MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                May 29 2019, 9:07 am

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.


ATTORNEYS FOR APPELLANT
Curtis T. Hill, Jr.
Attorney General of Indiana

Frances Barrow
Deputy Attorney General
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana, as Assignee of                        May 29, 2019
the Support Rights of                                   Court of Appeals Case No.
                                                        18A-DR-2266
William McRoberts,
                                                        Appeal from the Montgomery
Appellant-Petitioner/Assignor,                          Superior Court
        v.                                              The Honorable Heather Barajas,
                                                        Judge
Ruthanna (Thompson)                                     Trial Court Cause No.
McRoberts,                                              54D01-0402-DR-55

Appellee-Respondent



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-2266 | May 29, 2019                      Page 1 of 6
[1]   The State of Indiana, as assignee of the support rights of William McRoberts,

      appeals the grant of Ruthanna (Thompson) McRoberts’ petition for her child

      support obligation to be retroactively abated between January 4, 2018, and

      April 27, 2018. We reverse and remand.



                            Facts and Procedural History
[2]   Ruthanna (Thompson) McRoberts (“Mother”) and William McRoberts

      (“Father”) were married, and their marriage produced two children. In July

      2006, the trial court dissolved their marriage and ordered Mother to pay child

      support. In the years after dissolution, Mother accumulated a significant

      arrearage. The trial court repeatedly found Mother in contempt for failure to

      pay support and modified Mother’s support obligation numerous times.


[3]   On March 1, 2017, a contracted public defender, Justin Froedge, entered his

      appearance for Mother in the divorce action. Thereafter, the Montgomery

      County public defender system changed from using private attorneys under

      contract to hiring full-time public defenders. As a result, on January 2, 2018,

      Froedge moved to withdraw his appearance in the divorce action, and the trial

      court granted his motion on January 3, 2018. Mother was not notified of

      Froedge’s withdrawal of appearance, nor was she appointed a new public

      defender for the divorce case.


[4]   Meanwhile, on November 28, 2017, the State charged Mother with nonsupport

      of a dependent child as a Level 6 felony in case number 54D01-1711-F6-


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2266 | May 29, 2019   Page 2 of 6
      003121. On January 4, 2018, Mother was arrested on that charge and confined

      in the Montgomery County Jail. Shortly thereafter, the court appointed Jacob

      Moore, a public defender, to represent Mother in the felony case. Mother

      began working through a work release program on April 15, 2018, and she

      received her first paycheck on April 27, 2018. On May 18, 2018, Mother pled

      guilty to nonsupport of a dependent child, and the court sentenced her to 545

      days to be served in work release.


[5]   In late May 2018 public defender Johnathon Holley was appointed to represent

      Mother in the divorce action. On July 26, 2018, Mother moved for the trial

      court to retroactively eliminate her support obligation from January 4, 2018, to

      April 27, 2018, the time period Mother was incarcerated but not receiving

      paychecks from the work release program. The State objected to Mother’s

      petition and filed a response in opposition with supporting memorandum.


[6]   The court conducted a hearing on Mother’s petition on August 22, 2018. At

      the hearing, the State noted Mother had not contacted the child support office

      to request an abatement of her support obligation between the date she was

      arrested and the date of her petition. The trial court granted Mother’s petition.

      The court acknowledged the law did not favor Mother, but the court chose to

      follow equity and “not hold [Mother] accountable for her lack of counsel when

      she didn’t even know she wasn’t represented.” (Tr. at 37.)



                                Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2266 | May 29, 2019   Page 3 of 6
[7]   Mother, the Appellee-Respondent, has failed to file an appellate brief.

      Consequently, we will not develop an argument for her. State v. Miracle, 75

      N.E.3d 1106, 1108 (Ind. Ct. App. 2017). In such situations, we apply a less

      stringent standard of review and will reverse upon a showing of prima facie

      error. Id. However, Mother’s failure to file a brief does not relieve us of our

      obligation to correctly apply the law to the facts in the record when determining

      if reversal is necessary. Id.


[8]   We review a trial court’s decision to modify a parent’s child support obligation

      for an abuse of discretion. Hooker v. Hooker, 15 N.E.3d 1103, 1105 (Ind. Ct.

      App. 2014). “An abuse of discretion occurs when the decision is clearly against

      the logic and effect of the facts and circumstances before the court, including

      any reasonable inferences therefrom.” Id.


[9]   Indiana case law has long prohibited the retroactive reduction or elimination of

      child support obligations once those obligations have accrued. Whited v.

      Whited, 859 N.E.2d 657, 661 (Ind. 2007). Further, retroactive modifications of

      child support obligations have been statutorily prohibited since at least 1987.

      Id.; see also Ind. Code § 31-16-16-6. This is a “bright-line rule” subject to two

      narrow exceptions. Whited, 859 N.E.2d at 661-62. Those exceptions are 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

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2266 | May 29, 2019   Page 4 of 6
               control for such a period of time that a permanent change of
               custody is exercised.


       Id. at 662. Neither of the two exceptions identified in the Whited case are

       applicable here. The parents did not make some sort of alternative payment

       arrangement while Mother was incarcerated, nor did Mother take custody of

       the children. She simply did not pay support because she was in jail.



[10]   Our Indiana Supreme Court has recognized that incarceration may significantly

       diminish the income and assets available to a parent to pay child support.

       Lambert v. Lambert, 861 N.E.2d 1176, 1177 (Ind. 2007). Nevertheless,

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

       For example, in Becker v. Becker, an incarcerated former husband moved to have

       his child support obligation abated during the period of his incarceration, and

       the trial court retroactively reduced the husband’s child support obligation. 902

       N.E.2d 818, 819 (Ind. 2009). On review, our Indiana Supreme Court reversed

       the trial court and held 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.” Id. at 821. We are bound by

       Indiana Supreme Court precedent until it is changed either by that court or by

       legislative enactment. Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App.

       2005). Consequently, the trial court did not have discretion to retroactively

       abate Mother’s child support obligation, even if a changeover in the

       Montgomery County public defender system was to blame for Mother’s failure

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2266 | May 29, 2019   Page 5 of 6
       to timely petition for modification of the support order. See Strowmatt v.

       Rodriguez, 897 N.E.2d 500, 503 (Ind. Ct. App. 2008) (“As there was no

       abatement order or modification of Strowmatt’s child support obligation, it

       continued during his incarceration and accrued until his son’s emancipation on

       December 10, 2005.”).



                                               Conclusion
[11]   We conclude the trial court abused its discretion when it retroactively abated

       Mother’s child support obligation from January 4, 2018, to April 27, 2018

       because Indiana recognizes a bright line rule against retroactively modifying an

       arrearage once it has accrued and the exceptions to this bright line rule are not

       applicable here. Accordingly, we must reverse and remand for the trial court to

       recalculate Mother’s arrearage.


[12]   Reversed and remanded.


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2266 | May 29, 2019   Page 6 of 6
