      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any
      court except for the purpose of establishing                              Feb 18 2016, 8:38 am

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT
      Andrew P. Martin
      Sachs & Hess
      St. John, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Tammy J. Russell f/k/a Tammy                             February 18, 2016
      J. Betancourt,                                           Court of Appeals Case No.
      Appellant-Petitioner,                                    45A03-1507-DR-1011
                                                               Appeal from the Lake Circuit
              v.                                               Court
                                                               The Honorable George C. Paras,
      John A. Betancourt,                                      Judge
      Appellee-Respondent.                                     The Honorable Michael A.
                                                               Sarafin, Magistrate
                                                               Trial Court Cause No.
                                                               45C01-0206-DR-382



      Mathias, Judge.


[1]   Tammy J. Russell (“Mother”) appeals the order of the Lake Circuit Court

      denying her claim that her ex-husband John A. Betancourt (“Father”) was in


      Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016         Page 1 of 23
      arrears in his child support and in contempt of the court’s child support and

      parenting time orders. On appeal, Mother presents three issues, which we

      restate as:


          I.   Whether the trial court erred in finding that Father did not have an
               arrearage for unpaid child support and uninsured medical expenses,
               despite the stipulation of the parties;

          II. Whether the trial court erred by applying social security disability
              payments Mother was receiving on behalf of the parties’ child to
              Father’s child support obligation and arrearage; and

          III. Whether the trial court erred by declining to award Mother attorney fees
               based on Father’s contempt of the trial court’s parenting time order.


[2]   We affirm.

                                    Facts and Procedural History

[3]   Mother and Father were married in July 1998 and had one son, D.B. (“Child”),

      born in October 1998. Mother and Father’s marriage was dissolved on

      September 4, 2003. The parties’ property settlement agreement was

      incorporated into the dissolution decree. Pursuant to this agreement, Mother

      was granted physical custody of Child, and Father was to pay $100 per week in

      child support in addition to $20 per week in arrearages from the provisional

      child support order.

[4]   Father began to receive social security disability (“SSD”) benefits in 2007

      following a motorcycle accident that occurred in 2006. Sometime thereafter,

      Mother started to receive SSD payments on behalf of Child, whose portion of



      Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 2 of 23
      the SSD payments totaled $209.77 per week. Other than this, however, Father

      only sporadically paid toward his child support arrearage.

[5]   After a hearing on various motions and petitions held on October 26, 2009, the

      trial court entered an order that stated in relevant part:

              Cause submitted. Partial agreement is reached between the
              parties as follows:
              1.     Father is in arrears in total support, including child
              support and medical expenses, in the sum of Ten Thousand Two
              Hundred Four ($10,204.00) Dollars. Said arrearage shall accrue
              interest at the rate of eight (8%) percent per annum from October
              26, 2009. However, Three Thousand Four Hundred Thirty-Five
              ($3,435.00) Dollars of said arrearage, which is the balance due
              and owing from the date of the Dissolution Decree on September
              4, 2003, shall accrue interest at eight (8%) percent per annum
              from September 4, 2003.
              2.     Father shall pay Forty ($40.00) Dollars per week on said
              support arrearage, and in addition, shall pay over to mother his
              income tax refund for the calendar year 2009 and every year
              thereafter until said arrearage and interest is paid in full.
              3.      The parties agree that currently mother is receiving child
              support due to father’s Social Security disability which satisfies
              father’s obligation for child support.


              Evidence and arguments heard. The Court rules on contested
              issues as follows:
              1.     Father is found in willful violation of the Court’s Order
              and is in contempt of Court.
              2.    Father, for a period of Four (4) months, shall be allowed to
              have parenting time with the parties’ child, [D.B.], every
              Saturday from 10:00 a.m. until 7:00 p.m.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 3 of 23
              3.     Father shall not consume any alcoholic [sic] twenty- four
              (24) hours prior to parenting time or during his parenting time
              with the parties’ child. Mother can require father to take a
              breathalyzer test any time she smells alcohol.
              4.    Father must return the parties’ child promptly at 7:00 p.m.
              and must take the child to any of his scheduled activities on said
              Saturday(s).

              5.     Father shall continue to pay and reimburse mother fifty
              (50%) percent of the medical and daycare expenses for [Child]
              which are not covered by insurance, to be paid and/or
              reimbursed within sixty (60) days of father’s receipt of said
              medical and daycare expenses. Interest shall accrue at the rate of
              eight (8%) percent thereafter if not paid.


      Appellant’s App. pp. 24-26 (emphasis added).


[6]   On May 30, 2014, Father picked up Child to exercise his parenting time.

      Although Father was supposed to return Child to Mother on June 3, 2014,

      Father kept Child and refused to return him to Mother. Mother filed an

      emergency petition for a rule to show cause why Father should not be held in

      contempt. Father responded with an emergency petition to modify child

      custody. Following a hearing on July 11, 2014, the trial court found that Father

      was in contempt for failing to abide by the court’s child custody order and

      denied Father’s petition to modify custody. Despite this order, the parties

      agreed to transfer primary physical custody of Child to Father on July 20, 2014.

      At that point, Father began to receive the SSD payments on behalf of Child.


[7]   At another hearing held on March 24, 2015, the parties informed the trial court

      that they had agreed to certain matters. Among these was that Father’s

      Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 4 of 23
arrearage for child support and uninsured medical expenses was $21,847.44 as

of July 20, 2015. The trial court then heard evidence regarding Mother having

received Child’s portion of the SSD payments. The trial court then questioned

counsel regarding the SSD payments. Specifically, the court stated that,

pursuant to the Indiana Child Support Guidelines, the SSD payment Mother

was receiving was supposed to be “applied toward an outstanding arrearage

after it covers the child support obligation.” Tr. p. 81. Mother’s counsel argued

that the 2009 order effectively modified Father’s child support obligation to

include the entire SSD payment received by Mother. After hearing further

evidence and argument, the trial court took the matter under advisement and,

on April 28, 2015, entered the order finding that Father’s child support

obligation and arrearage had been satisfied by Mother receiving Child’s portion

of Father’s SSD payments. The trial court also declined to award Mother

attorney fees based on the trial court’s previous finding that Father was in

contempt of court for failing to follow the court’s parenting time order. The trial

court’s order provides in relevant part:


        1.     At the commencement of the Hearing, the Parties reported
        the following agreements, all of which are hereby accepted,
        adopted, and approved:


                                                ***


        B.    That Father’s arrearage for child support and uninsured
        medical expenses, including interest accrued, is set at $21,847.44,
        such amount including child support and interest through July
        20, 2014, and uninsured medical expenses as paid by Mother

Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 5 of 23
           paid after July 20, 2014 and before the Hearing. The Total
           Agreed Arrearage was composed of the following:


           i. Interest on Child Support,
              September 4, 2003 to October 26, 2010                             $1,683.75


           ii. Interest on Child Support,
               October 26, 2014 to July 20, 2014                                $ 3,419.63


           iii. Principal Support Arrearage
                as of July 20, 2014                                             $7,458.04


           iv. Amounts owed for Medical Expenses                                $9,286.04


                    TOTAL                                                     $21,847.441


                                             II. Prior Orders


           2.    This Court dissolved the Parties[’] marriage on September
           4, 2003, by entry of a Decree of Dissolution of Marriage and
           Marital Settlement Agreement (the “Agreed Decree”).


                                                     ***


           12. On July 11, 2014, this Court held a hearing upon Mother’s
           claims for emergency relief and set all remaining matters for a
           pre-trial conference. This Court entered its order upon such
           Hearing on July 30, 2014 (the “2014 Order”). Such order held
           Father in contempt for his failure to abide by the prior custody
           and parenting time orders that were in effect in this case as of the



1
    The total of these numbers is actually $21,847.46.


Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 6 of 23
        date of such hearing. The contempt sanction imposed upon
        Father was a commitment to the Lake County Jail for a term of
        60 days with the opportunity to purge himself of such contempt
        by complying with the parenting time provisions as set forth in
        the 2014 Order. After such Hearing, the Parties effectuated their
        agreement whereby their minor child began residing with Father
        as of July 20, 2014, thereby obviating the provisions of the 2014
        Order requiring that Father comply with the custody and
        parenting time provisions set forth therein.


        13. The 2014 Order left Father’s Motion pending and also left
        all contempt matters asserted by Mother against Father pending
        other than those already addressed therein.


        14. At a Final Pre-Trial Conference held on January 28, 2015,
        the Court set the Hearing upon the Citation and Father’s Motion.


                               III. Contempt and Arrearage


        15. Mother sought to hold Father in contempt for his failure to
        comport with the provisions of the 2011 Order requiring that
        Father pay the amount of $40.00 towards the arrearage set forth
        therein and for failure to pay his share of uninsured medical costs
        for the Parties’ minor child pursuant to prior orders entered by
        this Court. The relief sought by Mother included a request that
        Father be held in contempt; that a judgment be entered against
        him bearing interest at 1.5% per month; and, that Father be
        ordered to pay Mother’s attorney fees.


        16. The evidence demonstrated that despite the Parties’ stipulation as
        to amounts that Father owed to Mother for past due support, interest,
        and unpaid uninsured healthcare expenses, the Parties[] failed to fully
        account for and the evidence demonstrated indirect payments made by
        Father to Mother through the child’s portion of Father’s Social Security
        Disability benefit received by Mother. Such payments must be

Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 7 of 23
        considered in determining what amounts, if any, Father actually owes
        and whether the alleged failures by him to comply with prior orders
        were contemptuous.


        17. The evidence demonstrated that Father suffered a
        motorcycle accident in 2006; applied for SSD benefits; and, was
        awarded SSD benefits in 2007. The terms of the 2011 Order clearly
        state that as of the hearing held on October 26, 2009, Mother was in fact
        receiving the child’s portion of Father’s SSD benefit as the custodial
        parent.


        18. From at least October 26, 2009, Mother was receiving the
        child’s portion of Father’s SSD benefit. Mother stopped receiving
        such benefit in September 2014. Thus, the evidence demonstrated
        that Mother received the child’s portion of Father’s SSD benefit for at
        least 252 weeks (October 26, 2009 through August 31, 2014).


        19. In September 2014, with the child then residing with
        Father, the child’s portion of Father’s SSD benefit started to be
        paid to Father.


        20. Mother acknowledged her receipt of the child’s portion of
        Father’s SSD benefits and testified, in relation to her income for
        child support purposes, that she had been out of work, as of the
        Hearing, for approximately 3 years and that her only source of
        income during such time was the child’s portion of Father’s SSD
        benefit that she was receiving through September 2014.


        21. The evidence demonstrated that the child’s portion of
        Father’s SSD benefit was and is $209.77 per week.


        22.    Father’s weekly child support obligation was set at $100.00 per
        week by the Agreed Decree; such amount was not altered after its entry.



Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 8 of 23
        23. Child Support Guideline 3.G.5.a addresses the impact of
        SSD benefits upon current support obligations and provides that
        any portion of the SSD benefit that exceeds a child support
        obligation shall be considered a gratuity for the benefit of the
        child unless there is an arrearage.


        24. Child Support Guideline 3.G.5.b addresses the impact of
        SSD benefits upon a child support arrearage and provides that
        the amount of the benefit which exceeds the child support order
        may be treated as an ongoing credit toward an existing arrearage.
        The commentary to Child Support Guideline 3 provides that such
        guidelines direct[] that any excess SSD benefit shall be applied as
        payment toward an existing arrearage and that once the arrearage is
        satisfied, any portion of the SSD benefit that exceeds the current support
        obligation is considered a gratuity.


        25. The Child Support Rules and Guidelines must be
        employed in all determinations of child support, including
        arrearage determinations. The Child Support Rules and
        Guidelines are subject to periodic review and revision by the
        Indiana Supreme Court and the failure of parties to specifically
        incorporate the Child Support Rules and Guidelines as they exist
        upon the entry of a child support agreement does not prevent the
        application of the current version of the Child Support Rules and
        Guidelines. See e.g. Schwartz v. Heeter, 994 N.E.2d 1102 (Ind.
        2013).


        26. Father’s testimony as to the reasons why he had not made
        payments towards the support and healthcare expense arrearage
        is consistent with the terms of the Child Support Guidelines
        calling for the application of the child’s portion of Father’s SSD
        benefit.


        27.    The child’s portion of Father’s SSD benefit that Mother received
        from at least October 26, 2009 through August 31, 2014, exceeded

Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 9 of 23
        Father’s current weekly support obligation by $109.00 per week. Such
        amount, over the number of weeks that Mother received the same, was
        more than sufficient to satisfy Father’s child support and child
        support and healthcare expense arrearage, as established in the 2011
        Order, and any further child support, and child support and
        healthcare expense arrearage that Father accrued after the 2011
        Order and prior to the Hearing.


        28. Father is not in contempt of this Court for failure to
        comply with this Court’s prior orders upon child support and
        healthcare expenses or upon any arrearage upon child support
        and/or healthcare expenses for the child. The Citation is
        DISMISSED and DISCHARGED.


        29. Based on the evidence before the Court, by and through
        the payment of the child’s portion of Father’s SSD benefit to
        Mother between at least October 26, 2009, and August 31, 2014,
        Father paid all arrearages owed by him that accrued pursuant to
        all prior orders entered in this case and Father’s total arrearage
        for child support and uninsured medical expenses is set at $0.00.


                                      IV. Child Support


        30. As the Parties have agreed to the modification of physical
        custody of their minor child with Father now vested with
        physical custody, Mother shall pay child support to Father.


        31. Father’s gross income for child support purposes includes
        (1) his SSD benefit, (2) the child’s portion of Father’s SSD
        benefit, and (3) income from Fathers pension.


        32. Father’s gross weekly income for child support purposes is
        set at $1,163.00.


Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 10 of 23
        33. Mother was not employed as of the Hearing. The evidence
        demonstrated that the last time Mother worked was
        approximately three (3) years before the Hearing; that Mother is
        a journeyman union carpenter; that Mother is capable of earning
        $30.00 to $35.00 per hour as a union carpenter; and that she is on
        a list of union members seeking employment through her union
        hall. The evidence further demonstrated that Mother received
        and utilized the child’s portion of Father’s SSD benefit while she
        has been unemployed and that, while she claimed a total lack of
        income, that she incurs monthly mortgage, rent or housing costs,
        with her current spouse, of $1,636.00.


        34. Mother is voluntarily underemployed or unemployed such
        that the imputation of income to her for child support purposes is
        equitable, just, and reasonable. Mother is physically capable of
        working and is able to meet her reported housing costs and is
        fully capable of earning at least federal minimum wage and funds
        sufficient to pay for her monthly housing costs. Accordingly,
        Mother’s weekly gross income for child support purposes is set at
        $500.00.


        35. While the Parties agreed to Mother having parenting time
        consistent with the Indiana Parenting Time Guidelines, the
        evidence demonstrated that Mother and the Parties’ child have
        experienced a tumultuous relationship since Father’s Motion has
        been pending; that Mother has had little contact via phone or
        otherwise with the Parties’ minor child since July 2014; and, that
        Mother has not exercised any parenting time with the Parties’
        minor child since July 2014.


        36. Mother is allocated an overnight parenting time credit
        based on 0-51 overnights.


        37. There was no evidence of any further support costs,
        credits, or offsets for either Party.

Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 11 of 23
        38. As set forth upon the attached child support obligation
        worksheet, Mother’s child support obligation is set at $69.00 per
        week, effective as of July 20, 2014, the date the Parties’ child
        commenced residing with Father by the Parties’ agreement.


        39. Mother’s child support arrearage, as of the entry of this
        Order, is set at $2,760.00, based on the passage of 40 weeks
        between July 20, 2014, and the date of the entry of this Order.


        40. To service her child support arrearage, Mother shall pay
        the additional amount of $11.00 per week until her child support
        arrearage is paid in full.


        41. Mother’s total weekly child support obligation is hereby
        set at $80.00 per week, such amount comprised of Mother’s
        weekly support obligation of $69.00 per week plus the arrearage
        payment of $11.00 per week.


        42. Mother shall make all child support payments required by
        this Order via Income Withholding Order when employed or
        through the Clerk of this Court.


        43. Father shall pay the first $714.48 in uninsured healthcare
        expenses for the Parties’ minor child annually. Thereafter, and
        also annually, Father shall pay 69.93% and Mother shall pay
        30.07% of such costs.


                                                ***


        46. All terms of all prior orders entered in this case that are not
        modified by this Order remain in full force and effect.




Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 12 of 23
                                       V. Attorney Fees


        47. Each Party incurred substantial attorney fees in connection
        with the matters before the Court at the Hearing and that were
        addressed in and by the 2014 Order. Mother sought an award of
        attorney fees in the amount of $7,251.75, and requested that
        Father be ordered to pay all of her fees. Father demonstrated that
        he had incurred attorney fees in the total amount of $6,915.00, in
        connection with the matters before the Court at the Hearing and
        that were addressed in and by the 2014 Order. Father requested
        that each Party pay his or her own attorney fees.


        48. I.C. 31-15-10-1 applies to the award of attorney fees in
        dissolution of marriage proceedings. The intent of I.C. 31-15-10-1
        is to provide access to an attorney to a party in a dissolution
        proceeding who would not otherwise be able to afford one.
        Maxwell v. Maxwell, 850 N.E.2d 969, 975 (Ind. Ct. App. 2006).


        49. An award of attorney fees and costs in a dissolution case is
        committed to the sound discretion of a court. In exercising its
        discretion to award fees and costs, a trial court must look to
        several factors including: the resources of the parties; their
        economic condition; the ability of the parties to engage in gainful
        employment and to earn adequate income; and, other factors that
        bear on the reasonableness of the award including: the size of the
        marital estate; the length of time associated with this case; the
        complexity or lack thereof of the matters before the court; the
        resources of both Parties; the result obtained or division ordered;
        and, conduct that resulted in additional litigation expenses.
        Hartley v. Hartley, 862 N.E.2d 274, 286 (Ind. Ct. App. 2007).


        50. A trial court possesses personal expertise that he or she may
        use when determining reasonable attorney fees in a marriage
        dissolution proceeding and has wide discretion to apportion the


Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 13 of 23
        fees. Mitchell v. Mitchell, 875 N.E.2d 320, 325 (Ind. Ct. App.
        2007).


        51. While income disparity may be considered in awarding fees,
        a court is not required to award fees based on such disparity
        alone. Russell v. Russell, 693 N.E.2d 980, 984 (Ind. Ct. App.
        1998).


        52. Mother sought an award of fees based on Father’s alleged
        contempt of this Court, both as held and ordered in the 2014
        Order and as she alleged at the Hearing. However, the Parties[]
        ultimately, through their own agreements, obviated the terms of
        the 2014 Order providing a parenting time schedule that Father
        was to follow so as to purge himself of the contempt order set
        forth therein. Moreover, the evidence at the Hearing did not
        support or establish Mother’s further claims of contempt upon
        Father’s child support and healthcare expense obligations. Each
        Party had access to an attorney while the post-decree matters
        addressed at the Hearing were pending; the issues presented were
        not novel or complex; and the Parties exhibited an acrimonious
        attitude towards each other at the Hearing that contributed to the
        level of fees that each incurred.


        53. The Court having considered the factors it must consider in
        exercising its broad discretion to award attorney fees in
        dissolution cases finds and orders that each Party should pay his
        or her own attorney fees incurred by each of them [for this
        hearing]. Father alone shall be responsible for all fees and costs
        charged to him by his attorney[,] and Mother alone shall be
        responsible for all fees and costs charged to her by her attorney.


Appellant’s App. pp. 17-23 (emphases added) (footnote omitted).




Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 14 of 23
[8]    Mother filed a motion to correct error on May 27, 2015, which the trial court

       denied on June 26, 2015. This appeal ensued.

                                            Standard of Review

[9]    Indiana places a strong emphasis on the discretion of our trial courts in

       determining issues involving child support. Sexton v. Sexton, 970 N.E.2d 707,

       710 (Ind. Ct. App. 2012). On appeal, we will not set aside a trial court’s

       decision unless it is clearly erroneous. Id. As always, we do not reweigh

       evidence or judge witness credibility on appeal. Id. Instead, we consider only

       the evidence most favorable to the judgment and the reasonable inferences

       drawn therefrom. Id. Although we defer to a trial court’s ability to find the facts,

       we do not defer to conclusions of law. Id.


[10]   We also note that Father has filed no appellee’s brief. In such a situation, we

       will not undertake the burden of developing the appellee’s arguments. Jenkins v.

       Jenkins, 17 N.E.3d 350, 351 (Ind. Ct. App. 2014). Instead, we apply a less

       stringent standard of review and may reverse if the appellant establishes prima

       facie error. Id. at 351-52. Prima facie error is “error at first sight, on first

       appearance, or on the face of it.” Id. at 352. Still, we are obligated to correctly

       apply the law to the facts in the record in order to determine whether reversal is

       required. Id.


                                      I. Stipulation of the Parties

[11]   Mother first argues that the trial court erred by concluding that Father did not

       actually owe her any money despite the fact that the parties had stipulated that

       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 15 of 23
       Father was in arrears in his child support and uninsured medical expenses.

       Mother argues that the parties entered into a settlement agreement which the

       trial court improperly “rewrote.” We disagree.


[12]   To be sure, Mother is correct in noting that “[i]n the dissolution of marriage

       context, parties are free to craft settlement agreements.” Singh v. Singh, 844

       N.E.2d 516, 524 (Ind. Ct. App. 2006). Such settlement agreements are

       contractual in nature and binding on the parties. Id.


[13]   Here, however, the parties did not enter into a settlement agreement. Mother

       submitted evidence and argued that Father was in arrears in the amount of

       $21,847.44. See Tr. p. 5-6; Ex. Vol., Petitioner’s Ex. 1. When asked if he agreed

       “to this number,” Father’s counsel stated, “Yes.” Tr. p. 6. This was based on

       the fact that Father had not been directly paying money to Mother for his child

       support obligation or arrearage for support and uninsured medical expenses.

[14]   However, the trial court also heard evidence that Mother had been receiving

       Child’s portion of Father’s SSD payments. The trial court correctly observed

       that, pursuant to the Indiana Child Support Guidelines, such payments must be

       credited towards a child support obligation and, if there is any excess, may be

       applied to any support arrearage. Specifically, Guideline 3(G)(5) provides:

               5.       Effect of Social Security Benefits.


                        a.      Current Support Obligation


                                                       ***

       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 16 of 23
               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:


                                                       ***


                        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 considered a gratuity for the
                        benefit of the child(ren), unless there is an arrearage.


                                                       ***


                        b.      Arrearages


                                                       ***


               2.   Application of current Social Security Disability benefits.
               The amount of the benefit which exceeds the child support order
               may be treated as an ongoing credit toward an existing arrearage.


       Ind. Child Support Guideline 3(G)(5) (emphases added).


[15]   Pursuant to Guideline 3(5), Mother’s receipt of the Child’s portion of Father’s

       SSD benefits “shall be considered as a credit to satisfy the noncustodial parent’s

       child support obligation[.]” Id. at 3(G)(5)(a)(2). See Jenkins, 17 N.E.3d at 352

       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 17 of 23
       (noting that use of the word “shall” generally connotes mandatory import).

       Further, this “[c]redit is automatic.” Ind. Child Support Guideline

       3(G)(5)(a)(2)(ii). Thus, despite the parties’ agreement as to the amount of

       Father’s arrearage, the trial court applied the existing law to the facts of the case

       before it. See also Commentary to Guideline 3(G) (“[T]he payment received for

       the benefit of the child should be applied to satisfy the disabled parent’s support

       obligation. . . . Any portion of the SSD benefit in excess of the current support

       obligation is a gratuity, unless there is an arrearage.”).

[16]   What the trial court did was not improper. Although the parties may stipulate

       to certain facts, they may not stipulate to questions of law. See Pond v. McNellis,

       845 N.E.2d 1043, 1055 (Ind. Ct. App. 2006) (noting that questions of law are

       beyond the power of agreement by the attorneys or parties, and any agreement

       purporting to stipulate to a question of law is a nullity) (quoting Price v. Freeland,

       832 N.E.2d 1036, 1043 (Ind. Ct. App. 2005)); see also Clark v. Madden, 725

       N.E.2d 100, 107 (Ind. Ct. App. 2000) (noting that child support orders must be

       made in compliance with the Indiana Child Support Guidelines).

[17]   Thus, although the trial court duly noted the parties’ “stipulation” regarding

       Father’s arrearage, this stipulation was itself based on an improper

       understanding of the effect of Mother having received Child’s portion of

       Father’s SSD benefits. When the trial court heard evidence regarding the facts

       surrounding this stipulation, it applied the applicable law to these facts. This

       was not improper.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 18 of 23
                                   II. Application of SSD Benefits

[18]   Mother also claims that the trial court erred in applying the amount she

       received in SSD benefits on behalf of Child to Father’s support arrearage.

       Specifically, she claims that the trial court’s October 2009 order increased

       Father’s support amount to be equal to the amount of the SSD benefits Mother

       was receiving. Mother refers to the following portion of the October 2009 order:


               3. The parties agree that currently mother is receiving child
               support due to father’s Social Security disability which satisfies
               father’s obligation for child support.


       Appellant’s App. p. 25 (emphasis added).


[19]   Mother reads this to mean that Father’s child support was increased to include

       the entirety of the SSD benefit Mother was receiving on behalf of Child. We

       disagree. A plain reading of this provision indicates that the trial court simply

       noted that the SSD payments received by Mother on behalf of Child “satisfie[d]

       father’s obligation for child support.” This was true; Mother received over $200

       per week in SSD benefits on behalf of Child, whereas Father’s support

       obligation was only $100 per week. The trial court’s October 2009 order simply

       noted this fact. The court’s 2009 order contains no other language that would

       suggest Father’s support obligation was increased to be equal to the amount of

       the SSD payments.


[20]   Indeed, the trial court’s 2015 order specifically noted that Father’s $100 per

       week child support obligation had not been increased thereafter. Mother


       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 19 of 23
       received $209.77 per week on behalf of Child from Father’s SSD benefits. These

       SSD benefits received by Mother were automatically credited to Father’s child

       support obligation by operation of Child Support Guideline 3(G)(5)(a)(2). Any

       portion of the SSD benefit payment that exceeds the child support obligation

       shall be considered a gratuity for the benefit of the child, “unless there is an

       arrearage.” Id. at 3(G)(5)(a)(2)(iii).


[21]   If an arrearage exists, “[t]he amount of the benefit which exceeds the child

       support order may be treated as an ongoing credit toward an existing

       arrearage.” Id. at 3(G)(5)(b)(2). The use of the word “may” indicates this is

       discretionary. See Jenkins, 17 N.E.3d at 352. Given the facts and circumstances

       of this case, we cannot say that the trial court abused its discretion in applying

       the excess toward Father’s arrearage.

[22]   The $209 per week in SSD benefits Mother received on Child’s behalf exceeded

       Father’s $100 per week child support obligation by $109. Thus, Mother was

       receiving over double the amount of Father’s child support obligation. We

       therefore decline to hold that the trial court erred in applying the $109 excess to

       Father’s arrearage for child support and uninsured medical expenses. This is

       especially true given that Father appears to be dependent upon his own SSD

       benefits and pension for his own support. The trial court could reasonably

       conclude that requiring Father to pay even more money, though $209.77 per

       week of his SSD benefits were already going toward the support of Child,

       would be unjust under the circumstances.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 20 of 23
[23]   Thus, despite the fact that the parties stipulated that Father was in arrears in his

       payment of child support and uninsured medical expenses, the trial court

       properly applied the law to the facts before it and determined that the SSD

       benefits applied automatically to satisfy Father’s child support obligation and

       the excess applied to satisfy his arrearage.


                                                      III. Contempt

[24]   Mother also claims that the trial court erred in failing to order Father to pay

       Mother’s attorney fees to compensate her for the injuries caused by Father’s

       contempt. To the extent that Mother claims that Father was in contempt for

       failing to pay his child support and arrearage, we have already determined that

       the trial court properly found that the child’s portion of Father’s SSD benefits

       received by Mother satisfied both Father’s child support obligation and his

       arrearage.2


[25]   Mother notes, however, that Father had already been found in contempt in the

       trial court’s 2014 order for failing to abide by the court’s parenting time order.




       2
         Mother takes issue with Paragraph 26 of the trial court’s April 28, 2015 order, which provides that Father’s
       testimony regarding why he had not made payments toward his child support and arrearage was “consistent
       with the terms of the Child Support Guidelines calling for the application of the child’s portion of Father’s
       SSD benefit.” Appellant’s App. p. 20. Mother notes that Father testified that he did not pay his support
       because of “stubbornness.” See Tr. p. 31-32. However, Father later testified, “I was misrepresented . . . and
       misinformed . . . and I found out later, and I thought my social security was supposed to take care of a lot of
       it, so basically it was my fault.” Tr. p. 33. The trial court, as the trier of fact, was well within its discretion to
       consider the totality of Father’s testimony and conclude that Father’s failure to pay on his child support was
       due not only to his “stubbornness,” but also his correct belief that his SSD payments were supposed to be
       credited toward his child support obligation.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016                Page 21 of 23
       The trial court, however, deferred Mother’s request for attorney fees “until final

       resolution of this matter.” Appellant’s App. p. 28.

[26]   In the 2015 order under appeal, the trial court addressed this issue specifically

       and concluded:

               52. Mother sought an award of fees based on Father’s alleged
               contempt of this Court, both as held and ordered in the 2014
               Order and as she alleged at the Hearing. However, the Parties[]
               ultimately, through their own agreements, obviated the terms of
               the 2014 Order providing a parenting time schedule that Father
               was to follow so as to purge himself of the contempt order set
               forth therein. Moreover, the evidence at the Hearing did not
               support or establish Mother’s further claims of contempt upon
               Father’s child support and healthcare expense obligations. Each
               Party had access to an attorney while the post-decree matters
               addressed at the Hearing were pending; the issues presented were
               not novel or complex; and the Parties exhibited an acrimonious
               attitude towards each other at the Hearing that contributed to the
               level of fees that each incurred.


               53. The Court having considered the factors it must consider in
               exercising its broad discretion to award attorney fees in
               dissolution cases finds and orders that each Party should pay his
               or her own attorney fees incurred by each of them [for this
               hearing]. Father alone shall be responsible for all fees and costs
               charged to him by his attorney[,] and Mother alone shall be
               responsible for all fees and costs charged to her by her attorney.


       Appellant’s App. p. 23.


[27]   As Mother acknowledges on appeal, issues regarding contempt are entrusted to

       the sound discretion of the trial court. Phillips v. Delks, 880 N.E.2d 713, 718-20

       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 22 of 23
       (Ind. Ct. App. 2008) (noting that contempt determinations are left to the trial

       court’s discretion and that, once a party has been found in contempt, monetary

       damages may be awarded to the other party for injuries incurred as a result of

       the contempt). The trial court was well aware of the facts and circumstances of

       this case and the parties’ behavior during this case. The court clearly considered

       these facts and circumstances and declined to award Mother attorney fees. We

       cannot say that this is contrary to the clear effect of the facts and circumstances

       before the court.

                                                  Conclusion

[28]   The trial court did not err by ignoring the “stipulation” of the parties. The trial

       court simply applied the controlling law to the facts of the case before it, which

       was not improper. Also, the trial court did not err in applying the SSD

       payments received by Mother on behalf of Child to satisfy Father’s child

       support obligation; indeed, such is required by the Indiana Child Support

       Guidelines. Nor did the court abuse its discretion in applying the excess from

       the SSD payments to satisfy Father’s arrearage, which is clearly allowed by the

       Child Support Guidelines. Lastly, the trial court did not abuse its discretion by

       failing to award Mother attorney fees due to Father’s earlier contempt.


[29]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016   Page 23 of 23
