FOR PUBLICATION
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DAVID HOOKER GREGORY F. ZOELLER
Michigan City, Indiana Attorney General of Indiana
KATHY BRADLEY
Deputy Attorney General
Indianapolis, Indiana
Aug 29 2014, 9:31 am
IN THE
COURT OF APPEALS OF INDIANA
DAVID HOOKER, )
)
Appellant-Petitioner, )
)
vs. ) No. 82A04-1311-DR-592
)
SHARI HOOKER, )
)
Appellee-Respondent. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Krista H. Wieberg, Judge Pro Tempore
Cause No. 82D04-0911-DR-987
August 29, 2014
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Petitioner, David Hooker (David), appeals the trial court’s modification
of his child support obligation.
We affirm.
ISSUES
David raises three issues on appeal, which we consolidate and restate as the
following two issues:
(1) Whether the trial court abused its discretion when it reduced David’s weekly child
support obligation from eight dollars to one dollar; and
(2) Whether the trial court violated David’s due process rights by not securing his
presence at the child support modification hearing.
FACTS AND PROCEDURAL HISTORY
David married Shari Hooker (Shari) on May 14, 2002. During the marriage, two
children were born: D.H. on July 27, 2004, and A.H. on November 9, 2005.1 David and
Shari separated in January 2006. David has been incarcerated in the Indiana Department
of Correction since February 8, 2007, with an earliest possible release date of July 12,
2035. On July 14, 2010, the marriage between David and Shari was dissolved. In its
Dissolution Order, the trial court ordered David to pay weekly child support in the
amount of eight dollars for the couple’s two minor children.
1
David fathered a third child out of wedlock, A.E.H., who was born on October 27, 2005. The child
support with respect to A.E.H. is not part of the current proceedings.
2
On August 11, 2013, David sent a letter to the IV-D prosecutor, requesting a
review of his child support obligation. The following month, on September 3, 2013, the
State, through the IV-D prosecutor, filed a petition to modify David’s support obligation
of his two minor children. On October 14, 2013, the trial court conducted a hearing on
the State’s motion. Although served with notice, neither David nor Shari attended the
proceeding. At the hearing, the State requested the trial court to modify David’s support
obligation and to reduce his weekly payments from eight dollars to one dollar, with an
additional three dollars per week toward his accrued arrearage. In addition, the trial court
entered that “[o]nce [David] is released support will revert back to $8.00 per week.”
(Appellant’s App. p. 10). On November 5, 2013, David filed an Objection and Request
for Rehearing on Child Support, which was denied by the trial court.
David now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Modification of Child Support
David contends that that trial court abused its discretion when it reduced his child
support to one dollar per week, with three dollars toward his accrued arrearage, because
the court failed to consider his income and his own needs. In reviewing a trial court’s
decision regarding the modification of child support, we reverse only for an abuse of
discretion. Holtzleiter v. Holtzleiter, 944 N.E.2d 502, 505 (Ind. Ct. App. 2011). An
abuse of discretion occurs when the decision is clearly against the logic and effect of the
facts and circumstances before the court, including any reasonable inferences therefrom.
Id. Whether the standard of review is phrased as “abuse of discretion” or “clear error,”
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the importance of first-person observation and preventing disruption to the family setting
justifies deference to the trial court. MacLafferty v. MacLafferty, 829 N.E.2d 938, 940-41
(Ind. 2005).
The modification of child support orders is governed by Ind. Code § 31-16-8-1.
This section provides that “[p]rovisions of an order with respect to child support . . . may
be modified or revoked.” I.C. § 31-16-8-1. Except as provided in another statute which
is not applicable here, a modification may be made only:
(1) upon a showing of changed circumstances so substantial and continuing
as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support that
differs by more than twenty percent (20%) from the amount that
would be ordered applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least
twelve (12) months before the petition requesting modification was
filed.
I.C. § 31-16-8-1(b). The party seeking to modify a child support order bears the burden
of establishing that the requirements of Indiana Code section 31-16-8-1 have been met.
Holtzleiter, 944 N.E.2d at 505.
David does not contest the trial court’s reduction in his child support obligation;
rather, David contends that the trial court, in its calculation, did not take his actual
income and own needs into account, nor did the trial court consider the “$155 dollars
maintenance fee” attached to the collection of child support. (Appellant’s Br. p. 8).
Even though David is incarcerated, he has an abiding duty to provide support for
his dependent children. In evaluating his circumstances, the trial court remained
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obligated under the Child Support Guidelines to consider all sources of income or other
property when calculating support payments upon modification. See Clark v. Clark, 902
N.E.2d 813, 817 (Ind. 2009). As such, we held in Clark that the support obligation of an
incarcerated person should be set in light of that individual’s actual earnings while
incarcerated and other assets of the incarcerated person practically available to provide
such support. Id. The Commentary to Ind. Child Support Guideline 2 (emphasis added)
provides that
[T]he Guidelines do not establish a minimum support obligation. Instead
the facts of each individual case must be examined and support set in such
a manner that the obligor is not denied a means of self-support at a
subsistence level. It is, however, recommended that a specific amount be
set.
Even in situations where the noncustodial parent has no income, courts have routinely
established a child support obligation at some minimum level. See Clark, 902 N.E.2d at
815 n.1.
During the hearing to modify his child support, David was not present and the
State did not submit evidence of David’s income. However, David informed the trial
court of his sources of income in his Objection and Request for Rehearing on Child
Support. He clarified that he has a variable income, ranging from seventy cents to one
dollar per day from a landscaping apprenticeship. Even without this apprenticeship,
David receives up to fifteen dollars per month. Furthermore, once child support funds
have accrued to the benefit of a child, a trial court lacks the power to reduce, annul, or
vacate the child support order retroactively. Whited v. Whited, 589 N.E.2d 657, 661 (Ind.
2007). In other words, once an arrearage has accrued, it has to be satisfied.
5
Moreover, Indiana Code section 33-37-5-6(b) provides that the clerk of the court
“shall collect” a yearly fee of $55—not $155, as argued by David—in addition to his
support payments. Contrary to David’s insistence to abate the fee, this is a mandatory
amount which cannot be deducted from the child support payments. See I.C. § 33-37-5-
6(d) (“The clerk may not deduct the fee from a support or maintenance payment.”). As
such, David’s support payment and arrearage—as minimal as they are—are transmitted
integrally to the minor children. Mindful that David has an obligation to his children, we
cannot conclude that the trial abused its discretion by reducing his child support and
arrearage to an absolute minimum level.
II. Due Process Rights
Next David contends that his due process rights were violated because the trial
court did not order him transported to the child support modification hearing or otherwise
secure his presence. David was served with the State’s petition to modify child support
and with the notice of hearing. The hearing was conducted on October 14, 2013, and
David never filed a request to be present at the hearing, either in person or by an alternate
method.
Although an incarcerated defendant has the constitutional due process right to
bring a civil claim or defend himself or herself in a civil action, a prisoner involved in a
civil lawsuit has no right to a transport order. Sabo v. Sabo, 812 N.E.2d 238, 242 (Ind.
Ct. App. 2004). Our courts have held that a trial court cannot secure the attendance of an
incarcerated plaintiff at a civil action unrelated to the case resulting in incarceration. Hill
v. Duckworth, 679 N.E.2d 938, 939 (Ind. Ct. App. 1997).
6
However, some means must exist by which a plaintiff or defendant can prosecute
or defend his or her civil claim while still incarcerated lest he or she be denied the
constitutional right to bring a civil action or the due process right to defend against an
action. See, e.g., Murfitt v. Murfitt, 809 N.E.2d 332, 334 (Ind. Ct. App. 2004). A trial
court should not be able to deprive a prisoner of his or her constitutional right to maintain
or defend against a civil action by denying motions that the trial court can properly deny
while concurrently ignoring the prisoner’s requests for other methods that would allow
the prisoner to prosecute or defend from prison. Zimmerman v. Hanks, 766 N.E.2d 752,
756 (Ind. Ct. App. 2002). Nevertheless, David never filed a motion to request his
attendance by alternate means in order to pursue his action, e.g., by video or telephonic
conferencing, by the appointment of a guardian ad litem to represent his interest, or to
submit his case by documentary evidence. See id. at 757-58. Therefore, because David
never filed a motion, the trial court cannot have violated his due process rights by failing
to secure his presence.
CONCLUSION
Based on the foregoing, we conclude that the trial court did not abuse its discretion
by reducing David’s child support payment nor did the trial court violate David’s due
process rights.
Affirmed.
MATHIAS, J. and CRONE, J. concur
7