Sherry L. Barrand v. Gary W. Martin

FILED
Mar 01 2019, 7:58 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Nicholas J. Hursh Heidi K. Koeneman
Shambaugh, Kast, Beck & Beckman Lawson, LLP
Williams, LLP Fort Wayne, Indiana
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sherry L. Barrand, March 1, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-JP-1796
v. Appeal from the Allen Superior
Court
Gary W. Martin, The Honorable Daniel G. Heath,
Appellee-Respondent Senior Judge
Trial Court Cause No.
02D07-1607-JP-554
Baker, Judge.
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 1 of 17
[1] Sherry Barrand (Mother) filed a petition to establish child support from Gary
Martin (Father) for their child, M.S.M. (Child). The trial court ordered Father
to pay an amount to which the parties had purportedly agreed. Father filed a
motion to correct errors because the amount he was ordered to pay did not
account for the Social Security retirement (SSR) benefits Child was already
receiving based on Father’s retirement. The trial court granted Father’s motion
in part, reducing the amount of Father’s child support obligation. Mother now
appeals, arguing that the trial court erred by disregarding the parties’ purported
agreement and by ordering an incorrect effective date for the child support
obligation. Finding no error, we affirm.
Facts 1
[2] Mother and Father were in a relationship but not married 2 when Child was
born in 2004. Mother was granted sole legal custody of Child. Father
acknowledged paternity and signed a paternity affidavit. Shortly after Child’s
birth, Father established an approximately $100 weekly allotment to be taken
from his paycheck to provide for Mother and Child; two years later, he
increased the weekly amount to approximately $150. In the ten years following
Child’s birth, in addition to the weekly allotments, Father paid for many things
1
We commend and thank the trial court for its thorough and exceptionally well-reasoned and well-cited
order.
2
The parties testified that they were not officially married but that they had had a ceremony, exchanged a
ring, and took a honeymoon together. For consistency with the evidence, the trial court considered the SSR
benefits paid to Mother as Father’s spouse and to Child in resolving each parent’s child support obligation.
We will do the same.
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for Mother and Child, including food, clothes, furniture, a new dryer, roofing
for Mother’s home, a used car for Mother, health insurance for Mother,
medical care for Mother when she had cancer, and Child’s daycare costs.
[3] In 2014, Mother and Father separated. That same year, Father retired and
began receiving SSR benefits. Mother then began receiving SSR spousal and
dependent child benefits. Initially, she received $1,151 per month; the amount
later increased to $1,173 per month.
[4] On July 11, 2016, Mother filed a petition to establish child support. She then
withdrew her petition without explanation. On July 5, 2017, Mother filed
another petition to establish child support. On January 19, 2018, an initial
child support hearing took place. During the hearing, the parties stipulated to a
child support obligation from Father of $180 a week effective January 1, 2018;
the parties signed a child support obligation worksheet to that effect. The trial
court did not ask the parties to affirm their agreement on the record, and the
parties did not sign an agreement.
[5] Also during the hearing, Mother’s counsel stated that “[t]here’s also
information for the Court to consider with respect to payments during the
period of time – from the date of birth on forward, as well as Social Security
retirement benefits that were paid.” Appellant’s App. Vol. II p. 11. Father’s
counsel stated, “so the Court is aware, my client does have Social Security
benefits that are going to the child, at this point in time, over and above what
we’ve agreed.” Id. at 15-16. Toward the end of the hearing, the trial court
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asked, “So then we’ve got a stipulation as to support going forward; is that
right?” Id. at 16. Father’s counsel replied, “From January 1st of 2018 going
forward, your Honor, yes.” Id.
[6] The trial court took at face value Father’s counsel’s statement about support
going forward, and on February 14, 2018, the trial court issued an order
requiring Father to pay child support of $180 per week, effective January 1,
2018, to be collected by the State. The order did not refer to the SSR benefits.
On March 5, 2018, Father filed a motion to correct errors, which stated, in
relevant part:
1. In response to an Order of the Court issued on February 14,
2018, the Respondent and Petitioner stipulated to receiving $180
a week in child support effective January 1, 2018.
2. The intent of the parties further agreed that they would
continue receiving a Social Security derivative payment being
direct deposited to the Petitioner’s bank account in the amount of
$1173.00 a month which exceeds the Respondent’s support
obligation. The Respondent has made regular payments into a
joint bank account for [Child] since January 2005.
Appellant’s App. Vol. II p. 27. The motion did not explicitly identify an error
in the trial court’s order.
[7] On May 25, 2018, a hearing on Father’s motion to correct errors took place.
Father contested the weekly child support obligation of $180 in addition to the
SSR benefits Child was receiving because those benefits already exceeded the
amount of Father’s child support obligation. Mother argued that the parties
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intended for Father’s weekly child support obligation to be in addition to and
separate from the SSR benefits.
[8] On June 26, 2018, the trial court issued a new order, granting Father’s motion
in part and denying his motion in part. The trial court concluded that the
parties’ purported agreement was vague and ambiguous and may have been
contrary to Indiana law regarding SSR benefits; the trial court then concluded
that it had erred in its February 14, 2018, order by not considering the SSR
benefits when ordering Father to pay child support of $180 per week. The trial
court found, in relevant part, as follows:
A. Findings of Fact
1. At the prior hearing held on January 19, 2018, the parties, by
counsel, acknowledged to the Court, in relevant part, that they
had reached agreement regarding Mr. Martin’s child support
obligation.
2. The parties purportedly agreed that Mr. Martin’s child
support obligation would be $180.00 per week (consistent with
Exhibit A – the parties’ Child Support Obligation Worksheet)
effective January 1, 2018, forward.
3. When discussing the application of social security benefits to
Mr. Martin’s child support obligation, [Mother’s counsel]
posited, “there’s also information for the Court to consider with
respect to payments during the period of time – from date of birth
forward, as well as Social Security retirement [Court’s emphasis
added] benefits that were paid.
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4. In addition, [Father’s counsel] advised “so the Court is aware,
my client does have social security benefits that are going to the
child at this point in time, over and above what we’ve agreed.”
***
6. Accordingly, the issues of arrearage support prior to January
1, 2018, . . . remained in dispute.
7. The Order of the Court entered on February 14, 2018 for the
hearing held on January 19, 2018, did not address or mention
Mr. Martin’s social security benefits received by Ms. Barrand.
8. Neither the parties (at the January 19, 2018, hearing) nor the
Court (in its February 14, 2018, Order) explained why current
child support would begin on January 1, 2018, rather that [sic]
the date of filing of Ms. Barrand’s pleadings.
***
10. Thereafter, consistent with the Court’s Order entered on
February 14, 2018, the State of Indiana administratively issued
an Income Withholding Order for $180.00 withheld by Mr.
Martin’s contract employer without consideration of Mr.
Martin’s social security benefits received by Ms. Barrand.
11. After receiving Mr. Martin’s Motion to Correct Errors filed
on May 5, 2018, the Court added to the confusion by issuing its
Order of the Court entered on March 13, 2018, presuming, in
error, that Mr. Martin’s social security benefits were social
security disability benefits governed by statute (not social security
retirement benefits) and went on to provided [sic] erroneous
instructions to the parties in preparation for the hearing on Mr.
Martin’s Motion to Correct Errors also set on May 25, 2018.
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12. At the hearing held on May 25, 2018, Mr. Martin, by
counsel, argued that [counsel’s] comment “over and above what
we’ve agreed” was meant to inform the Court that Mr. Martin’s
social security benefits would more than satisfy Mr. Martin’s
child support obligation of $180.00 per week with the overage
paid toward any arrearage child support owed or if no arrearage
support was owed, would be a gift to [Child].
13. At the hearing held on May 25, 2018, the State admitted that
its traditional manner of calculating child support in this case
would be to add these social security benefits to Mr. Martin’s
income and then offset the child support amount shown on the
Child Support Obligation Worksheet with the derivative benefits
paid to the child.
14. To the contrary, Ms. Barrand, by counsel, argues that the
attorneys are presumed to know the law and taken literally, Mr.
Martin, by counsel, and without objection by the State, agreed
that Mr. Martin would pay $180.00 per week to Ms. Barrand in
addition to the $270.69 per week social security retirement
benefit.
B. Conclusions of Law
1. The Court concludes that the parties’ agreement to offset (or
not) Mr. Martin’s weekly child support obligation with the social
security retirement benefits paid to Ms. Barrand is vague and
ambiguous.
2. The Court concludes that the parties’ agreement, if any, may
be contrary to Indiana case law regarding social security
retirement benefits.
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3. The Court concludes that the parties did not have an
agreement at the hearing held on January 19, 2018.
4. The Court concludes that the parties’ reasons for the
deviations from Indiana statutory requirements regarding child
support amount, payment method, and effective date were not
provided to the Court by the parties.
5. The Court concludes that, in error, its Order entered on
February 14, 2018, did not include the social security retirement
benefits referred to by [the parties’ attorneys] at the hearing held
on January 19, 2018. Further, the Court’s Order did not include
explanations for the parties’ deviations.
Appealed Order p. 3-4 (emphasis original and footnotes omitted). The trial
court then recalculated Father’s weekly child support obligation, preparing a
demonstrative exhibit to calculate the impact of the SSR benefits received by
Mother on Father’s support obligation. The trial court exercised its discretion
and provided a credit to Father for the SSR benefits received by Mother. The
trial court stated:
1. After considering the relevant case law and the facts in this
case, the Court established Mr. Martin’s child support obligation
at $57.00 (rounded from $57.28) per week consistent with the
Court-prepared Child Support Obligation Worksheet . . . . Mr.
Martin’s child support obligation is calculated as follows:
$268.00 per week (Mr. Martin’s pro rata child support obligation
including [Child’s] pro rata portion of [Child’s] healthcare
premium) minus $135.34 (a credit, offset, or deviation for SSR
spousal benefits paid to Ms. Barrand) minus $75.38 (for [Child’s]
healthcare insurance premium).
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Id. at 9 (italics original).
[9] Regarding the effective date of Father’s child support obligation, the trial court
found that:
9. Given the circumstances of this case that the Barrand-Martin
family was intact until 2014 and Mr. Martin provided financial
(actual and in-kind) support for [Child] well prior and after the
separation, the Court concludes that Ms. Barrand is not entitled
to retroactive child support beginning at [Child’s] birth on March
26, 2004, to when [Child’s] parents separated in 2014.
10. Between 2014 when [Child’s] parents separated and July 11,
2016, Mr. Martin informed Ms. Barrand of the SSR benefits
available to her and [Child] based on Mr. Martin’s age,
retirement statute, and work history. Ms. Barrand applied and
received spousal and dependent child SSR benefits in the amount
of $270.69 per week.
11. Accordingly, . . . the Court concludes that Barrand is not
entitled to retroactive support between 2014 when Ms. Barrand
and Mr. Martin separated through July 11, 2016.
12. Between July 11, 2016, and July 5, 2017, Ms. Barrand
withdrew from the IV-D program, cancelled the evidentiary
hearing, and did not reschedule an evidentiary hearing on her
pleading until after she filed her second pleading on July 5, 2017.
Ms. Barrand provided no excuse for this delay of nearly one (1)
year.
13. Accordingly, the Court finds that Mr. Martin’s child support
obligation shall be effective July 5, 2017, the date of filing for Ms.
[Barrand’s] second petition for child support.
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Id. at 8-9 (footnote omitted). Mother now appeals.
Discussion and Decision
[10] Mother appeals the trial court’s ruling on Father’s motion to correct errors,
arguing that the trial court erred by finding that Mother and Father did not have
an enforceable agreement regarding Father’s weekly child support obligation
and by finding that Father’s obligation dated back only to Mother’s 2017
petition. A trial court’s ruling on a motion to correct errors is reviewed for
error. Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1055 (Ind. 2003). An
error occurs if the trial court’s decision is against the logic and effect of the facts
and circumstances or if the trial court misapplied the law. Brown v. Brown, 979
N.E.2d 684, 685 (Ind. Ct. App. 2012).
I. Indiana Child Support Guidelines
[11] Before reaching the substance of this appeal, we are inclined to discuss the
effect of Social Security benefits on child support obligations. The Indiana
Child Support Guidelines distinguish between SSR benefits and disability
benefits: a trial court may use its discretion to credit SSR benefits to a
noncustodial parent’s child support obligation, while disability benefits must be
applied as a credit. Specifically, the Guidelines provide in relevant part:
5. Effect of Social Security Benefits.
a. Current Support Obligation
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1. Custodial parent: Social Security benefits
received for a child based upon the disability of the
custodial parent are not a credit toward the child
support obligation of the noncustodial parent. The
amount of the benefit is included in the custodial
parent’s income for the purpose of calculating the
child support obligation, and the benefit is also a
credit toward the custodial parent’s child support
obligation.
2. Noncustodial parent: Social Security benefits
received by a custodial parent, as representative
payee of the child, based upon the earnings or
disability of the noncustodial parent shall be
considered as a credit to satisfy the noncustodial
parent’s child support obligation as follows:
i. Social Security Retirement benefits may, at
the court’s discretion, be credited to the
noncustodial parent’s current child support
obligation. The credit is not automatic. The
presence of Social Security Retirement
benefits is merely one factor for the court to
consider in determining the child support
obligation or modification of the obligation.
Stultz v. Stultz, 659 N.E.2d 125 (Ind. 1995).
ii. Social Security Disability benefits shall be
included in the Weekly Gross Income of the
noncustodial parent and applied as a credit to
the noncustodial parent’s current child
support obligation. The credit is automatic.
iii. Any portion of the benefit that exceeds
the child support obligation shall be
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considered a gratuity for the benefit of the
child(ren), unless there is an arrearage.
Ind. Child Support Guideline 3G(5).
[12] Our Supreme Court has provided that
in those situations where the trial court concludes that it is
appropriate to give a Social Security recipient parent credit for
Social Security benefits paid directly to a child, the trial court
should in fact include the amount of the benefits in the recipient
parent’s adjusted income for purposes of calculating the parents’
relative share of the total child support obligation.
Stultz v. Stultz, 659 N.E.2d 125, 126 n.2 (Ind. 1995) (holding that non-custodial
parent was not entitled to offset child support obligation by the amount of SSR
benefits paid directly to his children as a result of his retirement). Our Supreme
Court later fully endorsed a flexible methodology that allows a trial court to use
its discretion when crediting a non-custodial parent’s child support obligation.
As the Court explained:
We recognize that determination of how to apply a child’s receipt
of Social Security Retirement benefits in a child support order
can be complicated, and present challenges to a trial court—and
not applying those benefits poses the risk that the trial court may
fashion a child support order under which the children of
divorcing parents enjoy a standard of living much greater than
that which they enjoyed pre-dissolution. . . .
And we likewise agree—and our Child Support Guidelines now
reflect—that a mechanical application of the trial court
methodology in Stultz (i.e., a strict denial of credit) would be
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improper, and the opinion should be applied to provide for the
exercise of the trial court’s discretion. Utilizing such a
methodology will promote the aims of the Support Guidelines,
will treat similarly situated families the same, and will provide for
children receiving the same degree of support post-dissolution
that they had when their parents’ marriage was intact.
Johnson v. Johnson, 999 N.E.2d 56, 62 (Ind. 2013) (quotation marks and
citations omitted).
[13] In the instant case, the trial court, having considered several ways in which the
SSR benefits could have an impact on Father’s child support obligation,
ultimately followed the flexible methodology endorsed in Johnson and reflected
in the Child Support Guidelines. We urge all trial courts faced with this issue
to also carefully consider the possible impact of SSR benefits when determining
whether to provide a credit to a non-custodial parent for his or her child support
obligation.
II. The Agreement
[14] Mother first challenges the trial court’s finding that she and Father did not have
an enforceable agreement regarding Father’s child support obligation.
According to Mother, the parties clearly and unambiguously intended and
agreed for Father to pay child support of $180 per week in addition to the SSR
benefits Child was receiving, even if those benefits exceeded Father’s support
obligation.
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[15] The existence of a contract is a question of law. Morris v. Crain, 969 N.E.2d
119, 123 (Ind. Ct. App. 2012). The basic requirements of a contract are offer,
acceptance, consideration, and a meeting of the minds of the contracting
parties. Id. “For an oral contract to exist, parties have to agree to all terms of
the contract.” Kelly v. Levandoski, 825 N.E.2d 850, 857 (Ind. Ct. App. 2005). If
a party cannot demonstrate agreement on one essential term of the contract,
then there is no mutual assent and no contract is formed. Id.[16] During the January 19, 2018, hearing, Mother and Father discussed their
purported agreement, which had not been put into a formal writing. Mother
contends that the child support obligation worksheet submitted by the parties
showing a child support obligation of $180 a week—without consideration of
the SSR benefits—reflects Mother and Father’s intent and agreement. But
during that same hearing, counsel for both parties indicated that the trial court
should consider the SSR benefits in its order.
[17] Specifically, Father’s counsel stated that the SSR benefits available were “over
and above what we’ve agreed.” Appellant’s App. Vol. II p. 16. According to
Mother, this statement was an acknowledgement that the SSR benefits should
be considered gifts to Child; according to Father, the statement was meant to
inform the trial court that the SSR benefits would more than satisfy his child
support obligation. In short, the parties saw and continue to see an essential
term of their agreement differently, and as a result, there was no mutual assent,
and no agreement was formed between them. The trial court, therefore, did not
err by finding that because Mother and Father had different understandings of
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their purported agreement, they did not have an enforceable agreement
regarding Father’s child support obligation.
III. Effective Date
[18] Mother also objects to the trial court’s finding the effective date of Father’s
child support obligation to be July 5, 2017, the date Mother filed her second
petition for child support. She argues that the appropriate effective date is the
date of Child’s birth or, in the alternative, the date of the filing of Mother’s first
petition in 2016.
[19] Indiana Code section 31-14-11-5, which governs the date for a support
obligation to begin, provides:
The support order:
(1) may include the period dating from the birth of the
child; and
(2) must include the period dating from the filing of the
paternity action.
(Emphases added.) The term “may” in a statute ordinarily implies a permissive
condition and a grant of discretion. Tongate v. State, 954 N.E.2d 494, 496 (Ind.
Ct. App. 2011).
[20] Mother contends that Father’s child support obligation should date back to
Child’s birth because Father’s financial resources and earning ability were and
are greater than Mother’s and because Father’s financial support through 2014
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was voluntary. Yet the statute clearly states that the trial court has discretion to
order child support from the period dating from the birth of the child. Here, the
trial court, after considering Father’s consistent financial support to Child
throughout Child’s life, exercised its discretion by not ordering Father a
retroactive obligation dating back to Child’s birth.
[21] The trial court provided clear support for its decision, finding that Mother was
not entitled to retroactive support during these time periods:
• from 2004 to 2014 because the family was intact, and Father provided
financial support to Child during this time;
• from 2014, when the parties separated, to July 11, 2016, when Mother
filed her first petition for child support, because Mother and Child
received SSR benefits based on Father’s retirement during this time; and
• from July 11, 2016, to July 5, 2017, when Mother filed her second
petition for child support, because Mother withdrew her first petition,
cancelled the evidentiary hearing, and did not reschedule it until she filed
her second pleading on July 5, 2017.
Mother points to no specific error with the trial court’s reasoning, nor do we
find one.
[22] Mother contends that, in the alternative, the trial court erred by making the
effective date of the support obligation the date of her second petition to
establish child support, rather than the date of her first. The trial court
considered whether Mother was entitled to retroactive support dating back to
the filing of her first petition in 2016 and concluded that she was not because
Mother did not follow procedure with that petition. As the Chronological Case
Summary reveals, Mother ultimately did not pursue support action under that
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petition. A summons was not filed for, and Father was not served with, this
petition. Therefore, Mother’s action under that first petition did not legally
commence. See Ind. Trial Rule 3 (“A civil action is commenced by filing with
the court a complaint or such equivalent pleading or document as may be
specified by statute, . . . and, where service of process is required, by furnishing
to the clerk as many copies of the complaint and summons as are necessary.”).
[23] When Mother filed her second petition, a summons was also filed for service of
process, and Father was served with the second petition. Accordingly, under
the statute, the effective date for the support order had to date back to the filing
of the second petition but did not have to date back to the filing of the first. The
trial court did not err on this basis.
[24] The judgment of the trial court is affirmed.
May, J., and Tavitas, J., concur.
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