Lambert v. Lambert, 32A01-0412-CV-535.

Citation839 N.E.2d 708
Decision Date15 December 2005
Docket NumberNo. 32A01-0412-CV-535.,32A01-0412-CV-535.
PartiesIn re: the Marriage of: Jeffrey LAMBERT, Appellant-Petitioner, v. Jill LAMBERT, Appellee-Respondent.
CourtSupreme Court of Indiana

Mark Small, Indianapolis, for Appellant.

Richard A. Clem, Alden & Clem, Indianapolis, for Appellee.


ROBB, Judge.

The trial court dissolved the marriage of Jeffrey Lambert ("Father") and Jill Lambert ("Mother") on September 20, 2004. Father appeals the dissolution decree. We affirm.


Father raises two issues for our review, which we restate as follows:

1. Whether the trial court properly imputed income to Father in calculating his child support obligation; and

2. Whether the trial court properly determined that the marital property should be evenly divided between the parties.

Facts and Procedural History

The parties were married on October 6, 1995. At that time, Father owned and operated a property management business, Land Tech, consisting of several rental properties. Also, Father worked as a computer consultant for several businesses. Sometime in the first few years of the marriage, Father provided funds that enabled Mother to start a child-care business, Andersen Academy, Inc.

In June of 2002, two of Father's nieces alleged that he had molested them. The parties thereafter separated and Mother filed for divorce. Father was eventually convicted of two separate offenses in relation to the allegations and sentenced to a term in prison. After the parties separated but before Father was convicted, the parties entered into a provisional agreement whereby Father, based upon his computer consulting income of approximately $1,500 per week at the time, was to pay $277 per week in child support. By the time of the final hearing, Father was incarcerated and no longer employed as a computer consultant. Father testified that as a result of his convictions, he would never again be able to work in that field.

In the dissolution decree, the trial court set Father's child support obligation at $277 per week, determining that Father's pre-incarceration income should be imputed to him for the purpose of calculating child support:

[Father's] current incarceration is due entirely to his own voluntary actions, and therefore, the Court continues to impute income to [Father] consistent with the original child support calculation. This finding is supported by the decision in Holsapple v. Herron, 649 N.E.2d 140 ([Ind.Ct.App.1995]) and Davis v. Vance, 574 N.E.2d 330 ([Ind.Ct.App.1991]). In those cases the Appellate Court found that an obligor parent must take responsibility for crimes that he/she commits, and all of the consequences which flow from them. To relieve a person of their appropriate support obligation would ultimately relieve a person of some of those consequences.

Appellant's Appendix at 18. The court also determined that the marital property should be divided evenly between Father and Mother. Father now appeals.

I. Child Support

Father contends that the trial court erred in imputing income to him for the purpose of calculating his child support obligation.

A. Standard of Review

Child support calculations are made utilizing the income shares model set forth in the Indiana Child Support Guidelines. See McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind.Ct.App.2004). The Guidelines apportion the cost of supporting children between the parents according to their means, on the premise that children should receive the same portion of parental income after a dissolution that they would have received if the family had remained intact. See id. A calculation of child support under the Guidelines is presumed to be valid. Id. Where, as here, the trial court enters findings and conclusion, we apply a two-tiered standard of review: first, we determine whether the evidence supports the findings, and second, we determine whether the findings support the judgment. In re Marriage of Turner v. Turner, 785 N.E.2d 259, 263 (Ind.Ct.App.2003). We will disturb the judgment only where there is no evidence supporting the findings, or the findings fail to support the judgment. Id. Father does not challenge the trial court's findings of fact herein; rather, he contends the child support determination is based upon erroneous legal determinations. We do not defer to a trial court's legal conclusions, and we will reverse a judgment that is clearly erroneous if it relies on an incorrect legal standard. Id.

B. Imputation of Income

In imputing income to Father, the trial court specifically relied upon two Indiana cases: Holsapple v. Herron and Davis v. Vance. Mother contends these cases support the trial court's decision. Father points out that the facts of those cases differ in one significant respect from those in this case: the cited cases involved a modification of child support, whereas the instant case involves an initial determination of his child support obligation.

In Davis, the father was ordered in 1988 to pay $25.00 per week in child support. In 1990, the father was sentenced to a five-year prison term. Claiming his incarceration made it impossible to continue paying the support, the father petitioned the trial court to abate his child support obligation until the end of his prison term so he would not accrue a large arrearage. The trial court denied the father's petition, and he appealed. We held that "a support obligation cannot be abated before it accrues due to the obligor's incarceration." 574 N.E.2d at 330. In Holsapple, the father was involved in a traffic accident ten years after his divorce decree set his child support obligation. He suffered personal injuries in the accident and was sentenced to an eight-year prison term for criminal acts related to the accident. The father requested an abatement of his support obligation claiming that the injuries he received in the accident, coupled with his pre-existing diabetes, rendered him disabled and unable to work. The trial court denied his request because his criminal acts contributed to his disability and were not appropriate grounds for abatement of his support obligation. We affirmed, holding that "when a criminal act or the resulting consequences therefrom is the primary cause of an obligor-parent's failure to pay child support, abatement of said obligation is not warranted." 649 N.E.2d at 142.

It seems clear, then, that in Indiana incarceration due to voluntary criminal conduct is not a valid rationale for abatement of an existing child support obligation. The question before us is, does the Davis/Holsapple rationale extend to cases in which a court is setting an initial child support obligation?1

As this is a case of first impression in Indiana, we look to other states that have considered this question. There are states that fall on both sides of the line concerning whether a support obligation should be imposed when a parent is incarcerated at the time the initial support determination is made. For instance, in Nebraska, it has been held that where a parent is incarcerated at the time initial child support is determined, that parent's pre-incarceration earnings should not be considered in the computation because the computation would be based upon an earning capacity impossible for the parent to realize. State v. Porter, 259 Neb. 366, 610 N.W.2d 23, 29 (2000). On the other hand, in Montana, it has been held that incarceration should have no effect upon an original child support order and imputing income to the incarcerated parent based upon his pre-incarceration income is not an abuse of discretion. In re Marriage of Olsen, 257 Mont. 208, 848 P.2d 1026, 1030-31 (1993). See also Frank J. Wozniak, Annotation, Loss of Income Due to Incarceration as Affecting Child Support Obligation, 27 A.L.R.5th 540, § 13, 1995 WL 900183 (1995) (summarizing cases considering the issue of whether a child support obligation should be imposed when a parent is incarcerated at the time of the initial determination).

In a typical case, the Child Support Guidelines provide that if a parent is voluntarily underemployed, the trial court must calculate child support by determining the parent's potential income. Ind. Child Support Guideline 3(A)(3). Potential income is to be determined upon the basis of "employment potential and probable earnings level based on the obligor's work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community." Id. The purposes for including potential income are to "discourage a parent from taking a lower paying job to avoid the payment of significant support" and to "fairly allocate the support obligation when one parent remarries and, because of the income of the new spouse, chooses not to be employed." Child Supp. G. 3, cmt. 2c. The trial court enjoys broad discretion to impute income to a parent so that the parent cannot evade a support obligation. Glover v. Torrence, 723 N.E.2d 924, 936 (Ind.Ct.App.2000). However, we also recognize that there are circumstances in which a parent is unemployed or underemployed for a legitimate purpose other than avoiding child support and in those circumstances, there are no grounds for imputing income. See Abouhalkah v. Sharps, 795 N.E.2d 488, 491 (Ind.Ct.App.2003) (holding that trial court erred in imputing income to a father who had left his job and was now earning less because "[a] parent who chooses to leave his employment rather than move hundreds of miles away from his children is not voluntarily unemployed or underemployed. Instead, he is a loving parent attempting to do the right thing for his children.").

Clearly, criminal activity is a voluntary act with unemployment as a consequence, but rarely, if ever, would it be undertaken with the sole purpose of avoiding child support. Unemployment by incarceration does not fall squarely into our standard child support rubric. Although it is not an act undertaken for the...

To continue reading

Request your trial
7 cases
  • Roberts v. Pickett (In re Pickett), 29A02–1501–JP–9.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 23, 2015
    ...the trial court's determination of his share of Child's college expenses was erroneous.3 Kondamuri in turn cited Lambert v. Lambert, 839 N.E.2d 708 (Ind.Ct.App.2005), trans. granted (2006), which our supreme court vacated. 861 N.E.2d 1176 (Ind.2007).4 Mother argues that Father waived this i......
  • Lambert v. Lambert, 32S01-0604-CV-136.
    • United States
    • Indiana Supreme Court of Indiana
    • February 22, 2007
    ...calculating the child support payment. A divided panel of the Court of Appeals rejected this argument and affirmed. Lambert v. Lambert, 839 N.E.2d 708, 717 (Ind.Ct.App.2005), vacated. The majority concluded that criminal activity constituted voluntary unemployment or underemployment under I......
  • Miller v. Sugden, 29A02-0511-CV-1093.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 26, 2006
    ...enjoys broad discretion to impute income to a parent so that the parent cannot evade a support obligation." In re Marriage of Lambert, 839 N.E.2d 708, 714 (Ind.Ct.App.2005). We have also stated that "child support orders cannot be used to force parents to work to their full economic potenti......
  • Kondamuri v. Kondamuri, 45A03-0510-CV-523.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 17, 2006
    ...purpose other than avoiding child support and in those circumstances, there are no grounds for imputing income." Lambert v. Lambert, 839 N.E.2d 708, 714 (Ind.Ct. App., Father introduced evidence that his regular yearly wages in 2004 were $260,462.98. Father testified that the drop in income......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT