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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. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

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