Gibson v. Gibson, Docket No. 53979

• Decision Date: 21 October 1981
• Docket Number: Docket No. 53979
• Citation: 313 N.W.2d 179,110 Mich.App. 666
• Parties: Roberta J. GIBSON, Plaintiff-Appellee, Cross-Appellant, v. Earl J. GIBSON, (Estate of Earl J. Gibson, Deceased, through his Personal Representative, Rita T. Gibson), Defendant-Appellant, Cross-Appellee. 110 Mich.App. 666, 313 N.W.2d 179
• Court: Court of Appeal of Michigan — District of US

Page 179

313 N.W.2d 179

Roberta J. GIBSON, Plaintiff-Appellee, Cross-Appellant, v. Earl J. GIBSON, (Estate of Earl J. Gibson, Deceased, through his Personal Representative, Rita T. Gibson) Defendant-Appellant, Cross-Appellee.

Docket No. 53979.

110 Mich.App. 666, 313 N.W.2d 179

Court of Appeals of Michigan.

Oct. 21, 1981.

Released for Publication Dec. 22, 1981.

[110 MICHAPP 667] Paul L. Decocq, Howell, for plaintiff-appellee, cross-appellant.

Michael J. McGivney, Brighton, for defendant-appellant, cross-appellee.

Before DANHOF, C. J., and CAVANAGH and FREEMAN, ^* JJ.

FREEMAN, Judge.

Defendant appeals by right the denial of a motion for a reduction in child support payments. Plaintiff cross-appeals the denial of her motion for a determination of the [110 MICHAPP 668] amount to be paid by defendant's estate for the education beyond high school of her son.

Roberta and Earl Gibson were divorced on August 2, 1972. Both parties signed the judgment approving it as to form and content. Plaintiff Roberta Gibson was awarded custody of their minor child. Defendant was ordered to pay child support of $43 per week and $9 per week for health and medical insurance. These payments were to continue until the child reached the age of 18 or graduated from high school or until further order of the court. The judgment reserved to the trial court the right to determine the amount to be paid by the defendant for the education of the child beyond high school.

Earl Gibson died on May 20, 1979. His then wife, Rita Gibson, was appointed personal representative of his estate. The minor child began to receive Social Security benefits payable upon his father's death.

Rita Gibson petitioned the circuit court for a modification of the judgment of divorce, requesting that child support payments be discharged to the extent of the amount of Social Security benefits received by the child. Plaintiff subsequently asked the court to determine an amount of money to be paid by defendant's estate toward the child's college education.

We first review the trial court's ruling that the Social Security benefits received by the child could not be credited against the amount due as child support. The Court ordered the estate to continue to make full payment of the weekly child support. In reaching his decision, the judge stated that he viewed Social Security as a "tax" which did not relieve an estate of an obligation to pay support. He specifically noted that the defendant had made no provision in his will for his son.

[110 MICHAPP 669] The majority of jurisdictions which have addressed the issue have apparently held that Social Security benefits paid to a child on the parent's account should be automatically credited against child support obligations owed by that parent. See Schulze v Jensen, 191 Neb. 253, 214 N.W.2d 591 (1974); Binns v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (1976); Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200 (1963); Cohen v. Murphy, 368 Mass. 144, 330 N.E.2d 473 (1975); Andler v. Andler, 217 Kan. 538, 538 P.2d 649 (1975) (all disability benefits); McClaskey v. McClaskey, 543 S.W.2d 832 (Mo.App., 1976) (retirement benefits). Whether these cases all hold that credit is automatic or is within the trial court's discretion is unclear since the commencement of Social Security payments to the child was usually accompanied by a substantial reduction in the earning power of the noncustodial parent.

In the following cases, courts have explicitly held that the crediting of Social Security payments against child support obligations is discretionary with the trial court and depends on the circumstances of each case: Fowler v. Fowler, 156 Conn. 569, 244 A.2d 375 (1968); Chase v. Chase, 74 Wash.2d 253, 444 P.2d 145 (1968); Joachim v. Joachim, 57 App.Div.2d 546, 393 N.Y.S.2d 63 (1977), cert. den. 434 U.S. 1066, 98 S.Ct. 1242, 55 L.Ed.2d 767 (1978); Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962).

We have found only one reported case involving Social Security death benefits paid to a child on account of the death of his noncustodial parent. In Cohen v. Cohen, 246 So.2d 581 (Fla.App., 1971), the parties had agreed to a specific amount of child support to be paid by the father. During the minority of the children, the father died. The Court upheld the trial court's ruling that the estate was not entitled to a partial credit or discharge for [110 MICHAPP 670] death benefit payments made to the minor children.

Those decisions holding that Social Security payments are only one factor to be considered are consistent with Michigan law governing modification of child support orders. All relevant factors must be considered by the trial court in deciding a request for modification. Rutledge v. Rutledge, 96 Mich.App. 621, 624, 293 N.W.2d 651 (1980); McCarthy v. McCarthy, 74 Mich.App. 105, 109, 253 N.W.2d 672 (1977); Cymbal v. Cymbal, 43 Mich.App. 566, 567, 204 N.W.2d 235 (1972). This rule stems from the statutory authority contained in M.C.L. § 552.17; M.S.A. § 25.97 allowing the court to revise and alter its decree concerning the care, custody and maintenance of the children "as the circumstances of the parents, and the benefit of the children shall require". On remand, the trial court should consider all relevant circumstances, including the child's income from Social Security payments. While these payments may not require a reduction in child support, the payments must be considered in determining an appropriate level of support.

Plaintiff challenges the trial judge's refusal to order that an amount be paid by the estate for the education of the child beyond high school. In the...