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High court expands Lambert decision

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The Indiana Supreme Court issued two opinions today dealing with incarceration being considered as a substantial change in circumstances to justify modifying a child support order and what date a modification may take place.

In Todd Allen Clark v. Michelle D. Clark, No. 35S05-0809-CV-506, the justices used the same reasoning it employed in Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007), to justify modification of an existing child support obligation. Todd Clark went to prison after his original child support order had been instituted; he claimed he is unable to pay the $53 a week due to his incarceration. He filed a verified petition for abatement and/or modification order requesting it reduce, revoke, or abate his child support obligation until his release in 2013.

The trial court denied his petition and the Indiana Court of Appeals reversed, holding his incarceration constituted a substantial change in circumstances that could justify a modification.

Lambert only addressed whether pre-incarceration income shouldn't be imputed to an imprisoned parent when setting an initial child support order, but today's ruling extends to petitions to modify support based on the incarceration of a parent.

In Gary Becker v. Heather Becker, No. 49S04-0903-CV-113, the justices determined the effective date of modifying an existing child support order because of incarceration may not take effect on a date earlier than the date on which the petition to modify is filed.

Gary Becker petitioned for divorce in 1997 while he was incarcerated. The trial court set his weekly child support obligation at $110. In 2002, he filed a petition to modify because he received only $16 a month in prison. The trial court denied his request.

Becker invoked Lambert to request another modification of his child support obligation in 2007. The trial court reduced it to $25 a week effective the date of the Lambert decision; Becker appealed, arguing it should have been reduced retroactively to the date of the divorce.

The Supreme Court ruled the modification of a support obligation may only relate back to the date the petition to modify was filed and not an earlier date.

"We now hold 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. 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," wrote Justice Frank Sullivan.

The high court vacated the trial court's abatement of Becker's obligation to the extent that it was ordered retroactive to the date of Lambert and remanded for further proceedings.

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  • child support
    in lambert v. lambert did this man have a job pryor to incaration? was he up to date on his child support oblagation?oy

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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

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