      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                        FILED
      this Memorandum Decision shall not be
                                                                               Feb 28 2018, 10:23 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                                  CLERK
                                                                                Indiana Supreme Court
      the defense of res judicata, collateral                                      Court of Appeals
                                                                                     and Tax Court

      estoppel, or the law of the case.


      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEES
      John D. Smith                                            Curtis T. Hill, Jr.
      Talladega, Alabama                                       Attorney General of Indiana
                                                               Kyle Hunter
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      John D. Smith,                                           February 28, 2018
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               59A05-1704-DR-988
              v.                                               Appeal from the
                                                               Orange Circuit Court
      Nicole L. Smith and State of                             The Honorable
      Indiana,                                                 Steven L. Owen, Judge
      Appellees-Respondents.                                   Trial Court Cause Nos.
                                                               59C01-0809-JP-146
                                                               59C01-1004-DR-187



      Kirsch, Judge.


[1]   John D. Smith (“Smith”) appeals the trial court’s orders, which granted Smith’s

      motion to enforce the court’s previous order and denied Smith’s motion

      Court of Appeals of Indiana | Memorandum Decision 59A05-1704-DR-988 | February 28, 2018           Page 1 of 6
      requesting a hearing to determine child support arrearages and to refund

      overpaid child support and his motion requesting an order to remove him from

      the Federal Tax/Administrative Offset List. Smith raises the following restated

      issue for our review: whether the trial court’s orders were clearly erroneous.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Smith has two children with his ex-wife Nicole L. Smith. As of December 27,

      2004, Smith was ordered to pay child support for his older child in the amount

      of $50.00 per week. Appellant’s App. Vol. II at 3. As of January 26, 2009, Smith

      was ordered to pay child support for his younger child in the amount of $100.00

      per week. Id. at 5. Smith was incarcerated on April 13, 2011 for crimes

      unrelated to his child support. On June 29, 2015, Smith filed motions for

      abatement of child support during his incarceration in the child support cases

      involving each of his children. The trial court granted Smith’s motions without

      any findings or conclusions. Id. at 9-10.


[4]   Regarding his older child, from the time that Smith was ordered to pay child

      support until the time that he filed the abatement, Smith should have paid

      $27,400.00 in child support. Id. at 20. He had paid only $22,210.74 towards

      that obligation and was $5,189.26 in arrears. Id. As for his younger child, from

      the time that Smith was ordered to pay child support until the time that he filed

      the abatement, Smith should have paid $34,600.00 in child support. Id. at 19.

      He had paid only $20,104.04 towards that obligation and was $14,495.96 in

      Court of Appeals of Indiana | Memorandum Decision 59A05-1704-DR-988 | February 28, 2018   Page 2 of 6
      arrears. Id. In total, Smith was $19,685.22 in arrears when he filed his motion

      for abatement of child support due to his incarceration. The Orange County

      Prosecutor terminated the accrual of Smith’s child support arrearage effective

      June 29, 2015, which was the date that Smith filed his motion for abatement.

      Id. at 18. Because the amount of Smith’s arrearage was over $2,500.00, his case

      was referred to the Federal Tax/Administrative Offset List, and he was sent

      notice of this referral. Id. at 16.


[5]   On November 20, 2015, Smith filed a “Motion to Enforce Court’s Previous

      Order,” and on January 3, 2017, Smith filed a “Motion Requesting a Hearing

      to Determine Child Support Arrearages and Request Refund of Over Paid

      Child Support.” Id. at 25-28, 38-42. On February 3, 2017, Smith also filed an

      “Emergency Motion Requesting an Order for Immediate Removal from the

      Orange County Prosecutor’s Tax/Administrative Offset List.” Id. at 44-46. A

      hearing was held on all of Smith’s motions on March 16, 2017.


[6]   On March 27, 2017, the trial court issued two orders in the separate cases. In

      both orders, the trial court found that each of Smith’s child support obligations

      “is and has been abated as of 06/29/2015 and no current child support has

      accrued since 06/29/2015.” Id. at 48-49. The trial court granted Smith’s

      motion to enforce the court’s previous order “to the extent that it does not

      conflict with this order.” Id. Additionally, the trial court denied Smith’s

      “Motion Requesting a Hearing to Determine Child Support Arrearages and

      Request Refund of Overpaid Child Support” and his “Emergency Motion



      Court of Appeals of Indiana | Memorandum Decision 59A05-1704-DR-988 | February 28, 2018   Page 3 of 6
      Requesting an Order for Immediate Removal from the Orange County

      Prosecutor’s Tax/Administrative Offset List.” Id. Smith now appeals.


                                       Discussion and Decision
[7]   On appeal, we grant “latitude and deference in family law matters” to trial

      judges. Brown v. Lunsford, 63 N.E.3d 1057, 1062 (Ind. Ct. App. 2016) (citing

      Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016)). When reviewing a trial

      court’s determination, “it is not enough that the evidence might support some

      other conclusion, but it must positively require the conclusion contended for by

      appellant before there is a basis for reversal.” Id. “Appellate judges are not to

      reweigh the evidence nor reassess witness credibility, and the evidence should

      be viewed most favorably to the judgment.” Id. Where a trial court makes

      findings of fact and conclusions thereon, the reviewing court, pursuant to

      Indiana Trial Rule 52(A), will not set aside the findings or judgment unless

      clearly erroneous. Steele-Giri, 51 N.E.3d at 123.


[8]   Smith argues that the trial court erred in not applying his child support

      abatement retroactively to the date he began his incarceration. He specifically

      contends that the trial court erred by not enforcing the original order granting

      abatement of child support because it related back to the date of incarceration.1




      1
        We note that, in the conclusion section of his Appellant’s Brief, Smith requests “a refund of all monies
      taken over the amount he legally owed which were taken by the Orange County Prosecutor as well, and to be
      taken off of the United States Treasury’s Administrative Offset list.” Appellant’s Br. at 13. However, he does
      not raise this issue in the body of his brief and does not support any purported argument with citations to
      authority or cogent reasoning. “Indiana Appellate Rule 46(A)(8) provides in part that the argument section

      Court of Appeals of Indiana | Memorandum Decision 59A05-1704-DR-988 | February 28, 2018            Page 4 of 6
[9]    In Indiana, once a support obligation has accrued, a court may not retroactively

       reduce or eliminate such obligations. Whited v. Whited, 859 N.E.2d 657, 661

       (Ind. 2007). Pursuant to Indiana Code section 31-16-16-6, “a court may not

       retroactively modify an obligor’s duty to pay a delinquent support payment.”

       However, two narrow exceptions to this general rule apply. Whited, 859

       N.E.2d at 662. Retroactive modifications are permitted when “(1) 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 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 exercised.” Id.


[10]   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. Becker v. Becker,

       902 N.E.2d 818, 820 (Ind. 2009). “‘The general rule in Indiana is that

       retroactive modification of support payments is erroneous if the modification

       relates back to a date earlier than the filing of a petition to modify.’” Id.

       (quoting Donegan v. Donegan, 605 N.E.2d 132, 133 n.1 (Ind. 1992)). The

       modification of a support obligation may only relate back to the date the




       of the appellant’s brief must ‘contain the contentions of the appellant on the issues presented, supported by
       cogent reasoning,’ along with citations to the authorities, statutes, and parts of the record relied upon.” Reid
       v. Reid, 980 N.E.2d 277, 296 (Ind. 2012). Failure to comply with this rule results in waiver of the argument
       on appeal. Id. at 297. Further, to the extent that he raises the issue that he should be removed from the
       Federal Tax/Administrative Offset List in his reply brief, his argument is also waived. See Jones v. State, 22
       N.E.3d 877, 881 n.4 (Ind. Ct. App. 2014) (finding argument waived because it was raised for the first time in
       reply brief).

       Court of Appeals of Indiana | Memorandum Decision 59A05-1704-DR-988 | February 28, 2018              Page 5 of 6
       petition to modify was filed and not an earlier date, subject only to the two

       previously-cited exceptions which are not applicable here. Id.


[11]   In the present case, Smith asserts that his child support abatement should have

       been retroactive to April 13, 2011, the date he began incarceration, and

       therefore, the trial court in its March 16, 2017 order improperly applied the July

       2, 2015 order granting his motion for abatement of child support. We disagree.

       Under Indiana law, a child support obligation can only be abated back to the

       date the motion to abate was filed and not an earlier date. Id. The trial court

       correctly found that Smith’s motion for abatement could not be abated

       retroactively to the date of his incarceration and that the original order granting

       abatement as of the filing date for the motion, June 29, 2015, was already being

       enforced. We, therefore, affirm the trial court’s order.


[12]   Affirmed.


       Bailey, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 59A05-1704-DR-988 | February 28, 2018   Page 6 of 6
