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