Y.H. v. M.H.

• Decision Date: 17 July 2018
• Docket Number: D071859
• Court: California Court of Appeals Court of Appeals
• Parties: Y.H., Plaintiff and Respondent, v. M.H., Defendant and Respondent; San Diego County Department of Child Support Services, Intervener and Appellant.

25 Cal.App.5th 300

235 Cal.Rptr.3d 663

Y.H., Plaintiff and Respondent,

v. M.H., Defendant and Respondent;San Diego County Department of Child Support Services, Intervener and Appellant.

D071859

Court of Appeal, Fourth District, Division 1, California.

Filed July 17, 2018

Xavier Beccera, Attorney General, Julie Weng-Gutierrez, Senior Assistant Attorney General, and Linda M. Gonzalez and Marina L. Soto, Deputy Attorneys General for Intervener and Appellant.

Doppelt & Forney, Damon B. Forney, San Diego; Feuerstein, Murphy & Beals, Bruce M. Beals, San Diego; and Debra Deck Scott for Defendant and Respondent.

No appearance for Plaintiff and Respondent.

DATO, J.

This appeal presents an issue of first impression in California. M.H. (Father), a child-support obligor, became disabled and applied for Social Security Disability Insurance (SSDI) for himself and his daughter. Family Code section 4504, subdivision (b) requires derivative benefits received by the child of a disabled parent to be credited against a noncustodial obligor's child support.¹ In this case, the Social Security Administration (SSA) took six years to approve Father's application. In 2015, it made a lump-sum payment for past-due derivative benefits to custodial parent Y.H. (Mother), as Daughter's representative payee. In the intervening six years, Father had continued to pay child support and was not in arrears. Does section 4504, subdivision (b) permit retroactive child support credit from Daughter's lump-sum payment where there is no child support arrearage? The trial court determined it does, and we agree. We modify the order solely to correct a clerical error and, as so modified, affirm.²

FACTUAL AND PROCEDURAL BACKGROUND

Father and Mother married in 2001, separated a year later, and divorced in 2003. Their only child, Daughter, was born in 2002. Pursuant to the stipulated marital settlement agreement, Mother had sole physical custody, the parents shared joint legal custody, and Father agreed to pay guideline child support.

Father was honorably discharged from the United States Marine Corps in 2004 and was found permanently disabled as a result of injuries sustained in combat in Iraq. At some point, Father began to receive Department of Veteran Affairs (VA) disability benefits.

Father's child support obligation changed over the years. At Mother's request, San Diego County Department of Child Support Services (DCSS) intervened in February 2006 to provide child support enforcement services.³ Effective March 2007, Father's obligation was $359 per month.

In 2011, DCSS filed a motion to modify child support. Both parents submitted income and expense declarations. Father was living solely on VA disability benefits of $2,870 per month. Mother was unemployed and finishing her last year of a bachelor's degree. Effective September 1, 2012, Father's child support obligation was increased to $719 per month.

Meanwhile, Father had applied for SSDI for himself and derivative benefits for his daughter. ( 42 U.S.C. §§ 402, subd. (d), 423, subd. (a).) After six years, his application was finally approved on June 29, 2015. The SSA determined that Father was entitled to benefits starting June 1, 2009. He was to receive $1,088 per month plus a lump-sum payment of $78,057 reflecting past due benefits that accrued while his application was pending. The SSA withheld $19,514 of that lump-sum payment for attorney's fees, and Father received a check for $61,121.65.

At roughly the same time, the SSA notified Mother that she had been chosen as the representative payee for Daughter's derivative benefits. ( 20 C.F.R. §§ 404.2001, subd. (b)(2), 404.2021, subd. (c)(1).) Due to Father's disability, Daughter was entitled to receive derivative benefits of $596 per month beginning July 2015. The SSA also sent Mother a lump-sum check for $41,384 reflecting past-due benefits that accrued while Father's application was pending.

For some months, Mother received Daughter's derivative benefits without notifying DCSS, resulting in Father overpaying child support. During this period, the SSA was withholding $544 from Father's monthly SSDI benefits. At some point DCSS started crediting Daughter's monthly benefit of $596 against Father's monthly support obligation of $719. Starting in March 2016, DCSS withheld $123 per month from Father's SSDI for the balance and credited Father for his overpayments during the previous nine months.

Father filed a request for order seeking (1) an audit by DCSS of all child support payments made to Mother, and (2) credit for Daughter's lump-sum derivative benefit payment. At the time he filed his motion, Father did not know how much Daughter had received as a lump sum or the amount of her monthly derivative benefit. Father sought discovery from Mother and filed a motion to compel when she failed to respond. He later obtained the information by issuing a subpoena to the SSA.

The court heard argument on Father's request for order and motion to compel in December 2016. Mother received notice but did not appear. Because Father had obtained the information needed for his motion, the court denied his motion to compel but imposed a $2,500 discovery sanction on Mother.

Although it had not filed a brief, DCSS asked to be heard on Father's request for order. It argued (as it does on appeal) that the lump-sum payment Mother received in July 2015 could only be credited under section 4504, subdivision (b) toward that month's child support obligation and then to any arrears. Because Father had paid his child support obligation in full, and in fact had a credit balance at the time of the hearing, he had no arrears to which the lump sum could be credited.

DCSS acknowledged that California law required it to reimburse any overpayment of child support. It also admitted that if Father had failed to pay child support during the six years he waited for the SSA to approve his disability benefits, it would have filed an enforcement action. But because Father had paid his child support, he was not in arrears and, according to DCSS, not entitled to credit for the lump-sum derivative benefit payment received by Mother. DCSS claimed this interpretation followed a plain reading of section 4504, subdivision (b) and Code of Civil Procedure section 695.221.

The trial court rejected DCSS's argument and granted Father's motion. It placed great weight on the "shall be credited" language in section 4504, subdivision (b) and explained that the statute mandated credit against Father's child support obligation. It further noted that as a result of flaws in the SSA's system, a person often waited years for a benefit claim to be approved. When Mother finally received Daughter's past-due derivative benefits in the form of a lump-sum payment, that payment had to be retroactively credited under section 4504 for all the intervening months Daughter received such benefits.

Father's counsel erroneously stated that Daughter's monthly derivative benefit had remained constant at $596 since June 2009. On that basis, the court ordered DCSS to retroactively apply $596 toward Father's monthly child support obligation commencing June 2009. It ordered Daughter's derivative benefits to be applied first against Father's child support obligation before applying any voluntary payments made by Father. Any excess would be subject to an offset or refund. The court rejected DCSS's contention that this was the "functional equivalent" of ordering reimbursement of Daughter's derivative benefits.

DCSS requested a statement of decision, which was not filed until after DCSS filed a notice of appeal. On July 19, 2017, we denied Father's motion to augment the record with the statement of decision and related filings.

DISCUSSION

The thrust of DCSS's argument is that section 4504, subdivision (b) prohibits applying retroactive credit for past-due derivative benefits when a noncustodial obligor parent is current in child support and owes no arrears. Because this presents a purely legal issue on undisputed facts, we apply the de novo standard of review. ( In re Marriage of Hall and Frencher (2016) 247 Cal.App.4th 23, 26, 201 Cal.Rptr.3d 769.) " ‘ "We begin with the fundamental rule that our primary task is to determine the lawmakers' intent." ’ " " ‘Where the language of the statute is clear and unambiguous, we follow the plain meaning of the statute and need not examine other indicia of legislative intent.’ " "Where appropriate, we turn to legislative history as an extrinsic aid to evaluate legislative intent." ( N.S. v. D.M. (2018) 21 Cal.App.5th 1040, 1047, 231 Cal.Rptr.3d 67, citations omitted.)⁴

A

Federal law provides for two types of Social Security insurance benefits—old age benefits and disability benefits. ( Elsenheimer v. Elsenheimer (2004) 124 Cal.App.4th 1532, 1538, 22 Cal.Rptr.3d 447.) Father received benefits under the Social Security Disability Insurance Program. ( 42 U.S.C. § 423, subd. (a).)⁵ A child not living in the same household as the disabled person may receive derivative benefits on account of a parent's disability. ( 42 U.S.C. § 402, subd. (d).) If a beneficiary is under the age of 18, the SSA will generally pay benefits to a representative payee, preferably the custodial parent. ( 20 C.F.R. §§ 404.2001, subd. (b)(2), 404.2021, subd. (c)(1).) Mother received Daughter's derivative benefits as her representative payee.

A child's Social Security insurance benefits are primarily intended for the support of a child. ( 20 C.F.R. § 404.2040, subd. (a)(1) ; In re Marriage of Denney (1981) 115 Cal.App.3d 543, 554, 171 Cal.Rptr. 440.) State law requires such benefits to be applied as a credit to a noncustodial parent's child support obligation. Section 4504, subdivision (b) provides:

"If the court has ordered a noncustodial parent to pay for the support of a child, payments for the support of the child made by the federal government pursuant to the Social Security Act ... because of the retirement or disability of the noncustodial parent and

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