Estate of Patterson, Matter of

• Decision Date: 29 January 1991
• Docket Number: No. 1,CA-CV,1
• Citation: 805 P.2d 401,167 Ariz. 168
• Parties: In the Matter of the ESTATE OF Roy C. PATTERSON, Deceased. Billie J. SHAW, Creditor-Appellant, v. Rovena QUAINTANCE, Personal Representative-Appellee. 89-341.
• Court: Arizona Court of Appeals

Page 401

805 P.2d 401

167 Ariz. 168

In the Matter of the ESTATE OF Roy C. PATTERSON, Deceased.

Billie J. SHAW, Creditor-Appellant, v. Rovena QUAINTANCE, Personal Representative-Appellee.

No. 1 CA-CV 89-341.

Court of Appeals of Arizona,

Division 1, Department C.

Jan. 29, 1991.

[167 Ariz. 169] Law Office of Charles L. Arnold, P.C. by Charles L. Arnold, Phoenix, for creditor-appellant.

Robert Mothershead, P.C. by Robert C. Mothershead and Dan Saint, Phoenix, for personal representative-appellee.

OPINION

JACOBSON, Judge.

The primary issue in this appeal is whether a custodial mother's claim for child support arrearages against the estate of her deceased former spouse should be offset by the amount of social security and veteran's benefits the mother received on behalf of the children during decedent's lifetime.

Appellant, Billie J. Shaw (creditor), appeals from the trial court's order granting summary judgment in favor of appellee, Rovena Quaintance (personal representative), thereby denying the creditor's claim against the estate of her former spouse, Roy Patterson (decedent), for unpaid child support. The trial court also awarded attorneys' fees to the personal representative pursuant to A.R.S. § 12-341.01. We reverse and remand based on our finding that the undisputed facts do not support, as a matter of law, the estate's entitlement to a credit for the federal benefits received by the creditor against the decedent's liability for child support arrearages.

FACTUAL AND PROCEDURAL BACKGROUND

The decedent and the creditor were divorced on October 5, 1970. Custody of the couple's three minor children was granted to the creditor. At the time of the divorce, decedent was totally disabled, and his income consisted only of federal disability benefits and state retirement income. The divorce decree ordered decedent to pay child support as follows:

Based upon [decedent's] monthly payments from the Veteran's Administration of $1,068.00 plus Arizona Teachers Retirement payments and Social Security payments, [decedent] is ordered to pay to [the creditor], through the Clerk of the Maricopa County Superior Court, the sum of $450.00 per month as and for child support, such sum being comprised of child support payment in the amount of $150.00 per month for each of the three children of this marriage, which $150.00 payment is to continue until the death or emancipation of each such child, ... payable on or before the first of each month, commencing September 1, 1970.

The parties do not dispute that decedent did not make any support payments after November 1, 1970.

On July 9, 1971, decedent, through his then wife, Beatrice Patterson, filed a "Statement in Support of Claim" with the Veteran's Administration (V.A.), advising it of his court-ordered child support obligation, and requesting, "we would very much like for you to make the apportionment of my husbands [sic] benefits to his children directley [sic] to his ex-wife ... [t]he sum of $450.00 ... so as we don't want to be behind payment to the children." Nothing in the record indicates whether this claim was approved, or whether decedent's personal veteran's disability benefits were reduced as a result of such an apportionment. Nor does the record indicate whether the benefits decedent was receiving from V.A. or social security at the time of the decree included any amount attributable to his having three children.

The record does reveal that on November 1, 1971, the creditor began receiving V.A. benefits on behalf of the children as a result of decedent's disability, with a monthly allotment for each child which varied over the years and which terminated as each child turned eighteen. ¹ She also received social security benefits on behalf of the children as a result of decedent's disability; however, the record does not establish when these payments began, their exact amounts, or the reason the payments were forthcoming. ²

After decedent died on April 9, 1987, the personal representative was appointed. On September 28, 1987, the creditor filed a claim against the estate for the unpaid child support, plus interest, accrued from November 1, 1970, to March 8, 1985, the date the youngest child turned eighteen. ³ The creditor claimed the following amounts were due:

After the personal representative disallowed the claim, the creditor petitioned the court for relief. See generally A.R.S. § 14-3806. The personal representative moved for summary judgment, arguing that any child support decedent owed the creditor should be offset by the federal disability benefits that were paid to the creditor on behalf of the children. The trial court granted summary judgment in favor of the personal representative and awarded the estate its attorneys' fees of $14,470.30. The creditor timely appealed.

DISCUSSION

Rule 56(c), Arizona Rules of Civil Procedure, allows summary judgment only "if the pleadings, deposition[s], answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." No disputed facts exist in this case; rather, the dispute involves an issue of law because of the absence of facts. Therefore, we are required to make an independent determination whether, on the basis of the record presented to the trial court, summary judgment was appropriate. Arizona Laborers, Teamsters & Cement Masons Local 395 Health & Welfare Trust Fund v. Hatco, Inc., 142 Ariz. 364, 368, 690 P.2d 83, 87 (App.1984).

A. Absence of Modification Proceedings

The creditor first argues that, by granting summary judgment, thereby allowing the estate to credit the disability benefits received by the creditor on behalf of the children against decedent's support obligation, the trial court in effect allowed a retroactive modification of the decree. We agree.

Arizona recognizes the rule that child support orders may not be altered retroactively. Lamb v. Superior Court, 127 Ariz. 400, 402, 621 P.2d 906, 908 (1980); Hatch v. Hatch, 113 Ariz. 130, 134, 547 P.2d 1044, 1048 (1976). The restrictions imposed upon modifications of child support orders are as follows:

A. Except as otherwise provided ... the provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to notice of the motion for modification to the opposing party and only upon a showing of changed circumstances which are substantial and continuing....

A.R.S. § 25-327(A).

The personal representative does not dispute that decedent never initiated any proceedings to modify his divorce decree, or that decedent allowed the decree ordering him to pay $150.00 per child per month to remain in force against him even after the creditor began receiving the children's benefits. ⁴ The credit his estate now seeks would, in effect, require a judicial determination that the federal disability payments on behalf of the children released him from any additional support obligation, retroactive to November 1, 1970.

In the absence of a court order modifying the decree, a custodial parent's receipt of federal benefits on behalf of the children should not automatically reduce the amount of the noncustodial parent's court-ordered child support obligation. We agree with those jurisdictions that have held, as a general rule, that a noncustodial parent may not reduce or eliminate his child support obligation because of federal benefits paid to the custodial parent without requesting that the court modify the decree. See, e.g., Chase v. Chase, 74 Wash.2d 253, 444 P.2d 145, 149 (1968); Guthmiller v. Guthmiller, 448 N.W.2d 643 (N.D.1989); Burnham v. Burnham, 743 S.W.2d 568 (Mo.App.1987). This rule is supported by the public policy that requires courts, and not the parties, to fix the amount of child support. See Hepton v. Hepton, 25 Wash.App. 229, 605 P.2d 1288, 1289 (1980); accord Craver v. Craver, 649 S.W.2d 440, 445 (Mo.1983). We therefore hold that decedent was not entitled as a matter of law to an automatic credit against the child support arrearages. Whether such a credit is factually available will next be explored.

B. Equitable Considerations

Although applying a credit to child support arrearages in the absence of modification proceedings is not allowed as a matter of law, we realize that equitable considerations may justify a court allowing an offset against a past support obligation. For example, the Arizona Supreme Court has refused to allow an ex-wife to collect court-ordered child support from her ex-husband for a time period in which he had physical custody of the child. Cole v. Cole, 101 Ariz. 382, 420 P.2d 167 (1966). The Cole court disallowed the claim even though the child support order was not modified after the husband obtained custody of the child. The court noted that the spirit of the decree had been complied with, and acknowledged that "[i]t would certainly be inequitable to allow [the ex-wife] to collect money for support of a child during the time [the ex-husband] was actually supporting him." Id. at 384, 420 P.2d at 169.

In an earlier case, the supreme court refused to allow a mother to collect past-due support payments for a period of time in which her minor daughter was married and no longer in her custody, although the decree had not been modified to terminate the father's obligation to pay support until the child's majority. Crook v. Crook, 80 Ariz. 275, 296 P.2d 951 (1956). The court reasoned:

The equities of natural justice in a given situation may turn a court of conscience away from the cold realm of technical legalism, whereby the court will not allow the prima facie wording of its decree to defeat the justice and propriety of an exemption from the duty therein imposed.

Id. at 278, 296 P.2d at 952-53. We thus address the question "whether it is fair and just that the support obligor be given credit for these benefits."...