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Social Security retirement benefits must be considered in child support, COA rules

March 1, 2019

A mother filing for child support couldn’t convince the Indiana Court of Appeals that the obligated amount her child’s father owes should be in addition to Social Security retirement benefits that he already gives the child.

Two years after their separation in 2014, Sherry Barrand filed a petition to establish child support from Gary Martin, the father of her child. Martin also retired and began collecting Social Security retirement benefits in 2014, which then led Barrand to received SSR spousal and dependent child benefits.

Without explaining why, Barrand withdrew her 2016 petition and later filed a second similar petition in 2017. The parties stipulated that Martin’s child support obligation would be $180 a week. However, the trial court took at face value a statement made by Martin’s counsel regarding the SSR benefits already being paid on the child’s behalf.

When the child support order was issued without referring to the SSR benefits, Martin filed a motion to correct error. Specifically, he argued the SSR benefits the child was receiving already exceeded the amount of his child support obligation. But Barrand contended that the parties intended for his weekly child support obligation to be in addition to and separate from the SSR benefits.

Finding the parties’ agreement to be vague, ambiguous and perhaps contrary to Indiana law regarding the SSR benefits, the trial court found error in its decision by not considering the SSR benefits when ordering Martin to pay child support of $180 per week. It also noted that the effective date of the obligation should be 2017 and not 2016, due to Barrand’s unexplained withdrawal of her first petition.

On appeal, Barrand argued the trial court erred in both of those findings, but in concluding there was no mutual assent or agreement formed between the parents due to their differing viewpoints on essential language regarding the Social Security retirement benefits, the Indiana Court of Appeals affirmed the lower court’s decision in Sherry L. Barrand v. Gary W. Martin, 18A-JP-1796.

“The trial court, therefore, did not err by finding that because Mother and Father had different understandings of their purported agreement, they did not have an enforceable agreement regarding Father’s child support obligation,” Judge John Baker wrote.

It additionally found fault with Barrand’s contention that child support should have gone into effect on the date of the child’s birth because Martin’s financial resources and earning abilities were greater than hers. It noted the trial court properly exercised its discretion in noting Martin’s consistent financial support during the child’s lifetime, and thus did not err in not ordering him to pay a retroactive obligation dating back to the child’s birth per Barrand’s request.

The appellate court also found no error in choosing to set the effective date for child support obligation at the date of Barrand’s second petition, finding she failed to follow procedure with her 2016 petition.

“As the Chronological Case Summary reveals, Mother ultimately did not pursue support action under that petition,” Baker concluded. “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.”

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