Andler v. Andler

• Decision Date: 17 July 1975
• Docket Number: No. 47524,47524
• Citation: 217 Kan. 538,538 P.2d 649
• Parties: Shirley May ANDLER, n/k/a Shirley May Slimmer, Aapllee, v. Harold Eugene ANDLER, Appellant.
• Court: Kansas Supreme Court

Page 649

538 P.2d 649

217 Kan. 538

Shirley May ANDLER, n/k/a Shirley May Slimmer, Aapllee, v. Harold Eugene ANDLER, Appellant.

No. 47524.

Supreme Court of Kansas.

July 17, 1975.

Syllabus by the Court

1. Ordinarily, a divorced father is required to make child support payments as directed by the district court in the divorce decree, and he should not be permitted to vary the terms of the decree or the manner of payment to suit his convenience, or otherwise disregard the court's order. However, special considerations of an equitable nature may justify a court in crediting payments made directly to the wife on due and unpaid child support, although made at variance with the technical requirement that they be made through the clerk of the district court, when that can be done without injustice to the divorced mother.

2. Whether Social Security disability benfit payments made to the mother for the support of the parties' children by reason of the father's disability constitute satisfaction of the father's child support obligation under a divorce decree is a question of law to be resolved by the courts, and is not dependent upon the intention of the parties.

3. The purpose of Social Security is the same as that of an insurance policy with a private carrier, wherein a father insures against his possible future disability and loss of gainful employment by providing for the fulfillment of his moral and legal obligations to his children.

4. Where a father who has been ordered to make child support payments becomes totally and permanently disabled, and unconditional Social Security payments for the benefit of the minor children are paid to the divorced mother, the father is entitled to credit for such payments by the government against his liability for child support under a divorce decree to the extent of, but not exceeding, his monthly obligation for child support.

Dale L. Somers, of Eidson, Lewis, Porter & Haynes, Topeka, argued the cause, and was on the brief for the appellant.

No appearance or brief was filed on behalf of the appellee.

SCHROEDER, Justice:

The question here presented, for the first time in Kansas, is whether unqualified Social Security disability payments made for the benefit of minor children because of their father's total disability constitute a satisfaction of child support payments required by a divorce decree.

The uncontroverted facts surrounding this controversy are not complicated and are summarized.

Harold Eugene Andler (defendant-appellant) and Shirley May Andler (plaintiff-appellee were married on August 12, 1956. Three sons were born to this marriage before tragedy struck Harold. On June 22, 1969, an automobile accident resulted in a spinal cord injury which totally disabled Harold, paralyzing him from the chest down.

Thereafter on October 9, 1969, Shirley filed an action for divorce. Harold executed a voluntary entry of appearance and on December 11, 1969, the parties were granted a divorce. The divorce decree granted custody of the three minor children to Shirley. The decree further ordered Harold to pay to Shirley, through the clerk of the district court of Shawnee County, $160 per month for the children's support and maintenance, beginning on January 1, 1970.

Because of his disability Harold is currently unemployed. With the exception of one short period of time he has not been able to draw any salary since the accident. His only source of income has been a $249 per month Social Security disability benefit which he began receiving in January 1970, after his divorce was final. Harold has remarried. He and his present wife have purchased an 80 acre farm which is their homestead. The purchase price was $48,000 with a down payment of $12,000. Of this down payment $3,000 came from Harold and his present wife's savings and the remaining $9,000 came from an informal loan from Harold's mother, to be repaid as he is capable. The farm requires monthly payments of $330 which are made from Harold's $249 per month disability payment, and from his persent wife's salary of $140 per week. They also receive $400 per year from pasture rental, and $80 per month rent from a garlow, when rented.

The Social Security Administration provides benefits for minor children whose parent(s) is (are) disabled. The minor children are cosidered beneficiaries of the benefits earned and paid for by their parents under the Social Security Act. The money given under this program is an unqualified grant of money to be used as the minor's guardian determines. (42 U.S.C.A. 402(d)(1).) In January 1970, one month after the divorce, Shirley commenced receiving for the benefit of the three minor children $221.10 per month disability benefits from the Social Security Administration pursuant to this legislation. These payments were not received, and apparently were not even contemplated, at the time of the divorce. However the $221.10 per month disability benefits which Shirley has consistently received since January 1970 exceeds the $160 per month child support which Harold was ordered to pay in the divorce decree.

Harold, who had consented to the $160 per month child support payments, made four payments in that amount for the months of January, February, March and April of 1970. Thereafter his savings were exhausted and he terminated these payments because he had no money with which to make them. However, as indicated, the $221.10 disability benefits to Shirley for the benefit of the minor children have continued since January 1970.

On August 13, 1973, after accepting $221.10 per month Social Security disability benefits for over three years, Shirley filed a motion in district court for a citation in contempt against Harold for failure to pay child support as decreed and to determine the child support in arrearage.

After hearing the matter the trial court found that no payments were made by Harold since April 1970, as required by the divorce decree and that each of the unpaid installments when due became a judgment against Harold. It did rule that Harold not be found in contempt of court for failure to make the child support payments as ordered on December 11, 1969, and it further ordered that child support payments henceforth be terminated 'for the reason that the plaintiff is receiving Social Security disability payments for the benefit of the minor children of the parties in an amount in excess of that ordered by this court.'

In a memorandum announcing its decision the trial court said:

'The Court is most reluctant to hold that defendant in the instant case is still obligated for the past due and unpaid child support installments. Such a ruling appears to be harsh and bordering on the unconscionable. However, I have reluctantly concluded that this Court posseses no power to change or modify the original order for past due installments for the support of the minor children of the parties.'

In support of the trial court's decision, the appellee contends the mere fact that the children received Social Security payments does not constitute a satisfaction of the child support judgments which were not pernonally paid by the appellant. The appellee further contends that the children were entitled to the Social Security payments by an act of Congress and that their entitlement existed without regard to any support judgment entered by the district court.

The appellant contends the Social Security payments should constitute a satisfaction of the child support judgments, and that it would be inequitable for the court to determine, as a matter of law, that a judgment presently exists for all amounts of child support which were due under the decree and not personally paid by the appellant.

The trial court advanced four reasons for its decision in favor of Shirley, the appellee herein. One reason was that the payments were not made through the clerk of the district court as directed. Generally speaking, a divorced father is required to make child support payments as directed by the district court in the divorce decree, and he should not be permitted to vary the terms of the decree or the manner of payment to suit his covenience, or otherwise disregard the court's order. (Ediger v. Ediger, 206 Kan. 447, 451, 479 P.2d 823.) Special considerations of an equitable nature, however, may justify a court in crediting child support payments made directly to the wife, to the children or to others on the children's behalf on due and unpaid child support, although made at variance with the technical requirement that they be made through the clerk of the district court, when that can be done without injustice to the divorced mother. (Ediger v. Ediger, supra; Dorsey v. Dorsey, 28 Colo.App. 63, 470 P.2d 581 (1970); Martin v. Martin, 59 Wash.2d 468, 368 P.2d 170 (1962); and Gould v. Awapara, 365 S.W.2d 671 (Tex.Civ.App.1963). See also, 27B C.J.S. Divorce § 321(1), p. 636; and Annot., 47 A.L.R.3d 1041 (1973).) But payments made in excess of amounts required to be made for child support are considered gratuitious. (Ediger v. Ediger, supra.)

In Ediger payments were to be made through the clerk of the district court. In weighing the equities the court held that failure to strictly observe the requirement of payment through the clerk of the district court did not prevent the divorced father from receiving credit. The payments made to the daughter in college were held to constitute substantial compliance with the support order.

The trial court's conclusion that a judgment for the appellee 'appears to be harsh and bordering on the unconscionable' leaves no doubt that the equities here lie in favor of the appellant. The appellee received $221.10 per month for a period of 41 months from May 1970, to September 1973, totaling $9,065.10, against and in satisfaction of child support payments of $160 per month for the same period, totaling $6,560, plus accrued interest. (But see, Cohen v. Cohen, 246 So.2d 581 (Fla.Ct. App.1971), ...