father filed an official petition with the trial court requesting

that the court stay the income withholding order. In that petition Father noted that the

trial court had modified his current child support obligation and that he had not been

given notice of the amended withholding order.           He alleged that the Putnamville

Correctional Facility began taking 55% of his prison pay in approximately July 2012.

       On January 28, 2013, the trial court set the matter for hearing and denied Father’s

request to disallow the income withholding order two days later. On March 1, 2013, the

trial court held another hearing and, three days later, issued an order affirming its earlier

                                             3
denial of Father’s request to stay the income withholding order. Father now appeals.

                            DISCUSSION AND DECISION

       We begin our review of the issues presented by recognizing that under our

standard of review we place a “strong emphasis on trial court discretion in determining

child support obligations” and acknowledging “the principle that child support

modifications will not be set aside unless they are clearly erroneous.” Lea v. Lea, 691

N.E.2d 1214, 1217 (Ind. 1998) (quoting Stultz v. Stultz, 659 N.E.2d 125, 128 (Ind.

1995)).

       One of the purposes of child support is to provide a child with regular and
       uninterrupted support. It has long been held the right to support lies
       exclusively with the child and a custodial parent holds the child support
       payments in trust for the child’s benefit. As a constructive trustee, the
       custodial parent is the trustee of the non-custodial parent’s obligation to pay
       and may not contract away the benefits of the constructive trust. In
       addition, once funds have accrued to the child’s benefit, the trial court lacks
       the power to reduce, annul, or vacate the child support order retroactively.
       Ind. Code §31–16–16–6(a)[]. Thus, a party is generally required to make
       support payments in the manner specified in the child support order until
       the order is modified or set aside.

       There are two exceptions to the rule prohibiting retroactive modification of
       support already accrued, however. First, retroactive modification is
       allowed where the parties have agreed to and carried out an alternate
       method of payment which substantially complies with the spirit of the
       decree. Second, retroactive modification is allowed where the obligated
       parent, by agreement with the custodial parent, “takes the child into his or
       her home, assumes custody, provides necessities, and exercises parental
       control for such a period of time” that a permanent change of custody is
       effected.

Hicks v. Smith, 919 N.E.2d 1169, 1171-72 (Ind. Ct. App. 2010) (most internal citations

omitted). Neither of the exceptions to the rule prohibiting retroactive modification of

support already accrued applies in this situation.

                                              4
       Indiana Code section 31-16-15-2.5 is the provision allowing a Title IV-D agency

to issue an income withholding order with a support order, and to implement the

withholding order after giving notice unless a trial court stays the implementation of the

order. Further, Indiana Code section 31-16-15-3.5 sets forth the information the Title IV-

D agency must give to the obligor.           The obligor is allowed to challenge the

implementation of the income withholding order within twenty days after the date the

notice is mailed. Ind. Code § 31-16-15-3.5(b)(5)(C). If the obligor challenges the order,

the Title IV-D agency must schedule an administrative hearing. Ind. Code § 31-16-15-

3.5(b)(5)(E).   The “only basis for contesting the implementation of an income

withholding is a mistake of fact.” Ind. Code §31-16-15-3.5(b)(5)(D) (emphasis added);

Ind. Code § 31-16-15-4.3(b).

       A trial court, under Indiana Code section 31-16-15-0.5(c), may order a stay of an

implementation order if:

       (1) One (1) of the parties demonstrates and the court finds good cause not
       to order immediate income withholding by finding all of the following:
       (A) A stay of implementation of the income withholding order is in the best
       interests of the child.
       (B) The obligor has a history of substantially uninterrupted, full, and timely
       child support payments, other than payments made through an income
       withholding order or another mandatory process of previously ordered child
       support, during the previous twelve (12) months.
       (C) The court issues a written finding that an income withholding order
       would cause an extraordinary hardship on the obligor.

       Father challenges the authority of the IV-D agency to implement the order because

he did not receive the appropriate notice prior to the implementation of the order and,

consequently, did not have the opportunity to challenge the order. The relief Father seeks


                                             5
is for this court to reverse the trial court’s ruling and allow Father the opportunity to

contest the income withholding order in an effort to set a percentage, which in his opinion

more appropriately corresponds to his income from his prison job. The record reveals

that in 2008, the IV-D agency implemented an income withholding order against Father

by sending notice to his employer, Morales Group. After determining that Father was

incarcerated and had a new employer, the Title IV-D agency sent notice to the

Putnamville Correctional Facility.

       As the State acknowledges, any challenge to the income withholding order sent to

the Putnamville Correctional Facility would fail if the original implementation order from

2008 were deemed valid. Indiana Code section 31-16-15-3.5(a) provides in pertinent

part, “The notice is sufficient for all future income withholding until the child support

obligation is fully satisfied.” Additionally, Indiana Code section 31-16-15-26 provides

that if the Title IV-D agency or the court becomes aware that the child support obligor

has a new income payor after the income withholding has been implemented, the court or

the Title IV-D agency shall send the income withholding order to the new income payor.

In order for Father’s claim to be considered, we need to look at the notice provided in

2008, the original notice.

       In 2008, the IV-D agency implemented an income withholding order against

Father by sending notice to his employer, Morales Group. The record of that action is

clear. What is not so clear from the record is whether appropriate notice was sent to

Father. We have held that in the absence of clear evidence of notice, an appeal can be

remanded to the trial court for a determination of whether the IV-D agency had authority

                                            6
to implement the income withholding order. Flowers v. Flowers, 799 N.E.2d 1183, 1193

(Ind. Ct. App. 2003).

       We prefer to decide a case upon the merits whenever possible.           Dedelow v.

Pucalik, 801 N.E.2d 178, 183 (Ind. Ct. App. 2003). This is so, because,

       The rule that parties will be held to trial court theories by the appellate
       tribunal does not mean that no new position may be taken, or that new
       arguments may not be adduced; all that it means is that substantive
       questions independent in character and not within the issues or not
       presented to the trial court shall not be first made upon appeal. Questions
       within the issues and before the trial court are before the appellate court,
       and new arguments and authorities may with strict propriety be brought
       forward.

Id. at 183-84 (quoting Bielat v. Folta, 141 Ind. App. 452, 454, 229 N.E.2d 474, 475

(1967)). Furthermore, “[i]t is not the policy of the law to require unnecessary things to be

done. . . .” Warren v. Ind. Tel. Co., 217 Ind. 93, 114, 26 N.E.2d 399, 407 (1940).

       Without trivializing the importance of compliance with the statutory notice

provisions, we observe that the arguments Father would have made at a hearing set on his

challenge to the implementation order were before the trial court in this case, such that a

remand is not necessary. In Father’s letter to the trial court dated October 12, 2012,

Father indicated his understanding of the purpose of the income withholding order, but

argued that he earns $30-$35 per month in prison income. He claimed that, after the

Department of Correction withheld 15% of his income for a re-entry account, and the

additional 55% was withheld pursuant to the income withholding order, he was left “with

NOT enough to survive.”         Appellant’s App. at 59.      In Father’s motion to stay

implementation of the withholding order, Father noted that his support obligation was


                                             7
modified to reduce his current support obligation to $0 for the period from October 15,

2010, to the first Friday following his release from incarceration. Id. at 57. At the

hearing held on March 1, 2013, Father indicated that he was seeking a stay of the

implementation order because he makes only about $30 per month at his prison job and

70% of his income is deducted for a re-entry account and the withholding order.

Appellee’s App. at 3-4. Father claimed that the income withholding order was “taking

away the only living expenses that [he] had access to.” Id. at 4.

       We agree with the State that Father’s argument is a bit of a stretch. Father is

incarcerated. Although Father claims that the Department of Correction is denying him

the basic necessities with which to survive, he has presented no evidence to support this

claim. Nonetheless, we address Father’s contention that the withholding order, which

pertains to his child support arrearage, should be stayed or reduced due to the fact of his

incarceration.

       In Lambert v. Lambert, 861 N.E.2d 1176, 1177 (Ind. 2007), our Supreme Court

held that “incarceration does not relieve parents of their child support obligations.”

Father’s current support obligation was abated effective October 2010, but the trial court

was not required to do so because Father did have income. See Clark v. Clark, 902

N.E.2d 813, 817 (Ind. 2009) (“support obligation[s] should be based on the obligated

parent’s actual earnings while incarcerated (and other assets available to the incarcerated

person).”). Further, there is no requirement that if child support is abated, payments for

arrearages must be as well. See Whited v. Whited, 859 N.E.2d 657, 661 (Ind. 2007)



                                             8
(“after support obligations have accrued, a court may not retroactively reduce or

eliminate such obligations.”).

       Moreover, Father’s claim that 55% of his current income is too much also fails.

The State may withhold a maximum arrearage amount up to 60%of the obligor’s weekly

disposable income. 15 U.S.C. § 1673(b)(2); In re the Paternity of A.M.P., 896 N.E.2d

1188, 1192 (Ind. Ct. App. 2008) (“subject to some exceptions, caps withholding at 50 or

60 percent of the obligor’s weekly income. . . .”). Mistake of fact is the only basis for

challenging the implementation of a child support withholding order. Ind. Code § 31-16-

15-3.5(B)(5)(D); Ind. Code § 31-16-15-4.3(b). A mistake of fact occurs “when some fact

which really exists is unknown, or, some fact is supposed to exist which really does not.”

Hill v. Bethlehem Steel Corp., 690 N.E.2d 1191, 1194 (Ind. Ct. App. 1997) (quoting

Terre Haute Paper Co. v. Price, 47 N.E.2d 166, 170 (Ind. Ct. App. 1943)). Father makes

no such claim and does not dispute either his paternity of S.P. or that he owes a child

support arrearage.

       Finding that Father has failed to establish that there is a factual basis by which the

implementation of the withholding order is erroneous we affirm the trial court. While it

is unclear whether Father received notice of the intent to withhold income, we find the

record was sufficient for the trial court to consider his challenges, and for our review of

the trial court’s decision. The trial court correctly denied Father’s motion to stay or

terminate the withholding order. Affirmed.

       ROBB, C.J., concurs.

       RILEY, J., dissents with separate opinion

                                             9
                               IN THE
                     COURT OF APPEALS OF INDIANA

IN RE: THE PATERNITY OF S.P:                       )
                                                   )
W.V.,                                              )
                                                   )
        Appellant-Respondent,                      )
                                                   )
               vs.                                 )    No. 18A02-1303-JP-251
                                                   )
R.P.,                                              )
                                                   )
        Appellee-Petitioner.                       )


RILEY, Judge, dissenting

        I respectfully disagree with the majority’s decision to affirm the trial court’s denial

of Father’s motion to stay the provision of a child support withholding order pertaining to

accrued arrearages. A prerequisite to the implementation of a withholding order is the

issuance of a notice of intent to withhold income by the Title IV-D Agency to the obligor.

See I.C. § 31-16-15-3.5. Here, however, the State acknowledges that while the Title IV-

D Agency mailed a notice to Father’s employer, “the record is not clear as to whether

appropriate notice was sent” to Father. (Appellee’s Br. p. 7). In the absence of clear

evidence of compliance with the statutory notice provisions, I would remand to the trial

court for a determination of whether the Title IV-D Agency had authority to implement

the income withholding order. See Flowers v. Flowers, 799 N.E.2d 1183, 1193 (Ind. Ct.

App. 2003).


                                              10
