An Indiana Court of Appeals judge dissented from his colleagues, finding their decision regarding child support promotes “formalism over fairness and legalism over common sense.”

Timothy D. Sexton challenged the denial of his petition for emancipation regarding one of his three children and for modification of child support. After divorcing, Donna Sedlak was eventually given primary physical custody of their three children and Sexton was ordered to pay child support. In 2005, Sedlak filed a petition for modification of child support claiming the 2002 order was unreasonable and asked that it be discontinued. No action was ever taken on that petition.

In 2006, the parents executed a notarized custody and child support agreement, agreeing two children would live with Sexton and neither party would pay child support. This wasn’t ever filed with the court. A couple of years later, Sexton quit his job and collected unemployment.

The trial court held a hearing on Sexton’s petition for emancipation and child support modification and found his net arrearage to be more than $28,000 and modified his child support to $117 per week back to June 2009 for his two dependent children. By this time, one child was emancipated.

In Timothy D. Sexton v. Donna M. (Sexton) Sedlak, No. 49A04-1005-DR-330, the majority rejected Sexton’s argument that his modification of child support should have dated back to September 2005 when Sedlak filed her petition for modification of child support, or to 2006 when the parties notarized an agreement on custody and child support instead of June 2009 when he filed his petition for modification. His child support order was an order in gross, which is a specified sum of undivided support for several children. In support, the judges cited Whited v. Whited, 859 N.E.2d 657, 662 (Ind. 2007), which prohibits any reduction in child support obligation unless there were no children dependent on his support who were living with Sedlak.

Judge James Kirsch dissented on this point, believing the trial court erred in finding Sexton in contempt for nonpayment of support of more than $28,000.

“Prohibiting the retroactive modification of support, particularly of a support order in gross, has the potential to lead to absurd and unfair consequences, and our Supreme Court has recognized that doing so ‘may occasionally cause inequities,’” he wrote. “This case is one of such inequities.”

He believed the rule prohibiting retroactive modifications doesn’t apply because the parties sought such a modification in 2005. Although it declined to enter an agreed entry on Sedlak’s 2005 petition, the trial court never ruled upon the petition, which remains pending. Judge Kirsch believed the trial court should modify the support order retroactive to the date of Sedlak’s petition in September 2005.

The majority also affirmed the denial of Sexton’s request to emancipate his child T.S. They did find the trial court erred in determining his child support obligation without considering T.S.’s income. They reversed the child support obligation of $117 a week and remanded for the court to determine his obligation in light of T.S.’s income.