Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
                                                            FILED
                                                          Feb 23 2012, 8:52 am
of establishing the defense of res
judicata, collateral estoppel, or the law                        CLERK
of the case.                                                   of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

CARL W. BUTLER                                  GREGORY F. ZOELLER
MAGGIE L. SMITH                                 Attorney General of Indiana
Frost Brown Todd LLC
Indianapolis, Indiana                           ELIZABETH ROGERS
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JEFFREY ROSER,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )    No. 38A02-1106-DR-502
                                                )
JENNIFER ROSER,                                 )
                                                )
       Appellee-Plaintiff.                      )


                        APPEAL FROM THE JAY SUPERIOR COURT
                           The Honorable Max C. Ludy, Jr., Judge
                               Cause No. 38D01-0410-DR-27




                                     February 23, 2012



               MEMORANDOM DECISION – NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issue

       After the dissolution of Jeffery (“Father”) and Jennifer (“Mother”) Rosers’

marriage, Father began paying child support. At a May 2011 hearing, Father requested a

modification of his child support obligation because he had recently been incarcerated on

charges unrelated to his child support obligation and faced a sentence of up to fifteen

years. The trial court granted his request for modification and lowered his weekly child

support obligation to $25. Father raises one issue for our review, which we restate as

whether the trial court’s modified child support obligation is in error because it is not

based on Father’s available income and assets. Concluding the trial court was correct to

lower Father’s obligation to the minimum support obligation, but that the minimum

support obligation for two children is now $18.00, we remand to the trial court to revise

Father’s child support obligation to $18.00.

                              Facts and Procedural History

       Mother petitioned for dissolution of her marriage with Father in 2004, and a

divorce decree was entered in August 2005. The trial court awarded Mother sole custody

of two children born of the marriage and ordered Father to pay child support. In January

2011, Father filed a petition to modify child support, asking the trial court to review his

ability to comply with his $72 per week child support obligation in light of his

incarceration on charges unrelated to child support payment.

       In May 2011, the trial court conducted a hearing. Father explained that he was

incarcerated and faced a potential fifteen-year sentence, and he requested a modification

of his child support obligation under Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007),


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because his income and assets were insufficient to allow him to comply with his child

support obligation. After Father raised his argument, the trial court stated:

        Mr. Roser [sic] there’s some, I don’t know whether I’d call it
        misunderstanding or some general discussions that take place in the jails
        and prisons about the Lambert decision, and a lot of the individuals and
        some in there believe that that means that they don’t have to pay any
        support while they are incarcerated. I don’t read Lambert, [sic] to say that.
        What I read it to say is that it needs to be a minimal amount which doesn’t
        create a large ongoing arrearage while you are incarcerated. As I said, a lot
        of people argue that that means $0.00. I don’t believe that is the holding in
        the Lambert case . . . . So what the court is going to do is reduce your
        support . . . to $25.00 per week.

Transcript at 7. The trial court also had the following exchange with the State:

        The Court: I’m assuming he is not paying his support?
        [The State]: No. Well there has been a little paid earlier in the year, but
        nothing lately. No.
        The Court: If he is in jail for the next seven (7) years, I don’t imagine you
        expect anything to be paid?
        [The State]: Correct.

Id. at 8. Father now appeals.1

                                        Discussion and Decision

                                         I. Standard of Review

        The trial court is vested with broad discretion in making child support

determinations. Carter v. Dayhuff, 829 N.E.2d 560, 569 (Ind. Ct. App. 2005). Child

support orders may be modified “upon a showing of changed circumstances so

substantial and continuing as to make the terms unreasonable” or upon a showing that “a

party has been ordered to pay an amount in child support that differs by more than twenty


        1
           Subsequent to the filing of his appellate brief, Father filed a motion for leave to amend his brief,
stating his desire to remove a phrase from the brief. We hereby grant Father’s motion and have redacted
the line from Father’s Statement of the Case.

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percent (20%) from the amount that would be ordered by applying the child support

guidelines” and that “the order requested to be modified or revoked was issued at least

twelve (12) months before the petition requesting modification was filed.” Ind. Code §

31-16-8-1(b). The petitioner bears the burden of proof, and we will reverse a trial court’s

grant or denial of a request for modification of child support only where it is clearly

against the logic and effect of the facts and circumstances before the court. Carter, 829

N.E.2d at 569-70. We do not reweigh the evidence or judge the credibility of the

witnesses upon review; rather, we consider only the evidence most favorable to the

judgment and the reasonable inferences to be drawn therefrom. Id. at 570. However,

questions of law are reviewed de novo. See Bellows v. Bd. of Comm’rs of Cnty. of

Elkhart, 926 N.E.2d 96, 111 (Ind. Ct. App. 2010).

                          II. Father’s Child Support Obligation

       Father argues our supreme court’s decisions in Lambert and Clark v. Clark, 902

N.E.2d 813 (Ind. 2009), require a trial court to calculate the child support obligation of an

imprisoned parent based on the actual income and assets available to the parent. He

argues the trial court abused its discretion when it modified his obligation to $25 per

week because it did not base this amount on his actual income and assets.

       In Lambert, the father was ordered to pay $277 per week in child support as part

of a provisional agreement. 861 N.E.2d at 1176-77. Prior to the final hearing on the

dissolution, the father was sentenced to a period of incarceration for convictions

unrelated to child support payment. Id. at 1177. Despite his incarceration, the trial court

ordered as part of the decree of dissolution that he continue to pay the $277 per week in


                                             4
support, concluding his incarceration resulted from his own voluntary actions and thus it

was proper to continue his child support obligation despite his incarceration. Id. Our

supreme court disagreed, holding:

       [I]ncarceration does not relieve parents of their child support obligations.
       On the other hand, in determining support orders, courts should not impute
       potential income to an imprisoned parent based on pre-incarceration wages
       or other employment-related income, but should rather calculate support
       based on the actual income and assets available to the parent.

Id. In Clark, our supreme court extended the holding of Lambert to apply to petitions to

modify a child support obligation based on the incarceration of an obligated parent. 902

N.E.2d at 815.

       In its discussion in Lambert, our supreme court laid out the approaches taken by

other states regarding the calculation of an incarcerated parent’s child support obligation.

861 N.E.2d at 1177-79.       Some states follow an absolute justification rule, where

imprisonment absolutely justifies modifying or suspending child support. Id. at 1177-78.

Others conclude it is appropriate to impute pre-incarceration income to the non-custodial

parent, likening criminal conduct to voluntary unemployment, which is not typically a

basis for modification of a child support obligation. Id. at 1178. Last, at least one state,

Nebraska, disallowed the imputation of pre-incarceration income for an incarcerated non-

custodial parent’s child support modification determination because the parent usually

does not have the earning capacity to comply with such a child support obligation. Id. at

1178-79 (citing State v. Porter, 610 N.W.2d 23 (Neb. 2000)). Instead, Nebraska imposed

the minimum child support obligation as provided for in the state’s guidelines, but it also

noted that because income does not consist solely of wages, the possibility of higher


                                             5
support obligations should be left open. Id. at 1179.

       In examining the different approaches, the court in Lambert contrasted voluntary

unemployment with incarceration, stating “[t]he choice to commit a crime is so far

removed from the decision to avoid child support obligations that it is inappropriate to

consider [voluntary unemployment and incarceration] as identical.” Id. at 1180. In

addition to this distinction, the court discussed the best interests of children in child

support cases and noted that the child support system is meant to serve an economic

purpose, not a punitive one. Id. The court cited sociological research findings that the

existence of large support orders, especially large arrearages, leads to more non-custodial

parents failing to meet their support obligations.      Id.   Further, the court cited data

revealing that because wages are often garnished in an effort to collect child support

payments, allowing arrearages to grow while a parent is incarcerated discourages

employment after release. Id. at 1181.

       The ultimate lesson to be drawn from this research is that when high
       support orders continue through a period of incarceration and thus build
       arrearages, the response by the obligor is to find more methods of avoiding
       payment. To the extent that an order fails to take into account the real
       financial capacity of a jailed parent, the system fails the child by making it
       statistically more likely that the child will be deprived of adequate support
       over the long term.

Id.

       Our supreme court ultimately adopted Nebraska’s approach. Id. The supreme

court stated, “[u]nlike the absolute justification rule, the non-imputation approach allows

courts to comply with the Guidelines by imposing at least the minimal support order as

provided by Ind. Child Support Guideline 2.” Id. at 1181. At the time Lambert was


                                             6
decided, Guideline 2 provided: “For obligors with a combined weekly adjusted income,

as defined by these Guidelines, of less than $100.00, the Guidelines provide for case-by-

case determination of child support, normally within a range of $25.00-$50.00 weekly.”

Ind. Child Support Guideline 2 (2007). Thus, a minimum child support obligation was

set at $25.00. Now, however, Guideline 2 provides:

      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. The court may consider $12.00 as a minimum
      child support order; however, there are situations where a $0.00 support
      order is appropriate.

      Thus, pursuant to Lambert, the minimum child support obligation for one child is

now $12.00. For parents with child support obligations for more than one child, a

schedule is included with the Indiana Child Support Guidelines.         Pursuant to the

schedule, the minimum obligation for two children is $18.00.       While there may be

circumstances where an obligor’s obligation should be ordered below the minimum

amount provided in Guideline 2 and the adjoining schedule, Father already had an

opportunity to present evidence to that effect and did not do so. Further, Guideline 2 is

clear that an obligor’s means to support himself is important in determining a child

support obligation. This point is important in this circumstance because an incarcerated

parent need not worry about self-support.

      Father argues the trial court abused its discretion by modifying his support

obligation to $25.00 per week without basing the amount on his actual income or assets.

We agree, but only as to the amount. Because Father did not show that the minimum

child support obligation is inappropriate, his obligation should be reduced to $18.00. We

                                            7
also note that in Lambert the supreme court concluded that an incarcerated obligor’s child

support obligation should be based on his or her available income and assets in part

because it is possible he or she has assets or income exclusive of wages that could

provide a means of fulfilling a support obligation. 861 N.E.2d at 1181-82. Such assets or

income could necessitate a child support obligation substantially greater than the

minimum child support obligation, even for an incarcerated obligor. However, here the

State and Mother already had an opportunity to present evidence to that effect at the

hearing on Father’s petition to modify his support obligation and did not do so.

Therefore, Father’s child support obligation should be revised to $18.00.

                                         Conclusion

       Pursuant to Guideline 2, Father’s modified child support obligation should have

been reduced to $18.00. Neither party presented evidence that would deviate Father’s

child support obligation from the minimum support obligation. Thus, we remand to the

trial court to revise Father’s child support obligation consistent with this opinion.

       Remanded.

NAJAM, J., and VAIDIK, J., concur.




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