Duke v. Richards

Decision Date02 July 2004
Docket NumberNo. 31670.,31670.
Citation600 S.E.2d 182,215 W.Va. 470
CourtWest Virginia Supreme Court
PartiesBarry M. DUKE, Plaintiff Below, Appellant, v. Patricia Dawn RICHARDS Defendant Below, Appellee.

Paul G. Taylor, Esq., Martinsburg, for the Appellant.

James P. Martin, Esq., Charleston, for the Appellee.

STARCHER, Justice.

In this appeal from the Circuit Court of Berkeley County, which affirmed an order of the Family Court of Berkeley County, we are asked to review an order refusing to give an obligor parent credit, against a current child support obligation or against past child support arrearages, for amounts received by a minor child from the United States Department of Veterans Affairs as a result of the obligor parent's disability.

As set forth below, we reverse the circuit court's order and remand the case to the Family Court of Berkeley County for further proceedings.

I. Facts & Background

The appellant, Barry M. Duke, and the appellee, Patricia Dawn Richards, lived together in Colorado while Mr. Duke served in the United States Army. On December 10, 1993, a child, Tyler W. Duke, was born of this relationship. After the relationship ended, Ms. Richards moved to Berkeley County, West Virginia with Tyler, and Mr. Duke initiated proceedings seeking custody of Tyler. However, Ms. Richards was granted custody of Tyler in 1997, and Mr. Duke was ordered to pay child support of $273.00 per month to Ms. Richards.

During this time period, Mr. Duke was honorably discharged from the United States Army. Mr. Duke's employment was intermittent after his discharge because of physical and mental health issues connected with his military service in the Gulf War. Because of his sporadic employment, Mr. Duke failed to pay his child support obligation with regularity and fell into arrears.1 On May 3, 2000, the Department of Veterans Affairs found Mr. Duke to be unemployable because of his service-connected health issues and awarded him 100% disability benefits.2 At approximately the same time, the record suggests that the Social Security Administration also found Mr. Duke to be totally disabled, and began paying him disability benefits. Mr. Duke asserts that, currently, his sole income is in the form of disability benefits from these two agencies.

Both the Social Security Administration and the Department of Veterans Affairs pay a portion of Mr. Duke's disability benefits directly to Tyler. Tyler currently receives approximately $80.00 per month from the Social Security Administration. In addition, the Department of Veterans Affairs appears to have paid to Tyler $63.00 per month from December 1998 through September 1999, and since October 1999 has paid $100.00 per month. In May 2002, Mr. Duke filed a petition to modify his child support obligation. In his petition, Mr. Duke asked the family court for credit against his current child support obligation, as well as his past child support arrearages,3 for the amounts paid to Tyler by the Department of Veterans Affairs.

The parties agree that Mr. Duke has received a dollar-for-dollar credit against his child support obligation for the amounts paid to Tyler by the Social Security Administration. This is in accord with W.Va.Code, XX-XX-XXX(a) [2001], which states that any "amount of the social security benefits sent directly to the child's household will be subtracted from the child support order."4

However, the statutes regarding the calculation of child support make no mention of benefits paid by the Department of Veterans Affairs on account of an obligor's disability. Accordingly, on March 11, 2003, the family court entered an order that denied Mr. Duke's request for a credit against his child support obligations for the amounts paid to Tyler by the Department of Veterans Affairs.

Mr. Duke then submitted a petition for appeal to the circuit court. On April 30, 2003, the circuit court issued a one-sentence ruling announcing that Mr. Duke's petition was denied.5

Mr. Duke now appeals the March 11, 2003 order of the family court denying Mr. Duke a credit against his current child support obligation and his past child support arrearages for sums paid on his behalf directly to Tyler from the United States Department of Veterans Affairs.

II. Standard of Review

We recently established our standard review for cases appealed from a family court, setting forth a three-pronged test used to evaluate such cases:

In reviewing challenges to findings made by a family court judge that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

Syllabus Point 2, Lucas v. Lucas, 215 W.Va. 1, 592 S.E.2d 646 (2003). With this standard in mind, we review the parties' arguments.

III. Discussion

The legal issue presented by the parties in this case is simple: should a parent who is subject to a child support obligation be given credit against that obligation for payments made by the Department of Veterans Affairs to the child or the child's custodian because of the parent's disability? We think so.

The general rule applied by most courts in domestic relations cases is that if a child, or the child's custodian, receives a governmental benefit that is in some sense generated by the efforts or qualifications of the child's non-custodial parent, the non-custodial parent is entitled to a credit for the benefit against any child support obligation owed by that non-custodial parent. Courts generally hold that "the payments should properly be regarded as a substitute for support payments from the obligor's own earnings ... [but] qualify their holdings by saying that a credit will not be available if the result is clearly inequitable." Annotation, "Right to Credit on Child Support Payments for Social Security or Other Government Dependency Payments Made for Benefit of Child," 34 A.L.R.5th 447, 464 § 2[a] (1995). See also, "Generally; Sums Paid by Government Benefit or Assistance Programs," 24A Am. Jur.2d, Divorce and Separation § 1066, at 472 (2004) ("There is also a rebuttable presumption that an obligor spouse is entitled to a credit against child support obligations for amounts paid as Social Security or other Federal Government benefits for support of his or her child.").

We recognized this principle in Farley v. Farley, 186 W.Va. 263, 412 S.E.2d 261 (1991) in the context of benefits paid by the Social Security Administration as a result of a father's disability. In Farley, a father was ordered to pay $150.00 per month to the mother of his two children, as support for the children. After the father became disabled in 1986, he paid support sporadically and accrued arrearages, but "continued to make payments when he could." 186 W.Va. at 264, 412 S.E.2d at 262. In 1989, the Social Security Administration ruled that the father was totally disabled as of May 1986, and issued two lump sum checks for past benefits: one to the father, and another to the mother for the two dependent children.

In Farley, we found that "it is easy to conclude that social security disability benefits should be viewed as credits toward a parent's child support payments," but found that the more difficult question was whether the father was entitled to credit the lump-sum check received by the mother against his child-support arrearages. 186 W.Va. at 266, 412 S.E.2d at 264. We recognized the general rule that "support payments can be modified only prospectively and not retrospectively," but also recognized that the average litigant "is not the type of person who consults his lawyer on a daily basis to make sure that his life is lived in conformity with the headnotes in our latest advance sheets." Id.

We therefore adopted an equitable rule in Farley, holding that

... when the Social Security Administration awards a lump sum payment to the caretaker of dependent children, a court may credit the amount received to any accrued arrearages, but is not required to do so.... [W]e allow direct social security payments to be credited to the debtor spouse against arrearages, but it is the obligation of the debtor spouse to seek court approval for such credit and to seek a new court order concerning child support that takes into consideration, if warranted, social security's monthly payments....
The great weight of authority is that social security back pay awards are credits against child support arrearages when the disabled debtor has operated in good faith and there are no other extraordinary circumstances that would militate in favor of a different result.

Id.

We therefore established in Farley the rule that a disabled obligor was presumptively entitled to a credit against a child support obligation for social security disability benefits received by the child, but the disabled obligor bore the burden of acting in good faith and promptly obtaining court recognition of those disability benefits. In the absence of prompt court approval, we left to the court the discretion to determine whether or not equity required that disability benefits paid in the past or lump-sum benefits should be credited against past arrearages. We stated, at Syllabus Points 1 and 2 of Farley:

1. Social security is similar to a private insurance contract and benefits paid to dependents directly are presumptively credits against the insured's support obligation; however, to receive credit a debtor spouse must immediately make a motion before the circuit court to have such benefits credited against arrears and to have a new court order governing future payments that take social security benefits into account.
2. In the single instance of benefits paid to dependents directly by the Social Security Administration,
...

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    • United States
    • Colorado Court of Appeals
    • December 17, 2020
    ...Ladson v. Maxey , No. 43733-3-II, 2014 WL 2601701, at *2-3 (Wash. Ct. App. June 10, 2014) (unpublished opinion); Duke v. Richards , 215 W.Va. 470, 600 S.E.2d 182, 188 n.9 (2004).¶ 30 All told, at least twenty-four states and the District of Columbia treat veteran's disability benefits as in......
  • Thompson v. Thompson
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    ...That said, we have not found any Nebraska authority which directly addresses this precise issue. However, in Duke v. Richards, 215 W.Va. 470, 600 S.E.2d 182 (2004), the court concluded that the father was entitled to credit against his current child support obligation for payments made by t......
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    ...holding was codified by the Legislature in West Virginia Code § 48-13-603(a) ) (emphasis added); see also Syl. Pt. 4, Duke v. Richards , 215 W. Va. 470, 600 S.E.2d 182 (2004) ("Any payments of disability benefits made to a child's household by the Department of Veterans Affairs as a result ......

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