Daniel Fuquay v. Teresa Higginson (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 14, 2017
• Docket: 82A05-1607-JP-1621
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 14 2017, 10:18 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Daniel R. Fuquay Curtis T. Hill, Jr. Evansville, Indiana Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Daniel Fuquay, February 14, 2017 Appellant-Respondent, Court of Appeals Case No. 82A05-1607-JP-1621 v. Appeal from the Vanderburgh Superior Court Teresa Higginson, et al., The Honorable Brett J. Niemeier, Appellees-Petitioners. Judge Trial Court Cause No. 82D01-8903-JP-217

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JP-1621 | February 14, 2017 Page 1 of 5 STATEMENT OF THE CASE [1] Appellant-Respondent, Daniel Fuquay (Fuquay), appeals the trial court’s denial

of his request to retroactively modify his child support obligation.

[2] We affirm.

ISSUE [3] Fuquay raises two issues on appeal, which we restate as the following single

issue: Whether the trial court abused its discretion by denying his request to

retroactively modify his child support obligation.

FACTS AND PROCEDURAL HISTORY [4] On November 26, 1987, Cameron Minor (Minor)—emancipated as of

November 2, 2006—was born out of wedlock to Appellee-Petitioner, Teresa

Higginson (Higginson). On April 12, 1989, the trial court issued an order,

establishing paternity of Minor in Fuquay and requiring Fuquay to pay child

support in the amount of $25 per week. The order specified that Fuquay’s

support obligation would be increased by $15 per week upon Minor entering

first grade.

[5] On March 26, 1991, Fuquay was sentenced to serve twenty years at the

Department of Correction following a conviction for drug dealing. On April

24, 1992, Fuquay was sentenced in a second case and ordered to serve five

years for drug dealing. Accordingly, he was continuously incarcerated from

December 9, 1990, until June 6, 2003. During his time of incarceration, he did

Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JP-1621 | February 14, 2017 Page 2 of 5 not petition the court for a modification of child support. As of March 22,

2016, Fuquay’s total child support arrearage amounted to $27,153.90. He is

currently paying $45 per week on the arrearage by way of an income

withholding order.

[6] On January 27, 2016, Fuquay filed a “verified petition to correct child support

in accordance with law.” (Appellant’s App. Vol. II, p. 17). Because most of his

current arrearage was incurred while incarcerated, he requested the trial court

to retroactively modify his child support. On May 6, 2016, the trial court

conducted a hearing and denied Fuquay’s petition on May 9, 2016. On June

15, 2016, the trial court denied Fuquay’s motion to correct error.

[7] Fuquay now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [8] Fuquay contends that the trial court abused its discretion when it denied his

petition to retroactively modify his arrearage, which had largely been incurred

while he was incarcerated. In reviewing a decision regarding a petition to

modify child support, we will reverse only if there is a showing that the trial

court abused its discretion. Mertz v. Mertz, 971 N.E.2d 189, 193 (Ind. Ct. App.

2012), trans. denied. We consider the evidence most favorable to the judgment

without reweighing the evidence or judging the credibility of the witnesses. Id.

An abuse of discretion occurs when the decision is clearly against the logic and

effect of the facts and circumstances that were before the trial court, including

any reasonable inferences to be drawn therefrom. Id.

Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JP-1621 | February 14, 2017 Page 3 of 5 [9] “[I]ncarceration does not relieve parents of their child support obligations.”

Lambert v. Lambert, 861 N.E.2d 1176, 1177 (Ind. 2007). However, it is possible

for a trial court to “calculate support based on the actual income and assets

available to the [incarcerated] parent.” Id. “Of course, this accommodation

must yield to the longstanding rule that a court may not retroactively modify

child support obligations that have accrued.” State v. Gaw, 46 N.E.3d 1278,

1281 (Ind. Ct. App. 2015). In a pair of decisions issued on the same day, our

supreme court explicitly stated that while incarceration may constitute a

substantial change in circumstances warranting a modification of an existing

child support obligation, such modification may not take effect on a date earlier

than the date on which the petition to modify the child support obligation is

filed. Clark v. Clark, 902 N.E.2d 813, 814 (Ind. 2009); Becker v. Becker, 902

N.E.2d 818, 819 (Ind. 2009).

[10] Here, Fuquay was incarcerated from December 9, 1990, until June 6, 2003,

during which time he did not file a petition to modify his child support

obligation. In fact, it was not until January 27, 2016, almost thirteen years after

he was released from prison, that he filed a petition seeking to reduce his child

support due to his incarceration. As Fuquay is now seeking to retroactively

modify his child support obligation, the trial court properly denied his petition.

CONCLUSION [11] Based on the foregoing, we hold that the trial court did not abuse its discretion

by denying Fuquay petition to modify child support.

Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JP-1621 | February 14, 2017 Page 4 of 5 [12] Affirmed.

[13] Crone, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JP-1621 | February 14, 2017 Page 5 of 5