                                                                               Dec 10 2015, 8:39 am




      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Gregory F. Zoeller                                        David W. Stone IV
      Attorney General of Indiana                               Anderson, Indiana
      Kristin Garn
      Frances Barrow
      Deputy Attorneys General
      Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                         December 10, 2015

      Appellant-Intervenor,                                     Court of Appeals Case No.
                                                                48A02-1504-PL-207
              v.                                                Appeal from the Madison Circuit
                                                                Court.
                                                                The Honorable Thomas L. Clem,
      Anthony Gaw,                                              Judge.
      Appellee-Petitioner.                                      Cause No. 48C05-1404-PL-36




      Shepard, Senior Judge

[1]   On behalf of the Madison County Title IV-D Prosecutor, the State of Indiana

      appeals an order of Madison Circuit Court 5 granting Anthony Gaw relief from

      a child support decision entered by Madison Circuit Court 2.


[2]   Indiana has created avenues by which inmates may seek to revisit issues like

      child support, but collateral attack is not one of them. We reverse.

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                                                      Issue
[3]   The State presents two issues for our review, one of which is dispositive: was

      Madison Circuit Court 5 without jurisdiction under Indiana Trial Rule 60(B)(8)

      to enter its order granting Gaw’s request for modification of child support?


                                Facts and Procedural History
[4]   On November 22, 1988, Gaw was sentenced to thirty years in the Department

      of Correction for Class A felony arson, with ten years executed and twenty

      years suspended to probation. After serving the executed portion, he was

      released to probation. Gaw’s probation was revoked on August 17, 1998, and

      he was returned to prison to serve the remainder of his sentence. Gaw

      remained incarcerated until May 1, 2009.


[5]   Meanwhile, Gaw’s wife Cathy filed a petition for dissolution of marriage in

      Madison Circuit Court 2 on July 27, 1998, and a support order was entered.

      On April 19, 2001, Gaw, pro se, filed a motion to reduce or abate his support

      obligation during his incarceration. Madison Circuit Court 2 denied that

      motion on April 27, 2001.


[6]   On August 6, 2008, the State by the IV-D Prosecutor was allowed to intervene

      in the ongoing collection process. Because the amount of child support

      arrearage exceeded $15,000, the matter ultimately was referred for criminal

      proceedings against Gaw for failure to pay. See Appellant’s Appendix p. 4; Ind.

      Code § 35-46-1-5(a) (2001).



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[7]    On April 4, 2014, Gaw filed a motion to set aside judgment under Indiana Trial

       Rule 60(B)(8) in Madison Circuit Court 5, seeking to undo the Madison Circuit

       Court 2’s order of 2001 denying his petition to reduce or abate his support

       obligation during his incarceration. Counsel for Cathy opposed the motion,

       and the State was allowed to intervene in Court 5 on February 5, 2015.


[8]    After a hearing, Court 5 granted Gaw’s request and abated the child support

       arrearage calculations for the period of April 19, 2001 through May 1, 2009,

       during which time Gaw was incarcerated. It then entered an order reflecting a

       new calculation for Gaw’s arrearage.


                                     Discussion and Decision
                       I. Does the State have Standing to Appeal?
[9]    We begin with an issue Gaw has raised as a cross-appeal. He says that the

       State lacks standing here because it has suffered no harm through Court 5’s

       reduction of Gaw’s arrearage.


[10]   Gaw notes that 42 U.S.C.A. § 657(a)(2)(B)(i) directs that if a family has

       formerly received assistance from the State, and if the amount of child support

       arrearage collected exceeds the current support amount, payment shall be made

       first to the family unless the family made an assignment to the State under 42

       U.S.C.A. § 608(a)(3) in order to receive assistance. Cathy made such an

       assignment. In sum, Gaw claims that even with the reduction to the amount of

       child support arrearage, the State will be paid first and in full. Gaw further

       argues that since the State will suffer no harm and Cathy has not perfected an

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       appeal from Court 5’s order, nor is she represented on appeal by the State, the

       State cannot complain of an error suffered by another party.


[11]   Trial Rule 24 provides for both intervention as of right and intervention by

       permission. The trial court hearing the dissolution and the court hearing the

       independent action each granted the State’s motions to intervene. Where a

       party is allowed to intervene, that party may appeal a decision adverse to its

       interests even if the original parties forego pursuing an appeal. Hoosier Outdoor

       Adver. Corp. v. RBL Mgmt, Inc., 844 N.E.2d 157 (Ind. Ct. App. 2006), trans.

       denied. The intervenor may appeal from subsequent orders in the action and is

       treated as if it were an original party with equal standing. Id. Indiana’s practice

       is consistent with that of other jurisdictions. See 7C Charles Alan Wright,

       Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d §

       1923 (1986).


[12]   Court 5 abated Gaw’s child support obligation from 2001 to 2009. The State

       was thus prevented from receiving support to which it had been assigned for

       that period. Ind. Code § 12-14-7-1 (1992). Further, the State is allowed to

       enforce child support orders even when the custodial parent no longer receives

       public assistance. 42 U.S.C.A. § 654 (25). Because the order is adverse to the

       State, a properly recognized intervenor, the State has standing to appeal.




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               II. Did Madison Circuit Court 5 Have Jurisdiction?
[13]   The State argued at its earliest opportunity that Court 5 did not have

       jurisdiction to grant Gaw’s 60(B)(8) motion and makes that same argument on
                                                    1
       appeal. Appellant’s App. p. 118. We agree.


[14]   The Madison Circuit Court is a unified court of general jurisdiction comprised

       of six divisions in which various dockets are maintained. Ind. Code § 33-33-48-

       12 (2011). By local rule, civil dockets may be maintained in each of the six

       divisions. LR48-AR00-05 (2012). However, Madison County’s caseload plan

       provides that Madison Circuit Court 5 is not initially allocated any of the

       dissolution proceedings, although transfers to that specific division are not

       prohibited. LR48-AR00-07.


[15]   Gaw sought relief via Trial Rule 60(B)(8) from Court 2’s denial of his petition

       for modification of support. He did so by filing what he called an “independent

       action” in Court 5. Case law has established, nonetheless, that actions brought

       under 60(B)(8) must be filed in the court which issued the judgment or order.

       Kiskowski v. O’Hara, 622 N.E.2d 991, 993 (Ind. Ct. App. 1993), trans. denied.

       Furthermore, it is axiomatic that “a court that issues a dissolution decree retains

       exclusive and continuing responsibility for any future modifications and related

       matters concerning the care, custody, control, and support of any minor




       1
        The State also argued to Court 5 that the issue of child support modification for that period alleged was
       barred by res judicata, as the issue had been decided adversely to Gaw by Court 2.

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       children.” Fackler v. Powell, 839 N.E.2d 165, 167 (Ind. 2005) (citing State ex rel.

       Werthman v. Superior Ct. of Marion County, 448 N.E.2d 680, 683 (Ind. 1983)).

       This is so because various policy reasons reaffirm that the original dissolution

       court is in the best position to conduct the necessary factual determinations

       involved. Id.


[16]   In State ex rel. Meade v. Marshall Superior Court II, 644 N.E.2d 87 (Ind. 1994), our

       Supreme Court made clear that efforts to circumvent decisions of the

       dissolution court are disfavored absent extraordinary circumstances such as an

       emergency. In that case, after the marriage was dissolved and child custody

       was determined, a former wife went to another court in that same county,

       seeking a protective order that would have effectively modified the terms of

       visitation contained in the dissolution decree entered by the original court. The

       Supreme Court held that “where no emergency situation exists, as it did not in

       this case, the court where the divorce, custody, and visitation matters were

       heard retains continuing jurisdiction over the case.” Id. at 90. Similarly, here,

       Gaw has attempted to “avoid the regular procedure” by seeking relief in a

       different division of Madison Circuit Court when the matter had previously

       been decided against him in another division having continuing jurisdiction. Id.


[17]   Because Court 5 lacked authority to hear Gaw’s request, we need not resolve

       the appropriateness of its decision. However, we note that Indiana case law has

       recognized an accommodation for prisoners in the interest of promoting their

       rehabilitation. In Lambert v. Lambert, 861 N.E.2d 1176, 1176 (Ind. 2007), the

       Supreme Court declared that while our child support guidelines obligate every

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       parent to provide some support to their children even if they have no apparent

       present income, a trial court errs by setting the initial support amount on

       employment income that will not exist during a parent’s incarceration.


[18]   Of course, this accommodation must yield to the longstanding rule that a court

       may not retroactively modify child support obligations that have accrued.

       Whited v. Whited, 859 N.E.2d 657, 661 (Ind. 2007); Corbridge v. Corbridge, 230

       Ind. 201, 206, 102 N.E.2d 764, 767 (1952). In a pair of decisions issued on the

       same day, the Supreme Court explicitly stated that while incarceration may

       constitute a substantial change in circumstances warranting a modification of

       an existing child support obligation, such modification may not take effect on a

       date earlier than the date on which the petition to modify the child support

       obligation is filed. Clark v. Clark, 902 N.E.2d 813, 814 (Ind. 2009); Becker v.

       Becker, 902 N.E.2d 818, 819 (Ind. 2009).


                                                 Conclusion
[19]   In light of the foregoing, we conclude that Madison Circuit Court 5 was

       without jurisdiction to grant Gaw the relief he sought.


[20]   Reversed.


[21]   Baker, J., and Brown, J., concur.




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