Com., Dept. of Social Services, Div. of Child Support Enforcement ex rel. Comptroller of Virginia v. Skeens

• Decision Date: 05 April 1994
• Docket Number: No. 2427-92-3,2427-92-3
• Parties: COMMONWEALTH of Virginia, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, Ex Rel. COMPTROLLER OF VIRGINIA v. Danny SKEENS. Record
• Court: Virginia Court of Appeals

Page 432

442 S.E.2d 432

18 Va.App. 154

COMMONWEALTH of Virginia, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, Ex Rel. COMPTROLLER OF VIRGINIA v. Danny SKEENS.

Record No. 2427-92-3.

Court of Appeals of Virginia.

April 5, 1994.

Donnie W. Salyers, Sp. Counsel (Betsy S. Elliott, Sr. Sp. Counsel, on brief), for appellant.

Sherry Lee Wilson, Castlewood (Client Centered Legal Services of Southwest Virginia, Inc., on brief), for appellee.

Present: MOON, C.J., and COLEMAN and WILLIS, JJ.

COLEMAN, Judge.

In this appeal, the Division of Child Support Enforcement of the Virginia Department of Social Services (Department) contends that Social Security disability benefits ¹ payable to the dependent children of Danny Skeens, a disabled worker, should not be treated or credited as support payments to satisfy an arrearage in his court-ordered support. The Department argues that Social Security payments are a form of insurance payable to a designated beneficiary or a statutory entitlement payable to a disabled employee's dependents for which the parent should not receive credit toward a court-ordered child support obligation. We hold that a dependent's Social Security disability benefits, although constituting an independent entitlement, are in the nature of support made in lieu of a disabled employee's earnings. ² However, whether the trial court credits the payment against an arrearage for court-ordered support depends upon the circumstances of each case and rests in the sound discretion of the trial judge. In the case of Danny Skeens, we hold that the trial court did not abuse its discretion, under the circumstances, in crediting the accumulated Social Security benefits payable to his dependent children against his court-ordered support arrearage.

In 1986, the trial court had held Danny Skeens in contempt for failing to pay court-ordered child support. At the time, the court ordered Skeens to pay $200 per month child support and $100 per month on an accumulated arrearage of $8,261.97. The record does not show whether the order to pay $200 per month was a continuation or modification of the amount of the previous award. The trial judge told Skeens in 1986 that "no further delinquencies will be tolerated and any change in circumstances must immediately be followed up with a petition to decrease or contempt sanctions will be imposed." Skeens was told "to immediately notify the court of any change in employment, layoff, reduction in wages or hours worked." At the time, Skeens apparently was disabled and receiving workers' compensation benefits.

Skeens never returned to gainful employment after 1986 because he was totally and permanently disabled. In January, 1988, Skeens's workers' compensation benefits ended, and he began receiving Social Security disability benefits, which were his sole source of income. The record is silent as to whether Skeens had any other assets. After Skeens began receiving Social Security benefits, he did not notify the court that his circumstance had changed, nor did he petition for a modification of his support obligation.

Skeens's court-ordered obligation to pay $200 a month in child support ended in September, 1991, when his youngest child became eighteen. At that time, Skeens was in arrears in the amount of $14,017.14. The Department, which had been paying Skeens's former wife aid to dependent children, issued a mandatory withholding of earnings order directed to the Social Security Administration to collect the support arrearage by withholding a designated amount from Skeens's monthly Social Security benefits. ³ Skeens petitioned the court to quash the withholding order and to determine the arrearage and, in doing so, to allow him credit for $7,086.10, the amount that the Social Security Administration had paid to his children in dependents' benefits on account of his disability. The circuit court denied the motion to quash, but ruled that "equity dictates that Mr. Skeens receive credit for these benefits." The court credited the entire $7,086.10 that had been paid to the children against the $14,017.14 arrearage and declared the balance in arrears to be $6,931.04. ⁴

The Department contends that the trial court's ruling is error because it, in effect, amounts to a retroactive modification of the child support order and a modification of a vested final judgment.

Child support payments required under a valid court order become vested as they accrue, and the court is without authority to make any change as to past due installments. Cofer v. Cofer, 205 Va. 834, 838-39, 140 S.E.2d 663, 666-67 (1965); Code § 20-112. Generally, the terms of a support decree must be strictly complied with and payments made when due to the designated payee in accordance with the terms of the decree. See Fearon v. Fearon, 207 Va. 927, 930-31, 154 S.E.2d 165, 167 (1967); Newton v. Newton, 202 Va. 515, 518, 118 S.E.2d 656, 658 (1961). When changed circumstances dictate a modification of a support decree, the appropriate remedy is for the party to petition the court to modify the decree. The party or parties may not unilaterally or bilaterally vary its terms. Id.

However, although a court may not retroactively modify a child support obligation, allowing a payor spouse credit for non-conforming support payments, in the limited situations where permitted, is not a modification of a support order. See Acree v. Acree, 2 Va.App. 151, 152, 342 S.E.2d 68, 69 (1986). A court may, when equitable and under limited circumstances, allow a party credit for non-conforming support payments, provided that the non-conforming payment substantially satisfies the purpose and function of the support award, see Acree, 2 Va.App. at 152, 342 S.E.2d at 69, and to do so does not vary the support award. The payment of money to the child's custodian in the form of Social Security payments is an indirect payment from the obligor parent for which the parent should receive credit. See supra, note 2. However, whether the obligor parent is entitled to credit for such payments against an accumulated arrearage presents a different problem and will depend upon a number of factors.

Other jurisdictions which have held that Social Security benefits are to be credited against a support award have based their holdings on the view that the purpose of a child support order is satisfied when Social Security disability benefits are paid to a dependent child. Regardless of the source of payment, if the child support is paid, the order is satisfied, and the parent on whose account payment is made should receive credit. "The use of Social Security payments to satisfy a child support obligation is merely a change in the manner of payment; the nature of the funds is the same." McClaskey v. McClaskey, 543 S.W.2d 832, 834 (Mo.Ct.App.1976). See also Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200, 201 (1963); Davis v. Davis, 141 Vt. 398, 449 A.2d 947, 948 (1982); Potts v. Potts, 240 N.W.2d 680, 682 (Iowa 1976).

Of those jurisdictions that have disallowed a credit, most have done so on the theory that application of Social Security payments to reduce a child support arrearage constitutes a retroactive modification of the child support award. See, e.g., Chase v. Chase, 74 Wash.2d 253, 444 P.2d 145, 149-50 (1968); Moritz v. Moritz, 368 N.W.2d 337, 341-42 (Minn.Ct.App.1985); Re Marriage of Cope, 49 Or.App. 301, 619 P.2d 883, 889 (1980). We consider this latter approach to be unsound.

When a trial court grants credit to a payor parent for...