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Barrand v. Martin

Court of Appeals of Indiana

March 1, 2019

Sherry L. Barrand, Appellant-Petitioner,
v.
Gary W. Martin, Appellee-Respondent

          Appeal from the Allen Superior Court The Honorable Daniel G. Heath, Senior Judge Trial Court Cause No. 02D07-1607-JP-554

          Attorney for Appellant Nicholas J. Hursh Shambaugh, Kast, Beck & Williams, LLP Fort Wayne, Indiana

          Attorney for Appellee Heidi K. Koeneman Beckman Lawson, LLP Fort Wayne, Indiana

          BAKER, JUDGE.

         [¶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 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 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 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.
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. ...

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