                                                                        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.

      Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019                                Page 2 of 17
      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


      Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019        Page 3 of 17
      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

      Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019          Page 4 of 17
      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.




      Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019           Page 5 of 17
        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.

Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019               Page 6 of 17
        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.




Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019         Page 7 of 17
        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).



Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019              Page 8 of 17
      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.


      Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019            Page 9 of 17
       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



       Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019            Page 10 of 17
                          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

Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019                 Page 11 of 17
                                          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

       Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019                 Page 12 of 17
               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.




       Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019          Page 13 of 17
[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

       Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019         Page 14 of 17
       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

       Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019            Page 15 of 17
       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

       Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019         Page 16 of 17
       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.




       Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019         Page 17 of 17
