MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           FILED
regarded as precedent or cited before any                   Mar 29 2017, 9:56 am
court except for the purpose of establishing
                                                                CLERK
the defense of res judicata, collateral                     Indiana Supreme Court
                                                               Court of Appeals
estoppel, or the law of the case.                                and Tax Court




APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Gary R. Anderson                                        Curtis T. Hill, Jr.
New Castle, Indiana                                     Attorney General

                                                        Frances Barrow
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Gary R. Anderson,                                       March 29, 2017
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        02A03-1606-DR-1533
        v.                                              Appeal from the Allen Circuit
                                                        Court
Jamie R. Anderson,                                      The Honorable Thomas J. Felts,
Appellee-Petitioner                                     Judge
                                                        The Honorable Andrea Trevino,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        02C01-0801-DR-35



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1606-DR-1533| March 29, 2017   Page 1 of 8
                                          Case Summary
[1]   Gary Anderson, who is incarcerated for molesting two of his children, filed

      motions to modify his $141 per week child-support obligation in 2013, 2014,

      and 2016, arguing that his incarceration was a changed circumstance so

      substantial and continuing as to make the terms of his prior support order

      unreasonable. The trial court denied his motion each time; Gary appealed only

      following the last order. The State concedes that the trial court erred in denying

      Gary’s first motion; nevertheless, the State claims that Gary is not entitled to

      relief because this appeal is really a belated attempt to appeal the trial court’s

      first order.

[2]   We agree with the State that Gary is essentially appealing the trial court’s first

      order. But an untimely notice of appeal does not divest a reviewing court of

      jurisdiction. Given the State’s concession that the trial court erred and our

      preference for deciding cases on the merits, we choose to exercise our discretion

      and reach the merits in this case. And based on the State’s concession, we

      reverse and remand this case to the trial court with instructions to set Gary’s

      child support based on his actual earnings while incarcerated.



                            Facts and Procedural History
[3]   During the marriage of Gary and Jamie Anderson, they had three daughters:

      I.A., O.A., and Z.A. Jamie filed for divorce in 2008, which was finalized that




      Court of Appeals of Indiana | Memorandum Decision 02A03-1606-DR-1533| March 29, 2017   Page 2 of 8
      September. In the decree of dissolution, the Allen Circuit Court ordered Gary

      to pay $141 per week in child support.

[4]   Gary got remarried in 2009 to Carissa Anderson, and they had two sons.


[5]   In July 2013, the State charged Gary with multiple counts of molesting his

      daughters. He pled guilty in August of that year to two counts of Class B felony

      child molesting (related to I.A. and O.A.) and was sentenced in September to

      twenty years in the Department of Correction with eight years suspended. His

      projected release date is August 20, 2021.

[6]   Around the same time that Gary was charged with child molesting, Carissa

      filed for divorce, which was finalized in November 2013. In the decree of

      dissolution, the Allen Circuit Court did not order Gary to pay any child support

      for his sons “[d]ue to [his] incarceration.” Appellant’s App. Vol. II p. 66.

[7]   Shortly after being sent to prison, on November 14, 2013, Gary filed a pro se

      motion to modify his child support for I.A., O.A., and Z.A. pursuant to Indiana

      Code section 31-16-8-1. He argued that his incarceration presented a

      “substantial change in circumstances justifying modification of his child support

      obligation,” which had been set in 2008. Id. at 25-26. In support, Gary cited

      Clark v. Clark, in which the Indiana Supreme Court held that incarceration

      generally constitutes a substantial change in circumstances warranting

      modification:

              In light of our analysis in Lambert [v. Lambert, 861 N.E.2d 1176
              (Ind. 2007)], we hold that in petitions to modify a support order,

      Court of Appeals of Indiana | Memorandum Decision 02A03-1606-DR-1533| March 29, 2017   Page 3 of 8
        incarceration may serve as a changed circumstance so substantial
        and continuing as to make the terms of the support order
        unreasonable pursuant to I.C. § 31-16-8-1. Thus, it follows that a
        support obligation should be set based on the obligated parent’s
        actual earnings while incarcerated (and other assets available to
        the incarcerated person).


902 N.E.2d 813, 817 (Ind. 2009). A hearing was held at which Gary appeared

by telephone; Jamie, the mother of I.A., O.A., and Z.A., appeared by her

attorney; and the State, who was not directly representing Jamie but was

representing the interests of the State because Jamie was a Title IV-D recipient,

appeared by a deputy prosecutor. Jamie’s attorney argued that Clark should not

apply because Gary was incarcerated for crimes related to the very children for

whom he was seeking to modify support. The deputy prosecutor, however, was

not so sure that Clark did not apply based on two then-recent Court of Appeals

decisions holding that a defendant incarcerated for nonsupport of a

dependent—a crime also related to the child for whom the defendant was

seeking to modify support—was entitled to a child-support modification. See

Nunley v. Nunley, 955 N.E.2d 824, 826 (Ind. Ct. App. 2011), trans. denied;

Douglas v. State, 954 N.E.2d 1090, 1095-98 (Ind. Ct. App. 2011), trans. denied.1

The trial court took the matter under advisement but ultimately agreed with




1
  In these decisions, which were issued on the same day, we said that it was up to the Indiana Supreme Court
to create an exception to Lambert and Clark based on the nature of the crime. See Nunley, 955 N.E.2d at 826;
Douglas, 954 N.E.2d at 1098. Although our Supreme Court initially granted transfer in both Nunley and
Douglas, it later vacated those orders and denied transfer in both cases. Nunley, No. 68S04-1201-DR-51 (Ind.
June 29, 2012); Douglas, No. 40S01-1201-DR-50 (Ind. June 29, 2012).

Court of Appeals of Indiana | Memorandum Decision 02A03-1606-DR-1533| March 29, 2017             Page 4 of 8
      Jamie’s attorney and denied Gary’s motion in an order dated December 27,

      2013:

              1. While this Court accepts the holdings in Lambert and Clark,
              which acknowledge that the child support system should not be
              punitive in nature, this Court specifically differentiates the facts
              in this case from Lambert and concludes that the Lambert and
              Clark holdings do not necessarily apply.


              2. . . . It is important to note that in Lambert, the parent-payor was
              convicted of crimes that did not involve his own children . . . .


      Appellant’s App. Vol. II p. 30.


[8]   Gary did not appeal this order, but nearly a year later, on December 15, 2014,

      he filed a second pro se motion to modify his child support for I.A., O.A., and

      Z.A. Again, he argued that his incarceration constituted a substantial change in

      circumstances justifying a modification of his $141 per week child-support

      obligation. He noted that he earned a “nominal monthly wage” in prison. Id.

      at 36. He asked that his new child-support amount be retroactive to the date of

      his first motion. Id. at 37. A hearing was held on February 3, 2015, and the

      trial court issued an order that same day in which it construed Gary’s motion to

      modify as a motion to correct error and then denied it because it was not filed

      within thirty days of the trial court’s December 27, 2013 order. Id. at 39.


[9]   A little over a year later, on February 18, 2016, Gary filed a third pro se motion

      to modify his child support for I.A., O.A., and Z.A. Again, he argued that his

      incarceration constituted a substantial change in circumstances justifying a

      Court of Appeals of Indiana | Memorandum Decision 02A03-1606-DR-1533| March 29, 2017   Page 5 of 8
       modification of his $141 per week child-support obligation and asked that the

       new amount be retroactive to the date of his first motion. A hearing was held at

       which Gary appeared by telephone, Jamie appeared pro se, and the State

       appeared by a different deputy prosecutor. Gary testified that he made $43 per

       month in prison. Following the hearing, the trial court entered an order

       denying Gary’s motion. The court explained that Gary was just asking the

       court to “reconsider” its December 27, 2013 order; however, such a request was

       “untimely.” Id. at 16.


[10]   Gary, pro se, now appeals.2



                                     Discussion and Decision
[11]   The State concedes that the trial court was “incorrect” when it denied Gary’s

       first motion to modify child support. Appellee’s Br. p. 14. In support, the State

       cites Nunley and Douglas, a pair of decisions issued by this Court two years

       before Gary filed his first motion to modify child support that addressed

       whether parents incarcerated for nonsupport of a dependent were entitled to a

       modification of child support. In holding that the incarcerated parents were

       entitled to a modification, we held that the logic of Lambert and Clark applied




       2
        Jamie did not file an appellate brief. The State filed an appellate brief, representing the interests of the State
       because Jamie is a Title IV-D recipient.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1606-DR-1533| March 29, 2017                   Page 6 of 8
       “regardless of the crime that led to the obligor’s incarceration.” Nunley, 955

       N.E.2d at 826; Douglas, 954 N.E.2d at 1095-98.


[12]   Despite this concession of error, the State nevertheless argues that Gary is out

       of luck because this appeal is really a belated attempt to appeal the trial court’s

       December 27, 2013 order. See Appellee’s Br. p. 13 (State arguing that Gary’s

       second and third motions were actually untimely Trial Rule 60(B) motions for

       relief from judgment from the first order). We agree with the State that Gary is

       essentially challenging the trial court’s first order in this appeal and that he did

       not file a timely appeal of that order. But as the Indiana Supreme Court

       clarified in an opinion issued after the State submitted its brief in this case,

       while a reviewing court may properly decline to reach the merits of an untimely

       appeal (early or late) based on forfeiture, “an untimely notice of appeal does not

       divest a reviewing court of jurisdiction,” and a reviewing court may exercise

       discretion to decide the merits of a forfeited appeal. In re D.J., 68 N.E.3d 574,

       579 (Ind. 2017). Given the State’s concession that the trial court erred and our

       preference for deciding cases on the merits, we choose to exercise our discretion

       and reach the merits in this case. And as the State conceded, the trial court

       erred in its December 27, 2013 order when it created an exception to Lambert

       and Clark based on the crime that led to Gary’s incarceration. We therefore

       reverse and remand this case to the trial court with instructions to set Gary’s




       Court of Appeals of Indiana | Memorandum Decision 02A03-1606-DR-1533| March 29, 2017   Page 7 of 8
       child support based on his actual earnings while incarcerated, making it

       retroactive to November 14, 2013.3

[13]   Reversed and remanded.

       Bradford, J., and Brown, J., concur.




       3
        In its first order, the trial court provided as an alternative basis for denying Gary’s motion to modify child
       support that Gary had inherited $40,000 before he was incarcerated. Appellant’s App. Vol. II p. 31. At the
       hearing on Gary’s first motion in December 2013, Jamie testified that Gary had inherited money before he
       went to prison but had spent it all. Gary testified at a later hearing that he had inherited the money in the
       summer of 2012 and used it that same summer (while he was married to Carissa) as a down payment to
       purchase a home. In the November 2013 decree of dissolution with Carissa, Gary was ordered to quitclaim
       his interest in the home to Carissa. See id. at 67. On appeal, the State does not argue that Gary’s inheritance
       supports the trial court’s denial of his motion to modify child support.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1606-DR-1533| March 29, 2017                Page 8 of 8
