Douglas v. State

• Decision Date: 12 October 2011
• Docket Number: No. 40A01–1009–DR–466.,40A01–1009–DR–466.
• Citation: 954 N.E.2d 1090
• Court: Indiana Appellate Court
• Parties: Jonathon D. DOUGLAS, Appellant,v.STATE of Indiana and INDIANA FAMILY & SOCIAL SERVICES ADMINISTRATION, as Assignee of the Support Rights of Mechelle (Allen) McCrory, Appellee.

954 N.E.2d 1090

Jonathon D. DOUGLAS, Appellant,

v.STATE of Indiana and INDIANA FAMILY & SOCIAL SERVICES ADMINISTRATION, as Assignee of the Support Rights of Mechelle (Allen) McCrory, Appellee.

No. 40A01–1009–DR–466.

Court of Appeals of Indiana.

Oct. 12, 2011.

R. Patrick Magrath, Alcorn Goering & Sage, LLP, Madison, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees.

OPINION

MATHIAS, Judge.

Jonathon D. Douglas (“Douglas”) appeals from the trial court's denial of his petition to modify his child support obligation and raises one issue, which we restate as whether the trial court erred in concluding that Douglas was not entitled to a reduction of his child support obligation because the reduction in his income upon which he based his petition for modification resulted from his incarceration for Class C felony nonsupport of a dependent. We reverse and remand for proceedings consistent with this opinion.

Facts and Procedural History

Douglas is subject to support orders pertaining to three of his dependent children from two previous marriages. Douglas is also father to two children with his current wife. Douglas failed to pay support as ordered and in 2004, he was charged with Class C felony nonsupport of a dependent. Douglas pleaded guilty and was sentenced to eight years with seven years suspended to probation. In August 2008, Douglas's probation was revoked due to his continued failure to pay child support as ordered, and he was ordered to serve his previously suspended sentence in the Indiana Department of Correction.

Douglas subsequently filed a petition to modify his child support obligations asserting that he was entitled to a reduction in those obligations due to the decline in his income caused by his incarceration. After a hearing at which Douglas did not appear due to his incarceration, the trial court entered an order denying Douglas's petition. The order was accompanied by the following relevant findings of fact and conclusions of law:

2. Mr. Douglas relies upon the holding in Lambert v. Lambert, 861 N.E.2d 1176 (Ind.2007) for his request to modify during the terms of his incarceration. The most recent decision on this support issue is found in Clark v. Clark, 902 N.E.2d 813 (Ind.2009). However, the facts of the case at bar are significantly different from the facts in Lambert and Clark. In particular, Clark was incarcerated for attempted murder.¹ Mr. Douglas is incarcerated due to a conviction for felony non-support of the same child he now seeks a support modification for....

3. In holding that incarceration “ may serve as a changed circumstance so substantial and continuing as to make the terms of the support order unreasonable pursuant to IND. CODE § 31–16–8–1,” Clark at 817, the Supreme Court could not have contemplated facts such as those in the case at bar.

4. Here, the Jennings County IV–D Office and before them, [Douglas's ex-wife,] exhausted every avenue available to them in order to encourage Mr. Douglas to pay his support. There were multiple Petitions for Contempt filed and multiple Income Withholding Orders. When all else failed, criminal charges were filed....

5. On April 27, 2004, [Douglas] plead guilty to Non–Support of a Dependent, a Class “C” felony and on May 12, 2004, [Douglas] was sentenced to [eight years with one year executed in the Department of Correction and seven years suspended to probation]. On the date criminal charges were filed (February 11, 2004), [Douglas's] arrearage was Eighteen Thousand Five Hundred and 39/100 Dollars ($18,500.39). Even then, [Douglas] failed to pay his child support as ordered, and his probation was revoked.

6. Now, [Douglas] asks this Court to modify his child support obligation. Granting such a request would lead to an outcome that defies logic. Such an order would allow a non-custodial parent with a child support obligation to ignore the Court's civil orders and his duty to his child, and in the event of a criminal non-support conviction, have his child support obligation modified or abated during any period of incarceration.¹ [Footnote text: In essence, Mr. Douglas is asking this Court to lower or abate his child support obligation for the child he is in prison for not supporting in the first place.]

7. The holding in Clark does not emphatically require trial courts to modify support during periods of incarceration. Rather, the holding that incarceration “may” be a change in circumstances so substantial as to make terms of a child support order unreasonable left to trial courts discretion in fact situations like this case at hand. While it is unlikely that an incarcerated non-custodial parent with a child support obligation would be found in contempt of court for not paying his child support during his time of incarceration, an arrearage should continue to accrue during that time.

8. This Court finds incarceration as a result of a conviction for felony non-support of a dependent child is not a circumstance so substantial as to make the terms of this child support order unreasonable. Therefore, the Court DENIES [Douglas's] Verified Petition to Lower Child Support Obligation filed August 17, 2009.

Appellant's App. pp. 31–32. Douglas now appeals.²

Standard of Review

The trial court issued findings of fact and conclusions of law, apparently sua sponte. In such situations, our standard of review is well settled:

[W]hen reviewing the specific findings and conclusions thereon, we must first determine whether the record supports the factual findings, and then whether the findings support the judgment. On appeal, we will not set aside the findings or judgment unless they are clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. We therefore consider only the evidence favorable to the judgment and the reasonable inferences flowing therefrom, and we will neither reweigh the evidence nor assess witness credibility. A judgment is clearly erroneous when there is no evidence to support the findings, the findings do not support the judgment, or the trial court applies the wrong legal standard to properly found facts.

However, because the trial court entered findings and conclusions sua sponte, the specific findings control only as to the issues they cover, and a general judgment standard applies to those issues on which the trial court has not found. We may affirm a general judgment on any theory supported by the evidence of record. We review questions of law de novo.

M.S. v. C.S., 938 N.E.2d 278, 281–82 (Ind.Ct.App.2010) (internal quotations and citations omitted).

Additionally, we review a trial court's denial of a petition to modify child support for an abuse of discretion. In re Paternity of E.C., 896 N.E.2d 923, 924 (Ind.Ct.App.2008). Thus, we will reverse the trial court's decision only where it is clearly against the logic and effect of the facts and circumstances before the trial court. Id. at 924–25.

Discussion and Decision

Douglas argues that the trial court's refusal to reduce his child support obligation based on the reduction of his income due to his incarceration for Class C felony nonsupport was an abuse of discretion. Douglas does not challenge the trial court's findings of fact; rather, he contends that the judgment was based on erroneous legal conclusions. As noted above, we do not defer to a trial court's legal conclusions and will reverse if the court relied on an incorrect legal standard. M.S., 938 N.E.2d at 282.

Child support orders may be modified based upon the following statutory guidelines:

(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or

(2) upon a showing that:

(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and

(B) 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) (2008).

Here, Douglas argues that the reduction in his income caused by his incarceration amounts to a substantial change in circumstances entitling him to a reduction in his child support obligation under the child support modification statute. Under the current state of the law, we are constrained to agree.

Although not specifically addressing the issue of a child support obligor incarcerated for failure to pay support as ordered, our supreme court has held that incarceration, as a general matter, may serve as a changed circumstance so substantial and continuing as to make the terms of an existing support order unreasonable in Clark v. Clark, 902 N.E.2d 813, 817 (Ind.2009). In reaching this holding, the court relied heavily on its previous decision in Lambert v. Lambert, 861 N.E.2d 1176 (Ind.2007).

In Lambert, the court addressed whether pre-incarceration income should be imputed to an incarcerated parent for the purposes of calculating an initial support order. After reviewing approaches taken in other states, the court held that “[w]hile our Child Support Guidelines obligate every parent to provide some support even when they have no apparent present income, it was error to set support based on employment income that plainly would not be there during incarceration.” Id. at 1176. The court went on to conclude that “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. at 1177.

The Lambert court reasoned that while the Child Support Guidelines allow trial courts to impute potential income to parents who are voluntarily unemployed or underemployed...