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.
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
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.