Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 1 of 17

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

I N T H E

COURT OF APPEALS OF INDIANA

Sherry L. Barrand,

Appellant-Petitioner,

v.

Gary W. Martin,

Appellee-Respondent

March 1, 2019

Court of Appeals Case No.

18A-JP-1796

Appeal from the Allen Superior 

Court

The Honorable Daniel G. Heath, 

Senior Judge

Trial Court Cause No.

02D07-1607-JP-554

Baker, Judge.
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 2 of 17

[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.

Facts1

[2] Mother and Father were in a relationship but not married2 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 

 

1 We commend and thank the trial court for its thorough and exceptionally well-reasoned and well-cited 

order. 

2 The parties testified that they were not officially married but that they had had a ceremony, exchanged a 

ring, and took a honeymoon together. For consistency with the evidence, the trial court considered the SSR 

benefits paid to Mother as Father’s spouse and to Child in resolving each parent’s child support obligation. 

We will do the same.
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 3 of 17

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 
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 4 of 17

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 
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 5 of 17

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.
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 6 of 17

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. 

Martin’s social security benefits received by Ms. Barrand.

11. After receiving Mr. Martin’s Motion to Correct Errors filed 

on May 5, 2018, the Court added to the confusion by issuing its 

Order of the Court entered on March 13, 2018, presuming, in 

error, that Mr. Martin’s social security benefits were social 

security disability benefits governed by statute (not social security 

retirement benefits) and went on to provided [sic] erroneous 

instructions to the parties in preparation for the hearing on Mr. 

Martin’s Motion to Correct Errors also set on May 25, 2018.
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 7 of 17

12. At the hearing held on May 25, 2018, Mr. Martin, by 

counsel, argued that [counsel’s] comment “over and above what 

we’ve agreed” was meant to inform the Court that Mr. Martin’s 

social security benefits would more than satisfy Mr. Martin’s 

child support obligation of $180.00 per week with the overage 

paid toward any arrearage child support owed or if no arrearage 

support was owed, would be a gift to [Child].

13. At the hearing held on May 25, 2018, the State admitted that 

its traditional manner of calculating child support in this case 

would be to add these social security benefits to Mr. Martin’s 

income and then offset the child support amount shown on the 

Child Support Obligation Worksheet with the derivative benefits 

paid to the child.

14. To the contrary, Ms. Barrand, by counsel, argues that the 

attorneys are presumed to know the law and taken literally, Mr. 

Martin, by counsel, and without objection by the State, agreed 

that Mr. Martin would pay $180.00 per week to Ms. Barrand in 

addition to the $270.69 per week social security retirement 

benefit.

B. Conclusions of Law

1. The Court concludes that the parties’ agreement to offset (or 

not) Mr. Martin’s weekly child support obligation with the social 

security retirement benefits paid to Ms. Barrand is vague and 

ambiguous.

2. The Court concludes that the parties’ agreement, if any, may 

be contrary to Indiana case law regarding social security 

retirement benefits.
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 8 of 17

3. The Court concludes that the parties did not have an 

agreement at the hearing held on January 19, 2018.

4. The Court concludes that the parties’ reasons for the 

deviations from Indiana statutory requirements regarding child 

support amount, payment method, and effective date were not 

provided to the Court by the parties.

5. The Court concludes that, in error, its Order entered on 

February 14, 2018, did not include the social security retirement 

benefits referred to by [the parties’ attorneys] at the hearing held 

on January 19, 2018. Further, the Court’s Order did not include 

explanations for the parties’ deviations.

Appealed Order p. 3-4 (emphasis original and footnotes omitted). The trial 

court then recalculated Father’s weekly child support obligation, preparing a 

demonstrative exhibit to calculate the impact of the SSR benefits received by 

Mother on Father’s support obligation. The trial court exercised its discretion 

and provided a credit to Father for the SSR benefits received by Mother. The 

trial court stated:

1. After considering the relevant case law and the facts in this 

case, the Court established Mr. Martin’s child support obligation 

at $57.00 (rounded from $57.28) per week consistent with the 

Court-prepared Child Support Obligation Worksheet . . . . Mr. 

Martin’s child support obligation is calculated as follows: 

$268.00 per week (Mr. Martin’s pro rata child support obligation 

including [Child’s] pro rata portion of [Child’s] healthcare 

premium) minus $135.34 (a credit, offset, or deviation for SSR 

spousal benefits paid to Ms. Barrand) minus $75.38 (for [Child’s] 

healthcare insurance premium).
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 9 of 17

Id. at 9 (italics original).

[9] Regarding the effective date of Father’s child support obligation, the trial court 

found that:

9. Given the circumstances of this case that the Barrand-Martin 

family was intact until 2014 and Mr. Martin provided financial 

(actual and in-kind) support for [Child] well prior and after the 

separation, the Court concludes that Ms. Barrand is not entitled 

to retroactive child support beginning at [Child’s] birth on March 

26, 2004, to when [Child’s] parents separated in 2014.

10. Between 2014 when [Child’s] parents separated and July 11, 

2016, Mr. Martin informed Ms. Barrand of the SSR benefits 

available to her and [Child] based on Mr. Martin’s age, 

retirement statute, and work history. Ms. Barrand applied and 

received spousal and dependent child SSR benefits in the amount 

of $270.69 per week.

11. Accordingly, . . . the Court concludes that Barrand is not 

entitled to retroactive support between 2014 when Ms. Barrand 

and Mr. Martin separated through July 11, 2016.

12. Between July 11, 2016, and July 5, 2017, Ms. Barrand 

withdrew from the IV-D program, cancelled the evidentiary 

hearing, and did not reschedule an evidentiary hearing on her 

pleading until after she filed her second pleading on July 5, 2017. 

Ms. Barrand provided no excuse for this delay of nearly one (1) 

year.

13. Accordingly, the Court finds that Mr. Martin’s child support 

obligation shall be effective July 5, 2017, the date of filing for Ms. 

[Barrand’s] second petition for child support.
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 10 of 17

Id. at 8-9 (footnote omitted). Mother now appeals.

Discussion and Decision

[10] Mother appeals the trial court’s ruling on Father’s motion to correct errors, 

arguing that the trial court erred by finding that Mother and Father did not have 

an enforceable agreement regarding Father’s weekly child support obligation

and by finding that Father’s obligation dated back only to Mother’s 2017 

petition. A trial court’s ruling on a motion to correct errors is reviewed for 

error. Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1055 (Ind. 2003). An 

error occurs if the trial court’s decision is against the logic and effect of the facts 

and circumstances or if the trial court misapplied the law. Brown v. Brown, 979 

N.E.2d 684, 685 (Ind. Ct. App. 2012). 

I. Indiana Child Support Guidelines

[11] Before reaching the substance of this appeal, we are inclined to discuss the 

effect of Social Security benefits on child support obligations. The Indiana 

Child Support Guidelines distinguish between SSR benefits and disability 

benefits: a trial court may use its discretion to credit SSR benefits to a 

noncustodial parent’s child support obligation, while disability benefits must be 

applied as a credit. Specifically, the Guidelines provide in relevant part:

5. Effect of Social Security Benefits.

a. Current Support Obligation
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 11 of 17

1. Custodial parent: Social Security benefits 

received for a child based upon the disability of the 

custodial parent are not a credit toward the child 

support obligation of the noncustodial parent. The 

amount of the benefit is included in the custodial 

parent’s income for the purpose of calculating the 

child support obligation, and the benefit is also a 

credit toward the custodial parent’s child support 

obligation.

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:

i. Social Security Retirement benefits may, at 

the court’s discretion, be credited to the 

noncustodial parent’s current child support 

obligation. The credit is not automatic. The 

presence of Social Security Retirement 

benefits is merely one factor for the court to 

consider in determining the child support 

obligation or modification of the obligation. 

Stultz v. Stultz, 659 N.E.2d 125 (Ind. 1995).

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 
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 12 of 17

considered a gratuity for the benefit of the 

child(ren), unless there is an arrearage.

Ind. Child Support Guideline 3G(5).

[12] Our Supreme Court has provided that 

in those situations where the trial court concludes that it is 

appropriate to give a Social Security recipient parent credit for 

Social Security benefits paid directly to a child, the trial court 

should in fact include the amount of the benefits in the recipient 

parent’s adjusted income for purposes of calculating the parents’

relative share of the total child support obligation.

Stultz v. Stultz, 659 N.E.2d 125, 126 n.2 (Ind. 1995) (holding that non-custodial 

parent was not entitled to offset child support obligation by the amount of SSR 

benefits paid directly to his children as a result of his retirement). Our Supreme 

Court later fully endorsed a flexible methodology that allows a trial court to use 

its discretion when crediting a non-custodial parent’s child support obligation. 

As the Court explained:

We recognize that determination of how to apply a child’s receipt 

of Social Security Retirement benefits in a child support order 

can be complicated, and present challenges to a trial court—and 

not applying those benefits poses the risk that the trial court may 

fashion a child support order under which the children of 

divorcing parents enjoy a standard of living much greater than 

that which they enjoyed pre-dissolution. . . . 

And we likewise agree—and our Child Support Guidelines now 

reflect—that a mechanical application of the trial court 

methodology in Stultz (i.e., a strict denial of credit) would be 
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 13 of 17

improper, and the opinion should be applied to provide for the 

exercise of the trial court’s discretion. Utilizing such a 

methodology will promote the aims of the Support Guidelines, 

will treat similarly situated families the same, and will provide for 

children receiving the same degree of support post-dissolution 

that they had when their parents’ marriage was intact.

Johnson v. Johnson, 999 N.E.2d 56, 62 (Ind. 2013) (quotation marks and 

citations omitted). 

[13] In the instant case, the trial court, having considered several ways in which the 

SSR benefits could have an impact on Father’s child support obligation, 

ultimately followed the flexible methodology endorsed in Johnson and reflected 

in the Child Support Guidelines. We urge all trial courts faced with this issue

to also carefully consider the possible impact of SSR benefits when determining 

whether to provide a credit to a non-custodial parent for his or her child support 

obligation.

II. The Agreement

[14] Mother first challenges the trial court’s finding that she and Father did not have 

an enforceable agreement regarding Father’s child support obligation. 

According to Mother, the parties clearly and unambiguously intended and 

agreed for Father to pay child support of $180 per week in addition to the SSR

benefits Child was receiving, even if those benefits exceeded Father’s support 

obligation. 
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 14 of 17

[15] The existence of a contract is a question of law. Morris v. Crain, 969 N.E.2d 

119, 123 (Ind. Ct. App. 2012). The basic requirements of a contract are offer, 

acceptance, consideration, and a meeting of the minds of the contracting 

parties. Id. “For an oral contract to exist, parties have to agree to all terms of 

the contract.” Kelly v. Levandoski, 825 N.E.2d 850, 857 (Ind. Ct. App. 2005). If 

a party cannot demonstrate agreement on one essential term of the contract, 

then there is no mutual assent and no contract is formed. Id.

[16] During the January 19, 2018, hearing, Mother and Father discussed their 

purported agreement, which had not been put into a formal writing. Mother 

contends that the child support obligation worksheet submitted by the parties 

showing a child support obligation of $180 a week—without consideration of

the SSR benefits—reflects Mother and Father’s intent and agreement. But 

during that same hearing, counsel for both parties indicated that the trial court 

should consider the SSR benefits in its order.

[17] Specifically, Father’s counsel stated that the SSR benefits available were “over 

and above what we’ve agreed.” Appellant’s App. Vol. II p. 16. According to 

Mother, this statement was an acknowledgement that the SSR benefits should 

be considered gifts to Child; according to Father, the statement was meant to 

inform the trial court that the SSR benefits would more than satisfy his child 

support obligation. In short, the parties saw and continue to see an essential 

term of their agreement differently, and as a result, there was no mutual assent,

and no agreement was formed between them. The trial court, therefore, did not 

err by finding that because Mother and Father had different understandings of 
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 15 of 17

their purported agreement, they did not have an enforceable agreement 

regarding Father’s child support obligation.

III. Effective Date

[18] Mother also objects to the trial court’s finding the effective date of Father’s 

child support obligation to be July 5, 2017, the date Mother filed her second 

petition for child support. She argues that the appropriate effective date is the 

date of Child’s birth or, in the alternative, the date of the filing of Mother’s first 

petition in 2016.

[19] Indiana Code section 31-14-11-5, which governs the date for a support 

obligation to begin, provides:

The support order:

(1) may include the period dating from the birth of the 

child; and

(2) must include the period dating from the filing of the 

paternity action.

(Emphases added.) The term “may” in a statute ordinarily implies a permissive 

condition and a grant of discretion. Tongate v. State, 954 N.E.2d 494, 496 (Ind. 

Ct. App. 2011). 

[20] Mother contends that Father’s child support obligation should date back to 

Child’s birth because Father’s financial resources and earning ability were and 

are greater than Mother’s and because Father’s financial support through 2014 
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 16 of 17

was voluntary. Yet the statute clearly states that the trial court has discretion to 

order child support from the period dating from the birth of the child. Here, the 

trial court, after considering Father’s consistent financial support to Child 

throughout Child’s life, exercised its discretion by not ordering Father a 

retroactive obligation dating back to Child’s birth. 

[21] The trial court provided clear support for its decision, finding that Mother was 

not entitled to retroactive support during these time periods:

• from 2004 to 2014 because the family was intact, and Father provided 

financial support to Child during this time; 

• from 2014, when the parties separated, to July 11, 2016, when Mother 

filed her first petition for child support, because Mother and Child 

received SSR benefits based on Father’s retirement during this time; and

• from July 11, 2016, to July 5, 2017, when Mother filed her second 

petition for child support, because Mother withdrew her first petition,

cancelled the evidentiary hearing, and did not reschedule it until she filed 

her second pleading on July 5, 2017.

Mother points to no specific error with the trial court’s reasoning, nor do we 

find one.

[22] Mother contends that, in the alternative, the trial court erred by making the 

effective date of the support obligation the date of her second petition to 

establish child support, rather than the date of her first. The trial court 

considered whether Mother was entitled to retroactive support dating back to 

the filing of her first petition in 2016 and concluded that she was not because 

Mother did not follow procedure with that petition. As the Chronological Case 

Summary reveals, Mother ultimately did not pursue support action under that 
Court of Appeals of Indiana | Opinion 18A-JP-1796 | March 1, 2019 Page 17 of 17

petition. 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. See Ind. Trial Rule 3 (“A civil action is commenced by filing with 

the court a complaint or such equivalent pleading or document as may be 

specified by statute, . . . and, where service of process is required, by furnishing 

to the clerk as many copies of the complaint and summons as are necessary.”). 

[23] When Mother filed her second petition, a summons was also filed for service of 

process, and Father was served with the second petition. Accordingly, under 

the statute, the effective date for the support order had to date back to the filing 

of the second petition but did not have to date back to the filing of the first. The 

trial court did not err on this basis.

[24] The judgment of the trial court is affirmed.

May, J., and Tavitas, J., concur.