ILNews

Inmates' child support orders can be modified

Jennifer Nelson
January 1, 2008
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  In a decision that may affect child support modification orders, the Indiana Court of Appeals held today an earlier Indiana Supreme Court decision also applies to a request for a modification because of incarceration. In Todd Allen Clark v. Michelle D. Clark, No. 35A05-0801-CV-26, the appellate court used the Indiana Supreme Court's decision in Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007), to determine whether Todd Clark's verified petition for abatement and/or modification of child support order should have been granted. 

In Lambert, the Supreme Court held that incarceration doesn't relieve a parent of his or her child support obligations, but a court should calculate the support based on the actual income or assets the parent has instead of pre-incarceration wages.

Clark was ordered to pay $53 a week in child support; however, after that order was issued, Clark became incarcerated and made less than $21 a month in his prison assignment job. Clark filed the verified petition, requesting the court reduce his child support obligation until he is released from prison because his incarceration has created a substantial change in circumstances that warrants the modification. Under Indiana Code Section 31-16-8-1, a modification may be made upon a showing of changed circumstances so substantial and continuing to make child support payment terms unreasonable. Even though caselaw holds that incarceration due to voluntary criminal conduct isn't a valid reason for abating or reducing an existing child support order, the Indiana Court of Appeals judges believed the Lambert decision has changed this precedent. "Although our supreme court limited Lambert specifically to the initial determination of a child support order, we now conclude that its rationale applies equally to a request for modification of a child support order based on changed circumstances due to incarceration," wrote Judge Patricia Riley. Even though the appellate court found changed circumstances, the court is aware that parents have an abiding duty to provide support for their dependent children, and as such, they held the support obligation of an incarcerated parent should be set in light of that person's actual earnings while in prison. Also using Lambert as a guide, the Court of Appeals adopted the practice of incorporating a prospective provision in child support orders involving incarcerated parents to automatically return the support obligation to the pre-incarcerated level upon the release of the parent, she wrote. As such, the court reversed the trial court denial of Todd's petition and remanded. Judge Margret Robb dissented, writing it was the Supreme Court's exclusive province to expand the parameters of Lambert to include the issue presented in this case.
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  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

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