Court of Appeals of Indiana | Memorandum Decision 45A03-1507-DR-1011 | February 18, 2016 Page 1 of 23

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 

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 

J. Betancourt,

Appellant-Petitioner,

v.

John A. Betancourt,

Appellee-Respondent.

February 18, 2016

Court of Appeals Case No. 

45A03-1507-DR-1011

Appeal from the Lake Circuit 

Court

The Honorable George C. Paras, 

Judge

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 2 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 3 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 4 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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 17 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 18 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 19 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 20 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 21 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 22 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 23 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.