Brewer v. Brewer

• Decision Date: 17 December 1993
• Docket Number: No. S-91-674,S-91-674
• Citation: 244 Neb. 731,509 N.W.2d 10
• Parties: Kathleen M. BREWER, Appellant, v. Thomas E. BREWER, by Substituted Parties, Thomas M. Maul, as Personal Representative of the Estate of Thomas E. Brewer, and Wayne E. Grachek, as Trustee of the Thomas E. Brewer Testamentary Trust, Appellees.
• Court: Nebraska Supreme Court

Page 10

509 N.W.2d 10

244 Neb. 731

Kathleen M. BREWER, Appellant, v. Thomas E. BREWER, by Substituted Parties, Thomas M. Maul, as Personal Representative of the Estate of Thomas E. Brewer, and Wayne E. Grachek, as Trustee of the Thomas E. Brewer Testamentary Trust, Appellees.

No. S-91-674.

Supreme Court of Nebraska.

Dec. 17, 1993.

Syllabus by the Court

1. Modification of Decree: Child Support: Appeal and Error. Modification of child support is an issue entrusted to the discretion of the trial court, and although reviewed de novo on the record, the decision of the trial court will be affirmed absent an abuse of discretion.

2. Judges: Words and Phrases: Appeal and Error. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

3. Appeal and Error. A claimed prejudicial error must not only be assigned, but must be discussed in the brief of the asserting party.

4. Child Support: Death: Social Security. Social Security payments made to an obligor's child on account of the obligor's death are to be considered as credits toward the obligor's court-ordered support obligation, absent circumstances making allowance of such credit inequitable.

John K. Green, Omaha, for appellant.

Clark J. Grant, Grant, Rogers, Maul & Grant, Columbus, for appellees.

HASTINGS, C.J., BOSLAUGH, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and GRANT, J., Retired.

CAPORALE, Justice.

I. STATEMENT OF CASE

A decree dissolving the marriage of the appellant mother, Kathleen M. Brewer, ordered the father, Thomas E. Brewer, to make a monthly support payment for their minor daughter, Ashley JoAnne. As a result of the father's subsequent death, the appellees, the father's estate and testamentary trust, as the parties substituted in place of the father, seek to credit against their respective child support liabilities the benefits being paid on behalf of the daughter under the provisions of the federal Social Security Act, 42 U.S.C. § 301 et seq. (1988 & Supp. III 1991). Following an evidential hearing, the district court so ordered. The mother assigns that ruling as her sole operative error. We affirm.

II. FACTS

The dissolution decree ordered the father to pay $500 per month in child support. This requirement was in accordance with the stipulated agreement of the mother and father, which was incorporated into the decree. The agreement recited it to be the intention of the dissolution parties that the agreement be a full, final, and complete settlement of all matters in dispute between them, and required the father to maintain a term policy of insurance on his life, payable to the daughter equal to the amount of child support which would have accrued through her 19th birthday. The agreement also required the father to maintain an otherwise undefined "health and accident insurance" policy on the daughter.

The father thereafter executed a will, which placed his assets in trust should he die before the daughter attained the age of majority. The trust requires that the trustee pay the court-ordered child support. The will provides for distribution of one-half of the total of the trust fund to the daughter when she reaches the age of 21 and disbursement of the balance upon her attaining age 25. Should the daughter die before distribution of all the assets, the assets are to be paid to a designated charity.

Although the father purchased two term life insurance policies, they were payable to the trust, not to the daughter. The record does not tell us whether the father did or did not provide a health and accident policy of any description for the daughter.

III. SCOPE OF REVIEW

Modification of child support is an issue entrusted to the discretion of the trial court, and although reviewed de novo on the record, the decision of the trial court will be affirmed absent an abuse of discretion. Lodden v. Lodden, 243 Neb. 14, 497 N.W.2d 59 (1993).

A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Wulff v. Wulff, 243 Neb. 616, 500 N.W.2d 845 (1993).

IV. ANALYSIS

We note at the outset of our analysis that the mother assigned two errors not mentioned in part I above. One relates to the order in which the district court ruled on the revivor of this action; the other deals with the date on which the district court ordered the credit to take effect. However, in her brief she failed to argue either of these claimed errors.

To be considered by an appellate court, a claimed prejudicial error must not only be assigned, but must be discussed in the brief of the asserting party. Neb.Ct.R. of Prac. 9D(1)d (rev. 1992). See, also, Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 507 N.W.2d 465 (1993); Delicious Foods Co. v. Millard Warehouse, 244 Neb. 449, 507 N.W.2d 631 (1993); Maack v. School Dist. of Lincoln, 241 Neb. 847, 491 N.W.2d 341 (1992).

Consequently, we do not concern ourselves with the mother's unargued claims of error, but limit ourselves to a review of her claim that the estate and trust are not entitled to credit for the Social Security benefits paid on behalf of the daughter at the rate of $832 per month.

1. OTHER JURISDICTIONS

The majority of jurisdictions hold that a child support obligor is entitled to credit for Social Security benefits paid for a child's benefit on account of the obligor's disability. See, Windham v. State ex rel. Windham, 574 So.2d 853 (Ala.Civ.App.1990); Binns v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (1976); Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200 (1963); Faul v. Faul, 548 So.2d 957 (La.App.1989); Folds v. Lebert, 420 So.2d 715 (La.App.1982).

(a) General Rationale

Some courts allow the obligor to make a unilateral reduction in the payment without any action by the court. See, Binns v. Maddox, supra; Andler v. Andler, 217 Kan. 538, 538 P.2d 649 (1975); Cohen v. Murphy, 368 Mass. 144, 330 N.E.2d 473 (1975); Mooneyham v. Mooneyham, 420 So.2d 1072 (Miss.1982). Most courts, however, require a noncustodial parent to seek a modification of the decree to reduce or eliminate the child support obligation because of Social Security benefits paid to the custodial parent.

Hence, in Chase v. Chase, 74 Wash.2d 253, 444 P.2d 145 (1968), the Supreme Court of Washington held that the onset of disability and the resulting entitlement to Social Security are changes in the condition of the parties to be considered in a modification proceeding, and the receipt of Social Security benefits does not give rise to a deduction absent affirmative action by the court. Therefore, other changes in the economic conditions of the parties would affect the amount of deduction permitted. Other courts have followed this rule. See, In re Marriage of Robinson, 651 P.2d 454 (Colo.App.1982) (disability and resulting entitlement to Social Security are changes in condition of parties to be considered in support modification proceedings, and credit to be allowed by trial court is discretionary, not automatic); Newman v. Newman, 451 N.W.2d 843 (Iowa 1990) (burden of seeking modification of support order rightfully lies with parent who seeks to offset support obligation against Social Security benefits); Hendricks v. Hendricks, 594 So.2d 1129 (La.App.1992) (justice or equity will not nullify or reduce alimony or child support award until judgment is altered or amended by operation of law); Gerlich v. Gerlich, 379 N.W.2d 689 (Minn.App.1986) (child's receipt of Social Security benefits from account of parent charged with support does not constitute payment from that parent but may constitute change of circumstances and grounds for modification of support order); Moritz v. Moritz, 368 N.W.2d 337 (Minn.App.1985) (receipt of Social Security dependent benefits is change of circumstances and factor to be considered in modification hearings); Burnham v. Burnham, 743 S.W.2d 568 (Mo.App.1987) (burden of seeking modification of support obligation rests on retired or disabled parent seeking to substitute Social Security benefits for amount owed under divorce decree); Cope and Cope, 49 Or.App. 301, 619 P.2d 883 (1980), decision aff'd 291 Or. 412, 631 P.2d 781 (1981) (father's sua sponte deduction of child's Social Security benefits from decreed support obligation barred by statute; rather, changes in father's obligation to pay support should be made only with approval of court upon showing of changed circumstances); In re Marriage of Hughes, 69 Wash.App. 778, 850 P.2d 555 (1993) (under appropriate circumstances obligor parent may be entitled to equitable offset provided there is no unfairness to custodial parent); Hepton v. Hepton, 25 Wash.App. 229, 605 P.2d 1288 (1980) (receipt of Social Security by child does not give rise to an automatic reduction of parent's support payment; it is one circumstance for court to consider in deciding whether to modify support award).

Although by far, most of the cases in which courts have allowed an offset against child support have been for Social Security disability benefits, other state courts allow an obligor to offset court-ordered child support by Social Security retirement benefits. See, Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962); Bradley v. Holmes, 561 So.2d 1034 (Miss.1990); McClaskey v. McClaskey, 543 S.W.2d 832 (Mo.App.1976); Mask v. Mask, 95 N.M. 229, 620 P.2d 883 (1980).

The rationale for both types of payment is the recognition of the presumed decline in income. As the court pointed out in Potts v. Potts, 240 N.W.2d 680 (Iowa ...