IN RE: PATERNITY OF J.M. C.M., Appellant,
APPEAL FROM THE DELAWARE CIRCUIT COURT. The Honorable Brian M. Pierce, Magistrate. Cause No. 18C02-0702-JP-50.
C.M., APPELLANT, Pro se, Carlisle, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, KATHY BRADLEY, Deputy Attorney General, Indianapolis, Indiana.
BROWN, Judge. BARNES, J., concurs. ROBB, J., concurs with separate opinion.
C.M. (" Father" ) appeals the trial court's order denying his request for a hearing to determine the amount of his child support arrearage and the propriety of the garnishment of his inmate trust fund account. Father raises three issues, which we consolidate and restate as whether the court erred in denying his request. We reverse and remand.
FACTS AND PROCEDURAL HISTORY
On February 23, 2007, T.S. (" Mother" ) filed a petition to establish support alleging that Father was the father of her two children, including J.M., and was not supporting his children, and requesting an order requiring Father to pay a reasonable amount of child support. The petition also indicated that Mother had signed an agreement authorizing the State of Indiana to establish and enforce a support order under the provisions of Title IV-D of the Social Security Act. On May 29, 2007, an order on support was entered which required Father to pay child support for J.M. in the sum of $31 per week and that an immediate income withholding order was " to be issued in this cause of action if possible." Appellee's Appendix at 1.
On June 10, 2011, Father, pro se, filed a verified motion to modify child support which stated that " [a]n order providing for the minor children's support has been previously entered by this court, and [Father] was ordered to pay $30.00 per week for each child."  Appellant's Appendix at 12. Father alleged that, " [a]round May, 2008, [Mother] lost custody of [B.M.] and
[J.M.]," that in 2009 he had " signed temporary guardianship over to" the children's maternal grandparents, and that the maternal grandparents were still the legal guardians of B.M. and J.M. Id. at 12-13. Father alleged that he was currently incarcerated in the Indiana Department of Correction (" DOC" ) and requested the court to issue an order suspending or reducing his child support obligation. An entry in the chronological case summary (" CCS" ) on June 13, 2011, shows that the trial court ordered that Father's support obligation be suspended until he is released from the DOC and that, upon release, he " is ordered to contact Title IVD Court at which time a hearing will be set on his motion for modification." Id. at 4.
On April 30, 2013, Father filed a Motion for Hearing to Determine the Amount Owed in Support Arrearage and the Propriety of Trust Fund Garnishment. In the motion, Father alleged in part that on April 29, 2008, B.M. was found to be a child in need of services, that the pre-dispositional report specifically found that Father had an inability to pay support and that justice would not be served by ordering payment, that he " was informed at that time that no child support/arrears would be sought against him," and that the children's maternal grandparents " have never sought enforcement of child support from Father and agreed that support would be held in abeyance until Father's release from incarceration." Id. at 8-9. Father alleged that, " [y]ears later, [he] was notified that his support obligation would be garnished from his prison wages," that support arrearages had occurred, that his child support obligation was suspended until his release from incarceration, and that " [r]ecently, the Family Support Division has used the original support order to garnish [his] Trust Fund Account . . . to apply toward the support arrearage." Id. at 9. He noted that the court had not issued a new order and no request for a new order was made to the court, and asserted that support arrearages should not have accrued and that it was improper to force him to pay that which the court already determined he had an inability to pay. He requested a hearing to present evidence that the arrearage never should have accrued, to determine the amount of any arrearage owed, and to determine the monthly amount he should pay, if any, on this obligation. Alternatively, he requested that the court suspend the garnishment of his trust fund account until his release from incarceration. Father's earliest possible release date is March 14, 2022.
On July 9, 2013, the trial court issued an Order Denying Father's Request to Disallow Income Withholding Order. The CCS entry for the same date shows the Order " submitted and approved." Id. at 5. In the Order, the court found in part that, pursuant to the court's CCS entry on June 13, 2011, there is no current child support in the case until after Father is released from incarceration, that Father " does owe child support arrearages in this case," that " the Family Support Division is only enforcing IV-D arrears in this action," that Mother " stopped receiving TANF for the child on 03/01/2008," that it is in the best interest of the children for Father to pay on his support arrearage, and that, during his incarceration, the Family Support Division of the ...