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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. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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