Hinckley v. Hinckley

• Decision Date: 05 June 1991
• Docket Number: No. 90-46,90-46
• Citation: 812 P.2d 907
• Parties: James Henry HINCKLEY, Appellant (Petitioner), v. Brenda Lee HINCKLEY, Appellee (Respondent).
• Court: Wyoming Supreme Court

Page 907

812 P.2d 907

James Henry HINCKLEY, Appellant (Petitioner), v. Brenda Lee HINCKLEY, Appellee (Respondent).

No. 90-46.

Supreme Court of Wyoming.

June 5, 1991.

Sue Davidson, Cheyenne, for appellant.

Robert L. Nelson, Cheyenne, for appellee.

Before THOMAS, CARDINE, MACY and GOLDEN, JJ., and LANGDON, District Judge.

THOMAS, Justice.

The question in this case is whether an award of Social Security benefits made directly to children because of the Social Security disability of their father must be credited against unpaid child support payments and future child support obligations. The trial court ruled that the lump sum Social Security benefit paid to the children under a federal statute should not be credited against unpaid child support and, further, that no credit against future child support obligations would be made. The court also held that no material change in circumstances had been demonstrated that would justify an adjustment in the amount of child support awarded in the divorce decree. Ancillary questions are presented concerning discovery on the part of the husband with respect to the needs of the children and the income of the ex-wife and the propriety of an award of attorney fees. We agree with the rulings by the trial court except for the award of attorney fees. The award of attorney fees was not supported by evidence establishing the reasonableness of the fee charged as required by our rule. The order and judgment entered by the trial court are affirmed in all respects except for the award of attorney fees, which must be reversed.

The father, as appellant, sets forth the issues on appeal to be:

"1. Whether unqualified monthly Social Security Disability payments awarded, post divorce, for the benefit of their father's disability, as a matter of law, constitute satisfaction of child support payments required by the divorce decree.

"2. Whether unqualified monthly Social Security Disability payments awarded, post divorce, for the benefit of the parties' minor children because of their father's total disability constitutes a material change of circumstance so that monthly disability payments constitute satisfaction of child support payments required by the divorce decree.

"3. Whether a lump sum payment of $14,103.44 in back Social Security disability payments for the children for the two year period preceding the award should be credited to back child support arrearages especially when child support payments for the same two year period were current (except for a $100.00 shortage).

"4. Whether the Court failed to allow appellant to properly discover evidence regarding the children's needs and ex-wife's income situation.

"5. Whether an award for attorney's fees was improper since appellee failed to present evidence establishing the reasonableness thereof."

The mother, as appellee, states the issues in substantially the same way as the father.

The parties in this case were married on August 11, 1973. In November of 1974, the father suffered serious back injuries while on active duty with the United States Air Force. Despite several surgical procedures following his injury, the Veterans Administration declared the father to be 100% disabled in 1977. The father then retired from the United States Air Force and began to receive Veterans Administration benefits. The father and the mother were divorced by a decree entered January 19, 1983. The divorce decree incorporated a separation agreement signed by the parties, which required the father to pay child support through the clerk of the court in the amount of $150 per month for each of his two children. The child support payments were to begin on January 1, 1983. The separation agreement also provided that if either party should violate its terms, the party in violation agreed to pay the reasonable attorney fees incurred by the other party in enforcing his or her rights.

At the time the separation agreement was entered into, the father's only income was his disability pension from the Veterans Administration of $1,377 per month. The father previously had been receiving Social Security benefits, but he had waived those in order to go to school. Both prior to, and after, the divorce, the father also received from the Veterans Administration a small monthly benefit for his children, which he forwarded to them.

In November of 1987, a Social Security hearing examiner found the father to be 100% disabled. Social Security then began providing a monthly benefit to the children of the marriage. This benefit was in the amount of $584 per month by May 5 of 1989. A retroactive lump sum award of approximately $14,000 was sent to the mother, as custodian for the children. ¹ On May 19, 1988, the father filed a petition for the appointment of a conservator to manage the $14,000 on behalf of the children. In his petition, he nominated a corporate conservator, but he also volunteered to serve in that capacity. At the time the petition was filed, the father served on the mother a set of interrogatories and a request for production of documents, which requested information about her income and finances and expenditures for the children. The mother objected to the interrogatories and the request for production on the grounds that they were irrelevant, immaterial, and beyond the scope of the issues. Subsequently, the trial court entered an order compelling a response to only one of the interrogatories and requiring that only two of the requests for production of documents be honored.

A little less than a month after the petition for appointment of conservator was filed, and at the same time the mother responded to that petition, she filed, in the divorce action, a "Motion to Find Defendant in Contempt, Complaint for Judgment of Back Child Support, Medical and Other Bills, Motion for Attorneys Fees." In that pleading, the mother alleged that the father had failed to pay child support pursuant to the order of the court in the divorce case; had failed to maintain medical care for the children; and had failed to pay certain medical debts as required by the decree of divorce. In her pleading, the mother also requested attorney fees incurred by her in bringing the proceeding. The father then counterclaimed, requesting, among other things, that the Social Security benefits paid on his account to the children be set off against any arrearages in child support that might be due from him and also be credited against his future child support obligation.

On July 14, 1988, the father filed a motion to consolidate the two proceedings. A number of intervening pleadings then were filed before November 2, 1988, when the trial court entered an order consolidating the conservatorship proceeding and the proceedings pending in the divorce case for purposes of trial. On July 29, 1988, they were consolidated for purposes of a hearing on the motion to compel discovery. A trial of all of the issues in the case was held on May 5, 1989 and, after the submission of written arguments by the parties, the court, on January 2, 1990, entered its "Judgment and Order Finding Defendant/Petitioner in Contempt and Denying Certain Motions." That judgment and order denied the request of the husband for a conservatorship; found that the husband had not demonstrated a substantial or material change in circumstances; denied his request for modification of the amount of child support; found the husband to be in arrears for child support payments in the amount of $5,500 as of May 1, 1989; awarded the wife reimbursement for medical expenses and marital debts she had paid; and awarded her attorney fees against the husband in the amount of $2,799.60. The trial court also found that the husband was in contempt for failure to comply with the original divorce decree. This appeal was taken from that judgment and order.

The first two issues asserted by the father concern the effect of Social Security disability payments upon the father's future obligation for child support. The father contends that the Social Security payments either should be considered as satisfying his obligation for future child support because they replace the money due from him under the decree or that the mother's receipt of the money constitutes a substantial and material change in circumstances that should justify the reduction of his support obligation. The trial court did not accept either of these arguments, and it refused to either suspend or modify the father's obligation for future child support.

Turning first to the father's argument that the Social Security benefit payments made to the wife should serve to satisfy his obligation for child support, our review of pertinent Wyoming authority reveals no prior case in which this point was raised. The father directs our attention to decisions from other jurisdictions that have permitted an obligor for child support to satisfy that obligation through payment of benefits by the government. The father particularly relies upon Andler v. Andler, 217 Kan. 538, 538 P.2d 649 (1975).

In Andler, the obligor, who became disabled prior to the entry of the divorce decree, was ordered to pay $160 per month for child support. One month after the divorce decree was entered, the ex-wife started to receive a Social Security disability benefit of $221.10 per month for the children because of the father's disability. The Kansas Supreme Court held that the disability benefit had satisfied the father's child support obligation each month from the time the ex-wife began to receive those payments. The court responded to the contention that the benefit payments constituted a "gratuity" which should not be applied to the father's obligation by saying:

"The United States Congress has seen fit to place the federal government in the role of insurer in order to afford members of the work force the protection and security of insurance against future disability. The fundamental nature of the Social Security...