Cardwell v. Gwaltney

• Decision Date: 17 July 1990
• Docket Number: No. 87A01-9002-CV-80,87A01-9002-CV-80
• Citation: 556 N.E.2d 953
• Parties: Dwonna Gayle Gwaltney CARDWELL Appellant, v. Kenneth Wayne GWALTNEY, Appellee.
• Court: Indiana Appellate Court

Page 953

556 N.E.2d 953

Dwonna Gayle Gwaltney CARDWELL Appellant, v. Kenneth Wayne GWALTNEY, Appellee.

No. 87A01-9002-CV-80.

Court of Appeals of Indiana First District.

July 17, 1990.

Linley E. Pearson, Atty. Gen., Gordon E. White, Jr., Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellant.

Charles L. Martin, Boonville, for appellee.

ROBERTSON, Judge.

The sole issue raised in this appeal is whether an individual should be absolved from paying child support because of his incarceration.

The underlying material facts show that the appellant Cardwell and the appellee Gwaltney were divorced with Gwaltney ordered to pay child support. About a year and one half later, Gwaltney filed a petition to modify the support order based upon the reason that he had spent a year in jail. Gwaltney sought to be absolved from the support which had accrued during that year and to have future support reduced. Cardwell and Gwaltney reached an agreement that, among other things, excused Gwaltney from paying support for the year he was imprisoned. The trial court approved the agreement; however, that agreement was challenged when the county prosecuting attorney appeared in the matter and sought to set aside the agreement because Cardwell had been a recipient of AFDC funds through the State and had assigned her support rights. The trial court refused to set aside the earlier agreements with this appeal resulting.

Even though the trial judge was prompted by equitable concerns when Gwaltney was excused from paying support the law is that any modification of a support order must act prospectively:

In Biedron v. Biedron (1958), 128 Ind.App. 299, 148 N.E.2d 209, the Appellate Court of Indiana said, "in this state after support installments have accrued, the court is without power to reduce, annul or vacate such orders retrospectively, and therefore, the court committed error in attempting to do so." (Citations omitted). Therefore, payments must be made in the manner, amount, and at the times required by the support order embodied in the divorce decree until such order is modified or set aside. Stitle v. Stitle, (1964), 245 Ind. 168, 197 N.E.2d 174. Indiana does permit cancellation or modification of support orders as to future payments; but, all modifications operate prospectively. Kniffen v. Courtney (1971), 148 Ind.App. 358, 266 N.E.2d 72; Haycraft v. Haycraft, (1978), Ind.App. , 375 N.E.2d 252.

Jahn v. Jahn (1979), 179 Ind.App. 368, 385 N.E.2d 488, 490. See also O'Neil v. O'Neil (1988), Ind.App., 517 N.E.2d 433 (transfer granted on other grounds).

Additionally, I.C. 31-2-11-12 provides:

Modification of delinquent support payment.

(a) Except as provided in subsection (b), a court may not retroactively modify an obligor's duty to pay a delinquent support payment.

(b) A court...