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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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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