ILNews

Court rules on inclusion of survivor benefits in child support obligation

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals was faced with a situation not specifically addressed in the Child Support Guidelines and Commentary or in any Indiana case – whether Social Security survivor benefits paid to children due to the death of a custodial parent’s subsequent spouse are or should be included in the custodial parent’s weekly gross income.

In Fred N. Martinez v. Susan K. Deeter, No. 32A01-1108-DR-359, ex-spouses Fred Martinez and Susan Deeter appealed the trial court’s ruling on how much child support Martinez owed Deeter for 2007 and whether their children’s survivor benefits should be included in the calculation of Deeter’s weekly gross income for child support purposes.

Martinez and Deeter have three children, who lived with Deeter. She remarried and when her husband passed away, she and the two youngest children received survivor benefits in August 2007. Previously, they were receiving disability benefits, but could not receive both. That same year, the oldest child began living with Martinez.

The trial court included the children’s survivor benefits when determining how much child support Martinez owed.

On appeal, Martinez argued that the trial court erred in calculating the child support owed on his 2007 bonuses, by failing to adjust his effective tax rate and by making inconsistent findings. The Court of Appeals agreed, ordering the trial court to take another look at the matter. The trial court made conflicting findings that Martinez both owed $51,000 and he owed more than $7,200 in child support for 2007. The judges ordered the trial court recalculate his 2007 child support obligation and clarify the issue on remand whether the trial court intended to use his proposed adjusted tax rate.

Deeter argued on appeal that the court erred in using the survivor benefits from the children in her weekly gross income and in denying her request for attorney fees. The appellate court found different language in the guidelines and the commentary regarding survivor benefits – the guideline excludes “survivor benefits received by or for other children residing in either parent’s home” and the commentary excludes “survivor benefits paid to or for the benefit of their children.”

The COA found the language of both indicates that survivor benefits received by or for children aren’t includable in a parent’s weekly gross income. Inclusion of those benefits would result in a windfall to Martinez. This will require the trial court to recalculate the child support from 2007 through the present time.

The judges also ordered Deeter’s attorneys to provide clear authority to the trial courts, if any exists, to support the withholding of their attorney fees from Deeter’s child support judgment. The trial court ordered the child support judgment in her favor be paid first to her attorneys. The COA also directed the trial court on remand to recalculate the appropriate ratio of post-secondary education expenses to be paid by the parents.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

ADVERTISEMENT