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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. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

  2. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  3. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  4. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  5. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

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