Board v. Board, 84-SC-402-DG
| Decision Date | 11 April 1985 |
| Docket Number | No. 84-SC-402-DG,84-SC-402-DG |
| Citation | 690 S.W.2d 380 |
| Parties | Marsha A. BOARD, Movant, v. Danny BOARD, Deceased, Gordon Board and Bernett Board, as Co-Executors, Personal Representatives of Danny Board, Respondents. |
| Court | United States State Supreme Court — District of Kentucky |
Paul M. Lewis, Dwight Preston, Lewis, Bland & Preston, Elizabethtown, for movant.
Bill V. Seiller, Cindy L. Stone, Louisville, Robert Riley, Robert A. Miller, Brandenberg, for respondents.
This appeal is from a decision of the Court of Appeals which affirmed a judgment of the circuit court determining that the estate of a deceased father with support obligations was entitled to a credit on social security benefits paid for child support as a result of his death.
The issue is whether the trial court erred in crediting social security payments against child support and the underlying issue is whether a motion for modification pursuant to KRS 403.250 must be made prior to a crediting of social security against child support payments.
Pursuant to a property settlement agreement in the dissolution of the marriage of Danny and Marsha Board, the father agreed to pay the wife $200 a week for the support of their two minor children. The father died three months after the divorce and since his death, the mother, in addition to other benefits, has received $370 per month per child from the father's social security benefits.
Stressing that the wife would receive an unreasonable windfall if she were permitted to receive both child support and social security benefits, the Court of Appeals held that the father's estate was entitled to a credit for the amount of social security. In answer to the wife's argument that such a credit would improperly modify the divorce agreement, the Court of Appeals decided that not permitting a credit would actually modify the agreement.
This Court affirms the judgment of the circuit court and the decision of the Court of Appeals. KRS 403.250 is not the exclusive method to consider the application of social security benefits against child support liability.
Kentucky follows the prevailing view of most jurisdictions in the United States in that government benefits in the form of social security for child support may be credited against the parent's liability under the decree or agreement of settlement. Hamilton v. Hamilton, Ky.App., 598 S.W.2d 767 (1980). See, Annot., Right to Credit on Child Support Payments for Social Security or other Government Dependency Payments Made for Benefit of Child, 77 A.L.R.3d 1315 (1977). The trial judge's finding that the social security benefits were a set-off against child support was within the court's discretion. To do so is not a "modification" as defined by KRS 403.250.
The result is the same whether the child support credit is made pursuant to KRS 403.250(1), that is, a motion to modify child support, or whether it is made as in this case, in defense of a motion for arrearage. There is a distinction between crediting an obligation with payment made from another source and increasing, decreasing or terminating, or otherwise modifying a specific dollar amount.
Here the estate is liable for $866.67 per month as child support. The social security benefits pay a certain amount and the estate remains primarily liable on the entire obligation. The social security benefits are not gratuitous. The husband, through his employment, paid social security taxes and those payments are now generating the replacement of some of the support obligation. Should the social security benefits be changed, the mother or custodian can look to the estate for satisfaction of the basic obligation which remains intact. There is no difference in the amount of payment for child support. The only change is the source of those payments.
Keplinger v. Keplinger, Ky., 610 S.W.2d 618 (1981), is not...
To continue reading
Request your trial
-
Brewer v. Brewer
...payments to minor child). In two cases similar to the one now before us, Bowden v. Bowden, 426 So.2d 448 (Ala.App.1983), and Board v. Board, 690 S.W.2d 380 (Ky.1985), the existence of separation agreements did not abrogate the noncustodial parent's right to credit Social Security In Bowden,......
-
Todd v. Norman
...182, 269 S.E.2d 453 (1980); Potts v. Potts, 240 N.W.2d 680 (Iowa 1976); Andler v. Andler, 217 Kan. 539, 538 P.2d 649 (1975); Board v. Board, 690 S.W.2d 380 (Ky.1985); Folds v. Lebert, 420 So.2d 715 (La.Ct.App.1982); Cohen v. Murphy, 368 Mass. 144, 330 N.E.2d 473 (1975); Mooneyham v. Mooneyh......
-
Marriage of Henry, In re
...parent satisfied such parent's child support obligation. (See Hanthorn v. Hanthorn (1990), 236 Neb. 225, 460 N.W.2d 650; Board v. Board (Ky.1985), 690 S.W.2d 380; Justice v. Scruggs (1985), 286 S.C. 165, 332 S.E.2d 106; Bowden v. Bowden (Ala.Civ.App.1983), 426 So.2d 448; In re Marriage of M......
-
Pontbriant v. Pontbriand
...426 So.2d 448 (Ala.Civ.App.1983) (applying North Carolina law); In re Marriage of Meek, 669 P.2d 628 (Colo.Ct.App.1983); Board v. Board, 690 S.W.2d 380 (Ky.1985); Cohen v. Murphy, 368 Mass. 144, 330 N.E.2d 473 (1975). In these states, direct credit is given to the decedent's estate for deat......