FRIEDLANDER, J.
. . . Father and Mother physically separated in December 2002. Following the separation, Father financially provided for C.B. by sending money to Mother every other week. In 2006, Father filed a petition for dissolution of marriage in Illinois, and Mother instituted proceedings to collect child support through an Illinois Title IV-D office. The Illinois court consolidated the cases, but ultimately dismissed the action for lack of jurisdiction because Mother lived in Indiana. Father commenced the instant action by filing his petition for dissolution of marriage in Lake County Circuit Court on November 7, 2007. Father was represented by counsel in the Indiana dissolution action but Mother was not.
Although Mother initially applied to an Indiana Title IV-D office for assistance in obtaining child support, she did not follow through in that endeavor. She broached the topic of child support for the first time in this action at a June 11, 2008 pretrial conference in which she stated to the court, “I have a question. I’ve been having problems getting child support, which I haven’t gotten for two years from my husband.” Transcript at 6. After questioning Mother and determining that there was no outstanding support order entered against Father, the court informed her, “You would need to request a provisional order, a provisional hearing.” Id. In fact, Mother never sought the Indiana court’s assistance in collecting child support from Father until the final hearing in the dissolution proceeding.
At the November 20, 2008 final hearing, Mother requested that the trial court impose a support obligation retroactive to June 1, 2006, which was the approximate date she alleged Father stopped sending biweekly support payments, and was more than seventeen months before the instant dissolution petition was filed. During the period that Father did not pay biweekly support, he made in-kind payments to Mother for C.B.’s support. At the conclusion of the hearing, the court granted the dissolution of marriage and granted Mother’s request for child support retroactive to June 1, 2006. . . . .
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Father contends the court abused its discretion when it ordered him to pay child support retroactive to a time before the filing of this dissolution action, and therefore obviously before the parties had even requested the court establish a support obligation. In the alternative, he contends that an initial support order is analogous to a modification of child support and, therefore, should not be retroactive to a date preceding the request for support. Our courts have held that an initial child support order can be retroactive to the date of the petition for dissolution. See Bill v. Bill, 155 Ind. App. 65, 290 N.E.2d 749 (1972). The question of whether an initial support order can be retroactive to a date preceding the date of a petition for dissolution, however, is a question of first impression.
It is well-settled that parents have a common law duty to support their children. See Mariga v. Flint, 822 N.E.2d 620 (Ind. Ct. App. 2005), trans. denied. Thus, there is no question that Father had a duty to support C.B., predating and entirely independent of the dissolution proceedings. The question in this case is whether the Lake Circuit Court had authority to order Father to pay support in the form of child support payments during a time when the parties’ marriage was, in the eyes of the law, intact. The trial court concluded that it possessed such authority based upon the rationale that the duty of support exists, that it had not legally terminated in this case during the relevant time period, and that it was in C.B.’s best interest to receive the support. This analysis, it seems to us, begs the question of whether the court had the power to issue such an order in the first place. We have reviewed this rationale and, especially in light of the fact that Mother has not filed an appellee’s brief in support of the trial court’s action, we have carefully considered the thoughtful and capably expressed views of our dissenting colleague. Having done so, we believe the dispositive question here is whether an Indiana court has authority to reach into an intact [footnote omitted] marriage – for that is what occurred here when the support order covered a time before the filing of the dissolution decree – and order one or both of the parties to pay traditional child support to the other on behalf of a child or children of the marriage. We conclude that it does not.
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Finally, and perhaps just as significantly, we cannot help but note that the cases cited by the dissent and in this discussion involving the imposition of support obligations are all cases involving one of two scenarios. The first involves the payment of child support by parents who, at the time the obligation was imposed, were either divorced or divorcing. No one can doubt that our courts have the authority to order divorcing or divorced parents to pay child support, but the instant case is not such a case. As set out briefly above, the other scenario involves parents who were never married, the most common of which is cases in which paternity was an issue. Again, in such cases, based upon the common-law duty of support cited above, and by authority granted specifically by statute, see I.C. § 31-14-11-5, our courts may not only impose a child support obligation, but may also make that obligation retroactive, commencing even before the date of the establishment of paternity, all the way back to and including the date of the birth of the child. See, e.g., In re Paternity of McGuire-Byers, 892 N.E.2d 187 (Ind. Ct. App. 2008), trans. denied. The latter scenario is the most closely analogous to the situation before us here because it involves the imposition of a support obligation before any request therefor has been made. It is this definition of “retroactivity” that we consider in this case, i.e., the imposition of a financial obligation commencing before the petition for payment of that obligation was even submitted. Lacking the statutory authorization present in the paternity setting represented by In re Paternity of McGuire-Byers, and notwithstanding the fact that the order in this case reaches back to a time at which the parties’ marital relationship was fully intact, at least in the eyes of the law, the trial court here invaded that realm (i.e., a legally intact marriage) and imposed an obligation heretofore reserved only for those cases in which the parties were unmarried, divorced, or divorcing. This is a step we are not willing to take.
BRADFORD, J., concurs.
NAJAM, J., dissents with a separate opinion:
I respectfully dissent. Indiana law does not prohibit trial courts from entering retroactive initial child support orders. As the majority acknowledges, a parent has a common law duty to support his child. That duty begins when a child is born, not when a petition for dissolution of marriage is filed.
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In sum, I have found nothing in our statutes or case law that prohibits a retroactive initial child support order where, as here, there is an undeniable duty to support a child and the dissolution court has determined, as a matter of fact, that the parent stopped supporting the child. We are presented here with circumstances in which the parties were physically separated for five years before Father instituted this dissolution action. The record supports the judgment that Father first provided and then ceased to provide child support following the separation. On these facts, Father should not be allowed to escape his child support obligation merely because a dissolution proceeding was not initiated until long after the parties had separated. Thus, I do not agree with the majority’s holding that the trial court abused its discretion when it ordered Father to pay child support retroactive to the date he ceased paying support, even though that date was before he filed the petition for dissolution.