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ATTORNEY FOR APPELLANT Mark Small Indianapolis, Indiana

ATTORNEY FOR APPELLEE Richard A. Clem Indianapolis, Indiana ATTORNEYS FOR AMICUS CURIAE STATE OF INDIANA Steve Carter Attorney General of Indiana Thomas M. Fisher Solicitor General of Indiana Frances Barrow Julie A. Hoffman Deputy Attorneys General Indianapolis, Indiana

In the

Indiana Supreme Court
_________________________________ No. 32S01-0604-CV-136 IN RE THE MARRIAGE OF, JEFFREY LAMBERT, Appellant (Petitioner below), v. JILL LAMBERT, Appellee (Respondent below). _________________________________ Appeal from the Hendricks Superior Court, No. 32D01-0207-DR-104 The Honorable Robert W. Freese, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 32A01-0412-CV-535 _________________________________ February 22, 2007 Shepard, Chief Justice.

When appellant Jeffrey Lambert and his former wife were about to be divorced, it was already apparent that Lambert was soon headed for prison. The trial court issued a child support order based on Lambert's wages from his existing private employment. It was appropriate to base support after release on that rate of income, and thus place the burden on Lambert to establish after his release, through petition to modify, that his income might be lower than it had been before his conviction. While our Child Support Guidelines obligate every parent to provide some support even when they have no apparent present income, it was error to set support based on employment income that plainly would not be there during incarceration.

Facts and Procedural History

Jeffrey Lambert and Jill Lambert married in October 1995. Seven years later, two of Jill Lambert's nieces accused Jeffrey of molesting them. The couple subsequently separated and filed for divorce.

As part of a provisional agreement, Jeffrey agreed to pay $277 per week to support the couple's two children. Apparently, this figure was based on Jeffrey's bi-weekly income at the time, about $3,100, derived from rental properties and his work as a computer consultant. After the provisional order took effect, but before the final hearing on the dissolution, Jeffrey was convicted of two counts of "improper and inappropriate physical contact with [Jill's] minor nieces" and sentenced to a period of incarceration. (Appellant's App. at 17; Tr. at 18.) Jeffrey was in jail at the time of the final hearing and, therefore, earning virtually nothing. Still, the Final Decree ordered that he continue to pay the $277 per week in support. The court concluded that because Jeffrey's "incarceration [was] due entirely to his own voluntary actions" it was proper "to impute income to [him] consistent with the original child support calculation." (Appellant's App. at 18.)

Jeffrey appealed, arguing that the court erred in imputing to him pre-incarceration income in calculating the child support payment. A divided panel of the Court of Appeals rejected this argument and affirmed. Lambert v. Lambert, 839 N.E.2d 708, 717 (Ind. Ct. App. 2005), vacated.

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The majority concluded that criminal activity constituted voluntary unemployment or underemployment under Ind. Child Support Guideline 3(A)(3), and justified the calculation of the child support payment based on Jeffrey's potential, or pre-incarceration, income. Id. at 71215. We granted transfer, vacating the decision of the Court of Appeals. 1 Guided by the lodestar of support issues

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Indiana Law