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Court affirms felony nonsupport of a dependent conviction

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A man claiming he proved he was unable to pay child support because of his numerous incarcerations did not convince the Indiana Court of Appeals. In its ruling today, the court relied on Becker v. Becker, 902 N.E.2d 818 (Ind. 2009), to affirm the man’s conviction of Class C felony nonsupport of a dependent child.

In George H. Culbertson v. State of Indiana, No. 63A01-1002-CR-68, George Culbertson appealed his felony conviction of nonsupport of his three daughters. Culbertson and Victoria Patton were divorced in October 1986 and she was awarded custody of their daughters. He was ordered in gross to pay $200 a month through the Pike County Clerk’s office beginning Oct. 15, 1986.

According to the Pike County Prosecutor’s Office, Culbertson paid $100 toward support in 1994; he made no other payments through the clerk’s office.

From October 1986 through July 2003, Patton periodically enrolled in and received assistance from the Temporary Assistance for Needy Families program. The state charged him July 26, 2006, with felony nonsupport of a dependent child; Culbertson’s total arrearage determined by the court was $37,400.

Patton testified at trial that Culbertson worked in construction and often worked “‘under the table’ to avoid paying child support.” During his trial, all three daughters testified they’d dropped out of high school and eventually moved out of their mother’s home. They also testified that they each received $100 from Culbertson after their parents’ divorce.

Admitted into evidence were copies of case summaries showing Culbertson’s convictions and sentences under numerous cause numbers. He testified that from the time they were divorced until his trial, he had been incarcerated for a total of eight years.

The trial court in its ruling noted he was a skilled carpenter and had the skills to earn an income to pay the support, and yet he failed to prove his inability to pay support during times he was not incarcerated. He also had never petitioned for child support modification. He was sentenced to eight years, with two years suspended to probation.

The appellate court noted that even allowing for Culbertson’s periods in jail, he didn’t adequately establish an “inability to pay any child support.” He provided no evidence he did not have any income or means to earn an income during his freedom, and he did not establish a defense to nonsupport of a dependent, the court noted. He also presented no evidence that abating his support obligations during his incarcerations would have resulted in a child support arrearage of less than $15,000, which is a Class D felony. Like the trial court, the appeals panel noted that at no time did he seek to modify his child support obligation because of an inability to pay.

Culbertson also claimed the trial court abused its discretion in failing to reduce the support owed proportionally as each child became emancipated.

The court noted the dissolution decree ordered undivided child support and there was no abuse of discretion on the court’s calculation of support.

“Waiver notwithstanding, we find that Culbertson’s argument fails. ‘[W]hen a court enters an order in gross, that obligation similarly continues until the order is modified and/or set aside, or all the children are emancipated, or all of the children reach the age of twenty-one.’ Whited v. Whited, 859 N.E.2d 657, 661 (Ind. 2007),” wrote Judge Carr Darden.

Culbertson said he was entitled to retroactive modification of the child support and that the evidence is insufficient to sustain his conviction of Class C felony nonsupport.

The Court of Appeals noted the Supreme Court’s rulings in Lambert v. Lambert, 861 N.E.2d 1176, 1177 (Ind. 2007), about calculating support based on actual income and assets available to an imprisoned parent, and Clark v. Clark, 902 N.E.2d 813 (Ind. 2009), which held incarceration may constitute a substantial change in circumstances justifying modification of an existing support obligation.

However, it was the Becker case that Judge Darden relied on: “Finding ‘[n]othing in Lambert or Clark suggests a contrary rule for modifications due to incarceration,’ the Becker-court held that ‘Lambert and Clark do not apply retroactively to modify child support orders already final, but only relate to petitions to modify child support granted after Lambert was decided.’ Id. at 820-21. Thus, a ‘trial court only has the discretion to make a modification of child support due to incarceration effective as of a date no earlier than the date of the petition to modify.’ Id. at 821.”

Because Culbertson never petitioned for a modification of his child support obligation, the appellate court ruled the trial court did not abuse its discretion.
 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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