ILNews

Inmates' child support orders can be modified

Jennifer Nelson
January 1, 2008
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  In a decision that may affect child support modification orders, the Indiana Court of Appeals held today an earlier Indiana Supreme Court decision also applies to a request for a modification because of incarceration. In Todd Allen Clark v. Michelle D. Clark, No. 35A05-0801-CV-26, the appellate court used the Indiana Supreme Court's decision in Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007), to determine whether Todd Clark's verified petition for abatement and/or modification of child support order should have been granted. 

In Lambert, the Supreme Court held that incarceration doesn't relieve a parent of his or her child support obligations, but a court should calculate the support based on the actual income or assets the parent has instead of pre-incarceration wages.

Clark was ordered to pay $53 a week in child support; however, after that order was issued, Clark became incarcerated and made less than $21 a month in his prison assignment job. Clark filed the verified petition, requesting the court reduce his child support obligation until he is released from prison because his incarceration has created a substantial change in circumstances that warrants the modification. Under Indiana Code Section 31-16-8-1, a modification may be made upon a showing of changed circumstances so substantial and continuing to make child support payment terms unreasonable. Even though caselaw holds that incarceration due to voluntary criminal conduct isn't a valid reason for abating or reducing an existing child support order, the Indiana Court of Appeals judges believed the Lambert decision has changed this precedent. "Although our supreme court limited Lambert specifically to the initial determination of a child support order, we now conclude that its rationale applies equally to a request for modification of a child support order based on changed circumstances due to incarceration," wrote Judge Patricia Riley. Even though the appellate court found changed circumstances, the court is aware that parents have an abiding duty to provide support for their dependent children, and as such, they held the support obligation of an incarcerated parent should be set in light of that person's actual earnings while in prison. Also using Lambert as a guide, the Court of Appeals adopted the practice of incorporating a prospective provision in child support orders involving incarcerated parents to automatically return the support obligation to the pre-incarcerated level upon the release of the parent, she wrote. As such, the court reversed the trial court denial of Todd's petition and remanded. Judge Margret Robb dissented, writing it was the Supreme Court's exclusive province to expand the parameters of Lambert to include the issue presented in this case.
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  1. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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