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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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