Sharon Stroup Dorscher v. Robert Dale Stroup (mem. dec,)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 29 2017, 8:28 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Donna Jameson
Greenwood, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sharon Stroup Dorscher, June 29, 2017
Appellant-Petitioner, Court of Appeals Case No.
03A01-1609-DR-2071
v. Appeal from the Bartholomew
Circuit Court
Robert Dale Stroup, The Honorable Bruce A.
Appellee-Respondent MacTavish, Judge
Trial Court Cause No.
03C01-0009-DR-1383
May, Judge.
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[1] Sharon Stroup Dorscher (“Mother”) appeals the trial court’s order regarding
Robert Dale Stroup’s (“Father”) child support responsibilities and arrears.
Specifically, she challenges the trial court’s finding Father’s social security
income should be considered to satisfy his child support obligations and
arrearage. As Mother has demonstrated prima facie error, we reverse and
remand.
Facts and Procedural History
[2] Mother and Father were divorced on April 10, 2001. Two children were born
of the marriage, Adam, born in 1982, and Patrick, born in 1992. The
dissolution court granted Mother custody of Adam and Patrick, who at the time
were both unemancipated. The trial court granted Father parenting time and
ordered him to pay child support. Adam is the subject of a continuing support
order, as he is “autistic and non-verbal” and “will not be able to support himself
and will require assistance throughout his life.” (Appellant’s App. Vol. II at
15.) From 2001 to 2015, the parties were often in court to address Father’s non-
payment of support.
[3] From the mid-1990’s until July 2013, Adam received Supplemental Security
Income (“SSI”), a government benefit, because of his disability. In July 2013,
when Father reached retirement age, Adam began receiving Social Security
Retirement Survivor Disability Income (“SSDI”). Mother contacted the Social
Security office to ask if Adam could receive SSI benefits instead of SSDI
benefits. She was told Adam was ineligible for SSI benefits because Father had
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reached retirement age and started receiving retirement benefits (“SSA”), which
were imputed to Adam as SSDI benefits.
[4] Twice Adam did not receive a SSDI benefit check because Father’s earnings
exceeded those permitted for SSA benefit eligibility. Sometime during 2014
and 2015, the Social Security Administration sought to discontinue Adam’s
SSDI benefits because Father earned too much income. Mother successfully
appealed that decision and Adam continued to receive SSDI benefits. Mother
testified she received information that, in 2016, Father reached the age at which
his SSA benefits are not limited by the amount of income he earns, so Adam
should not experience an interruption of SSDI benefits for that reason in the
future.
[5] On March 18, 2015, Mother filed a petition to modify child support and motion
for contempt citation based on Father’s non-payment of child support. On June
5, 2015, the trial court held a hearing and issued an order finding Father owed
Mother $6,935.00 in child support arrearage. The trial court ordered an Income
Withholding Order issued to Father’s employer for $95.00 per week to satisfy
the arrearage. The court deferred the issue of future child support and Mother’s
attorney’s fees to a later hearing.
[6] On February 26, 2016, the trial court held a hearing on all pending matters. On
March 30, 2016, the trial court ordered, in relevant part:
1. The Court finds that the current arrearage is $8,214.00. The
Court finds that as of July 1, 2013[,] Petitioner, [Mother] has
received social security benefits based on Respondent’s,
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[Father’s,] disability. Petitioner [Mother,] has received SSA not
SSI as a result of payments being made based on [Father’s]
retirement since July 1, 2013. Since July 1, 2013 and going
forward the payments made through SSD based on
Respondent’s, [Father’s,] retirement disability are credited
against his child support obligation and satisfy his child support
obligation. [Father] is given credit for $2600.00 he has paid since
the last order.
2. The Court orders Respondent, [Father,] to pay his tax refund
against the arrears and to continue to pay $95.00 per week
against the arrearage until it is satisfied in full.
(Id. at 13-14) (any errors in original).
[7] On April 29, 2016, Mother filed a motion to correct error, asserting, in relevant
part:
3. Paragraph #1 of the Court’s Order of March 30, 2016 states
that [Mother] has received social security benefits based on
[Father’s] disability.
This is erroneous as Mother has NOT received social security
benefits directly to herself. Mother has received social security
benefits as representative payee for the parties’ son, [Adam.]
In addition, this holding is erroneous as the benefits that the son
received are based upon Father’s retirement NOT any disability
on behalf of Father.
4. Paragraph #1 of the Court’s Order of March 30, 2016 states
that Mother has received SSA not SSI as a result of payments
being made based on [Father’s] retirement since July 1, 2013.
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This is erroneous in that Mother’s [sic] as representative payee of
[Adam] receives Retirement, Survivors and Disability Insurance
(See Exhibit #A) attached. [sic]
5. Paragraph #1 of the Court Order of March 30, 2016 states
“Since July 1, 2013 and going forward the payments made
through SSD based on [Father’s] retirement disability are
credited against his child support obligation and satisfy his child
support obligation.”
Again, [Father] is not disabled. Rather, he is receiving retirement
through Retirement, Survivors and Disability Insurance.
(Id. at 25-6) (emphasis in original). Mother also argued Father’s Social Security
income was separate from the money Adam received under SSDI and did not
relieve Father of his child support obligations. Additionally, she challenged the
trial court’s calculation of Father’s child support arrearage.
[8] On July 8, 2016, the trial court held a hearing on Mother’s motion to correct
error, but did not issue an order. Pursuant to Indiana Trial Rule 53.3, 1
Mother’s motion to correct error was deemed denied on August 7, 2016, as the
trial court had not issued an order on the matter.
1
Indiana Trial Rule 53.3. states, in relevant part:
In the event a court fails for forty-five (45) days to set a Motion to Correct Error for
hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was
heard or forty-five (45) days after it was filed, if no hearing is required, the pending
Motion to Correct Error shall be deemed denied.
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Discussion and Decision 2
[9] The trial court sua sponte entered findings of fact and conclusions thereon.
When a trial court enters findings and conclusions sua sponte, our standard of
review is well-settled:
Where the trial court enters specific findings sua sponte, [ ] the
specific findings control our review and the judgment only as to
the issues those specific findings cover. Where there are no
specific findings, a general judgment standard applies and we
may affirm on any legal theory supported by the evidence
adduced at trial.
We apply the following two-tier standard of review to sua sponte
findings and conclusions: whether the evidence supports the
findings, and whether the findings support the judgment.
Findings and conclusions will be set aside only if they are clearly
erroneous, that is, when the record contains no facts or inferences
supporting them. A judgment is clearly erroneous when a review
of the record leaves us with a firm conviction that a mistake has
been made. We consider only the evidence favorable to the
judgment and all reasonable inferences flowing therefrom, and
we will neither reweigh the evidence nor assess witness
credibility.
2
As an initial matter, we note Father has not filed an appellee’s brief. In such cases, we need not develop an
argument for the appellee and we apply a less stringent standard of review. Vandenburgh v. Vandenburgh, 916
N.E.2d 723, 725 (Ind. Ct. App. 2009). We may reverse if the appellant is able to establish prima facie error,
which is error at first sight, on first appearance, or on the face of it. Id. The appellee's failure to provide
argument does not relieve us of our obligation to correctly apply the law to the facts in the record in order to
determine whether reversal is required. Id.Court of Appeals of Indiana | Memorandum Decision 03A01-1609-DR-2071 | June 29, 2017 Page 6 of 13
Trust No. 6011, Lake Cty. Trust Co. v. Heil’s Haven Condo. Homeowners Ass’n, 967
N.E.2d 6, 14 (Ind. Ct. App. 2012), trans. denied.
Finding Regarding Social Security Benefits
[10] In its order, the trial court found, “as of July 1, 2013[,] [Mother] has received
social security benefits based on [Father’s] disability. [Mother] has received
SSA not SSI as a result of payments being made based on [Father’s] retirement
since July 1, 2013.” (Appellant’s App. Vol. II at 13.) Mother argues that
finding is not supported by the evidence presented. We agree she has
demonstrated a prima facie error in this regard.
[11] First, Mother presented evidence it was Adam, the parties’ disabled child, not
Mother, who received Social Security benefits. Mother simply acted as Adam’s
“representative payee.” (Id. at 30.) Prior to July 2013, Adam received SSI
benefits because he is disabled, and in July 2013, Adam began receiving SSDI
“monthly child’s benefits.” (Id.)
[12] Further, Mother presented evidence the Social Security benefits were not based
on Father having a disability. Instead, they were based on Adam’s disability
and the fact Father had reached retirement age and had begun receiving SSA
benefits based on his earnings and age. (See Tr. at 17) (indicating Adam
stopped receiving SSI benefits when Father reached retirement age and instead
received “Social Security Retirement Survivor’s Disability Insurance” (SSDI)
benefits).
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[13] Finally, the court mischaracterized the benefits paid to Adam by virtue of his
Father’s retirement. Mother presented evidence Father received SSA benefits;
Adam received SSDI benefits, which were survivor’s benefits from Father’s
SSA benefit that Adam received because he is Father’s disabled child. See
https://www.ssa.gov/sf/FactSheets/aianssavsssifinalrev.pdf (last accessed
June 9, 2017) (fact sheet outlining the differences between SSA and SSI
benefits).
Conclusion Imputing Adam’s SSDI Benefits to Father’s Child Support
Obligations
[14] The trial court concluded: “Since July 1, 2013 and going forward the payments
made through SSD based on [Father’s] retirement disability are credited against
his child support obligation and satisfy his child support obligation.” As
Mother indicated in her motion to correct error and on appeal, this finding is
contrary to established precedent. In Stultz v. Stultz, 659 N.E.2d 125 (Ind.
1995), our Indiana Supreme Court examined this issue at length:
[I]n at least three contexts that we find quite similar to the
present, the Court of Appeals has prohibited the use of benefits
payable to children under government programs (and, therefore,
analogous to the social security retirement benefits in this case) to
offset payments to which the children were otherwise entitled. In
Head v. State (1994), Ind. App., 632 N.E.2d 749, the Court of
Appeals was faced with a request from the state to have paid over
to it social security disability benefits received by children who
were also beneficiaries of the federal welfare program, Aid to
Families with Dependent Children (AFDC). The state’s
argument was grounded in federal and state statutes which
required AFDC recipients to assign their right to child support to
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the state to offset AFDC payments to which the children were
otherwise entitled. 42 U.S.C. § 602(a)(26)(A); Ind. Code § 12-14-
7-1. The Head court concluded that the social security benefits
were not child support and, therefore, not subject to the
assignment of rights requirement. In doing so, it discussed the
United States Supreme Court case of Sullivan v. Stroop, 496 U.S.
478, 110 S. Ct. 2499, 110 L.Ed.2d 438 (1990), in which the high
court considered a similar question - whether social security
benefits received by children were to be considered income for
purposes of the means test of the AFDC program:
The Supreme Court observed that Title II Social
Security payments “are explicitly characterized as
‘insurance’ benefits and are paid out of the public
treasury to all applicants meeting the criteria.”
Sullivan, 496 U.S. at 485, 110 S. Ct. at 2504, 110
L.Ed.2d at 446. Thus, while the Court acknowledged
that “Title II child’s insurance benefits might be
characterized as ‘support’ in the generic sense,” those
benefits were not the sort of child support payments
from absent parents envisioned by the Act. Id. The
Court then concluded that Title II child’s insurance
benefits are not “child support payments” and that no
portion of those benefits may be disregarded when
computing the combined value of the family’s
resources for AFDC benefits eligibility.
Head, 632 N.E.2d at 751-52.
In Brummett v. Brummett (1984), Ind. App., 472 N.E.2d 616, the
Court of Appeals held that the trial court had not abused its
discretion in finding that the receipt of social security survivor’s
benefits did not warrant reducing or abolishing the monthly child
support obligation initially owed by the child’s father and, after
his death, owed by his estate. “[T]he trial court could reasonably
have concluded the resources presently available to the supported
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child . . . were significantly less than what would have been
available if a dissolution of her parents [sic] marriage had not
taken place.” Id. at 619. In sorting out the difference between
the social security survivor’s benefits and the child support
payments, Judge Shields noted, “The existence of social security
payments is analogous to situations in which a supported child
earns extra money at a job, but not enough to give the child
emancipated status.” Id. (quoting H. Clark, Jr., The Law of
Domestic Relations 502 (1968)). As such, in this case it was not
an abuse of the trial court’s discretion to find that the social
security survivor’s benefits were not available to offset the child
support payments to which the child was otherwise entitled.
In Kyle v. Kyle (1991), Ind. App., 582 N.E.2d 842, trans. denied,
the non-custodial parent contended that the trial court should
have set his child support obligation at a lower amount because
the custodial parent received approximately $200.00 per month
in Supplemental Security Income [SSI] on behalf of their disabled
child. The Court of Appeals affirmed the trial court’s rejection of
the non-custodial parent’s claim, holding that SSI benefits
received by a disabled child are intended to supplement other
income, not substitute for it. “Accordingly, the noncustodial
parent’s child support obligation is not impacted by the receipt of
SSI on the behalf of a disabled child. SSI benefits represent
gratuitous contributions from the government and do not reduce
the noncustodial parent’s child support obligation.” Id. at 846.
While we recognize that these three cases involve different types
of benefits than the social security retirement benefits received by
the Stultz children - social security disability benefits in Head;
social security survivor benefits in Brummett; and supplemental
security income benefits in Kyle - the common thread that links
all four of these types of benefits in our minds is that they are all
payments from the government to all eligible children. Or, as the
Supreme Court said in Sullivan v. Stroop, “benefits . . . paid out of
the public treasury to all applicants meeting the criteria.” 496
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U.S. at 485, 110 S. Ct. at 2504. In Head, Brummett, and Kyle the
Court of Appeals concluded that the payments were not child
support and were not available to offset the AFDC (in Head) or
child support (in Brummett and Kyle) to which the children in
those cases were otherwise entitled. We think that this principle
should be the general rule for social security retirement payments
to children as well. After all, just like the parents of the children
receiving social security disability, social security survivor’s, and
supplemental security income benefits in these three cases, the
retired parent pays no additional premiums in order to entitle his
or her child to benefits - the amount of social security
contributions paid by the retired parent and his or her employer
are the same whether the parent is married or single and whether
he or she has children or not. Perhaps more significant, the
retired parent’s own social security retirement benefits are not
reduced or changed by the benefits his or her children receive. It
seems to us that what is going on here is that Congress has
created an entitlement for the minor children of all social security
participants who retire. But it is the children’s entitlement, not
the retiree’s, and should not as a general rule diminish the legal
obligation of retirees to support their children.
Id. at 129-30.
[15] The benefit bestowed on the Stultz children by the government is the same as
the benefit Adam receives by virtue of Father’s retirement. See id. at 126 (“Each
of the two Stultz children received $425 a month in social security benefits as a
result of Mr. Stultz’s retirement in 1994. . . . [The government paid the amount]
directly to the children.”). Also, as in Stultz, Father here receives SSA benefits
separate from the SSDI benefits Adam receives, and there is no evidence
suggesting Father’s SSA benefit is decreased based on the fact Adam receives
SSDI benefits. Additionally, Mother introduced evidence Adam would receive
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less child support under this arrangement than previously ordered by the trial
court. As in Stultz, the trial court has created a situation here in which Father,
“although he has regular and ongoing income, will pay NO child support.
Uncle Sam will pay it for him.” Id. at 130 n.9.
Finding Regarding Father’s Child Support Arrearage
[16] The trial court found and concluded Father owed $8,214.00 in child support
arrears. It is unclear from the record how the trial court came to that amount.
Mother presented documentation of Father’s arrearage and payments over a
number of years. Father and Mother provided testimony regarding Father’s
payment and non-payment of child support following the trial court’s original
child support order in 2001. Mother’s evidence suggests Father’s arrearage
could be as high as $22,371.00. Based on our other holdings in this opinion,
and the fact there is no indication in the record how the trial court calculated
the arrearage amount, we reverse and remand for recalculation of Father’s child
support arrearage.
Conclusion
[17] We hold Mother has demonstrated the trial court committed prima facie error
when it (1) misstated the type of social security benefits involved in the case; (2)
misidentified Mother as the recipient of those benefits; (3) allowed Father to
credit Adam’s SSDI benefits against Father’s child support obligation; and (4)
did not indicate how it calculated Father’s child support arrearage.
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Accordingly, we reverse the trial court’s decision and remand for findings and
conclusions consistent with this opinion.
[18] Reversed and remanded.
Brown, J., and Pyle, J., concur.
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