MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                               Sep 21 2015, 9:32 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
Constantine D. Mills, Jr.                                 Gregory F. Zoeller
Michigan City, Indiana                                    Attorney General of Indiana

                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Constantine D. Mills, Jr.,                               September 21, 2015
Appellant,                                               Court of Appeals Case No.
                                                         90A05-1504-JP-176
        v.                                               Appeal from the Wells Circuit
                                                         Court
Brandy Fisher,                                           The Honorable Kenton W.
Appellee.                                                Kiracofe, Judge
                                                         Trial Court Cause No.
                                                         90C01-0604-JP-18



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 90A05-1504-JP-176| September 21, 2015   Page 1 of 8
[1]   Constantine D. Mills, Jr., pro se, appeals the trial court’s order modifying his

      support obligation to a total of $42 per week.1 Mills raises one issue which we

      revise and restate as whether the court abused its discretion in entering the

      support order. We reverse and remand.


                                            Facts and Procedural History

[2]   On September 15, 2014, Mills filed a Verified Petition to Lower Child Support

      Obligation. On March 26, 2015, the court held a hearing on the petition at

      which Mills appeared pro se by telephone.


[3]   Mills testified that he was incarcerated, serving a fifty-year sentence for child

      molesting, was unable to make his support payments, that he was currently

      attending a two-year college program, and that he received the maximum $22

      per month for that program. He stated he could not work and be in the

      program at the same time, and that he did not have any retirement account,

      inheritance, or any other source of income. He stated that he was responsible

      for his hygiene and that “alone is almost half of [his] pay through the month.”

      Id. at 9. Mills said that he believed he was initially ordered to pay $38 per week

      plus $7 per week towards his arrearage.


[4]   L.M.’s mother testified that L.M. has special needs, and when asked if she

      could estimate her expenses on a monthly basis not covered by insurance, she




      1
          The State represents the interests of the State as L.M.’s mother is a Title IV-D recipient.


      Court of Appeals of Indiana | Memorandum Decision 90A05-1504-JP-176| September 21, 2015           Page 2 of 8
      said that she paid approximately $500 per year. She also testified she earned

      approximately $500 per week. Mills asked L.M.’s mother if she still received

      SSI benefits to help with L.M.’s financial needs, and she replied that she

      received $773 monthly.


[5]   In closing, Mills testified that “being incarcerated limits the amounts of money

      [he] can come up with,” that he “would ask the Court that they would take into

      consideration the amount [he was] getting paid and come up with something

      reasonable within the parameters of law that [he] can actually afford,” and that

      he was “asking not to be put in a position to where [he is] getting even further

      behind.” Id. at 14-15. Counsel for L.M.’s mother stated “all we’re asking is

      there is still be something that is applied” and that “[w]e realize it might be low

      but we don’t think zero would be an appropriate support amount in this case.”

      Id. at 16.


[6]   The trial court stated that it was going to order support of $12 per week. The

      court entered an order of Income Withholding for Support, ordering that Mills

      pay $12 per week in current child support plus $30 per week toward his

      arrearage, for a total support obligation of $42 per week.


                                                   Discussion

[7]   The issue is whether the trial court abused its discretion in entering the support

      order. In reviewing a trial court’s decision regarding the modification of child

      support, we reverse only 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


      Court of Appeals of Indiana | Memorandum Decision 90A05-1504-JP-176| September 21, 2015   Page 3 of 8
       decision is clearly against the logic and effect of the facts and circumstances

       before the court, including any reasonable inferences therefrom. Id. Whether

       the standard of review is phrased as “abuse of discretion” or “clear error,” the

       importance of first-person observation and preventing disruption to the family

       setting justifies deference to the trial court. Id.


[8]    Mills argues that he expects to receive $22 per month and that the support

       amount ordered by the court is unattainable. He requests that the court stop his

       current support order so he does not fall further behind.


[9]    The State agrees that the court’s support obligation must be based on Mills’s

       actual earnings, and acknowledges that, “[u]nder these circumstances, he could

       not possibly pay the $12 per week current support or $30 per week towards his

       arrearage that the trial court ordered.” Appellee’s Brief at 5. The State requests

       that this court remand to the trial court to determine the amount of current

       support and arrearage payments that are consistent with Mills’s current income.


[10]   While Mills is incarcerated, he has a duty to provide support for his dependent

       children. See Hooker, 15 N.E.3d at 1105. In evaluating Mills’s circumstances,

       the trial court remained obligated under the Child Support Guidelines to

       consider all sources of income or other property when calculating support

       payments upon modification. Id. (citing Clark v. Clark, 902 N.E.2d 813, 817

       (Ind. 2009)). In Clark, the Indiana Supreme Court held that the support

       obligation of an incarcerated person should be set based on the parent’s actual




       Court of Appeals of Indiana | Memorandum Decision 90A05-1504-JP-176| September 21, 2015   Page 4 of 8
       earnings while incarcerated and other assets available to the incarcerated

       person. Clark, 902 N.E.2d at 817.


[11]   Ind. Child Support Guideline 2 provides in part that “[w]hen a parent has

       extremely low income the amount of child support recommended by use of the

       Guidelines should be carefully scrutinized,” that the court “should consider the

       obligor’s income and living expenses to determine the maximum amount of

       child support that can reasonably be ordered without denying the obligor the

       means for self-support at a minimum subsistence level,” and that “[t]he court

       may consider $12.00 as a minimum child support order; however, there are

       situations where a $0.00 support order is appropriate.” The Commentary to

       Ind. Child Support Guideline 2 provides in part that “the Guidelines do not

       establish a minimum support obligation. Instead, the facts of each individual

       case must be examined and support set in such a manner that the obligor is not

       denied a means of self-support at a subsistence level.” The commentary further

       provides, for example, that the fact a parent is incarcerated is a significant factor

       to consider in setting a child support order.


[12]   Although the evidence at the modification hearing established that Mills

       received $22 per month for his participation in a college program, the trial court

       nevertheless set his total child support obligation at $42 per week. Leaving this

       support order undisturbed would likely burden Mills with a high arrearage upon

       his release from prison. Additionally, the ordered amount does not reflect the

       present earning capacity of Mills as contemplated by the Ind. Child Support

       Guidelines.

       Court of Appeals of Indiana | Memorandum Decision 90A05-1504-JP-176| September 21, 2015   Page 5 of 8
[13]   Accordingly, we reverse the trial court’s order setting Mills’s child support

       obligation at $42 per week and remand with instructions for the court to

       determine a current support amount and amount to be paid toward his

       arrearage based upon Mills’s actual earnings while incarcerated. See Clark, 902

       N.E.2d at 817-818 (observing that the trial court set Clark’s child support

       obligation at $53 per week while he received less than $21 per month at his

       prison job assignment, that this support order left undisturbed would likely

       burden Clark with a high arrearage upon his release from prison, and that

       denial of his petition would thwart the goal of having child support obligations

       reflect the present earning capacity of parents, and reversing the support order

       and remanding with instructions that the trial court consider Clark’s other

       income sources).


                                                   Conclusion

[14]   For the foregoing reasons, we reverse the trial court’s order and remand for a

       revised modification order consistent with this opinion.


[15]   Reversed and remanded.


       Altice, J., concurs.

       Riley, J., concurs in part and dissents in part with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 90A05-1504-JP-176| September 21, 2015   Page 6 of 8
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Constantine D. Mills, Jr.,                               Court of Appeals Case No.
                                                                90A05-1504-JP-176
       Appellant,

               v.

       Brandy Fisher,
       Appellee.




       Riley, Judge concurring in part and dissenting in part.


[16]   While I concur with the majority’s decision to reverse the trial court’s

       imposition of Mills’ support order and arrearage, I respectfully dissent from the

       decision to remand this case to the trial court to determine “a current support

       order and amount to be paid toward his arrearage based upon Mills’ actual

       earnings while incarcerated.” (Slip op. p. 6).
       Court of Appeals of Indiana | Memorandum Decision 90A05-1504-JP-176| September 21, 2015   Page 7 of 8
[17]   Initially, I would like to commend the State and mother’s counsel for

       recognizing that “even though Mills has an abiding duty to provide support” for

       his dependent child, his support obligation should be “based on the obligated

       parent’s actual earnings while incarcerated.” (See Clark v. Clark, 902 N.E.2d

       813, 817 (Ind. 2009); Hooker v. Hooker, 15 N.E.3d 1103, 1105 (Ind. Ct. App.

       2014)). Here, all parties are in agreement that Mills’ current monthly income

       amounts to $22, with Mills testifying that his expenses for hygiene are “almost

       half of [his] pay through the month.” (Tr. p. 9). “[U]nsustainable support

       orders result in greater failure of non-custodial parents to pay their support

       obligations, making it ‘statistically more likely that the child will be deprived of

       adequate support over the long term.’” Clark, 902 N.E.2d at 817 (citing Lambert

       v. Lambert, 861 N.E.2d 1176, 1180-81 (Ind. 2007)). Accordingly, I would retain

       Mills’ current monthly child support order of $12, without imposing any further

       payments toward his arrearage until further order of the court.




       Court of Appeals of Indiana | Memorandum Decision 90A05-1504-JP-176| September 21, 2015   Page 8 of 8
