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.




Court of Appeals of Indiana | Memorandum Decision 03A01-1609-DR-2071 | June 29, 2017       Page 1 of 13
[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

      Court of Appeals of Indiana | Memorandum Decision 03A01-1609-DR-2071 | June 29, 2017   Page 2 of 13
      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,
      Court of Appeals of Indiana | Memorandum Decision 03A01-1609-DR-2071 | June 29, 2017   Page 3 of 13
              [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.


      Court of Appeals of Indiana | Memorandum Decision 03A01-1609-DR-2071 | June 29, 2017   Page 4 of 13
                 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.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1609-DR-2071 | June 29, 2017                     Page 5 of 13
                                  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).




       Court of Appeals of Indiana | Memorandum Decision 03A01-1609-DR-2071 | June 29, 2017   Page 7 of 13
[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

       Court of Appeals of Indiana | Memorandum Decision 03A01-1609-DR-2071 | June 29, 2017   Page 8 of 13
        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
Court of Appeals of Indiana | Memorandum Decision 03A01-1609-DR-2071 | June 29, 2017   Page 9 of 13
        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

Court of Appeals of Indiana | Memorandum Decision 03A01-1609-DR-2071 | June 29, 2017   Page 10 of 13
               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

       Court of Appeals of Indiana | Memorandum Decision 03A01-1609-DR-2071 | June 29, 2017   Page 11 of 13
       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.



       Court of Appeals of Indiana | Memorandum Decision 03A01-1609-DR-2071 | June 29, 2017   Page 12 of 13
       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.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1609-DR-2071 | June 29, 2017   Page 13 of 13
