In re Taber

• Decision Date: 29 June 2012
• Docket Number: No. 105,922.,105,922.
• Citation: 280 P.3d 234,47 Kan.App.2d 841
• Parties: In the Matter of the MARRIAGE OF Molly S. TABER, Appellee, and James L. Taber, Appellant.
• Court: Kansas Court of Appeals

47 Kan.App.2d 841

280 P.3d 234

In the Matter of the MARRIAGE OF Molly S. TABER, Appellee, and James L. Taber, Appellant.

No. 105,922.

Court of Appeals of Kansas.

June 29, 2012.

Syllabus by the Court

1. Lump-sum Social Security disability insurance (SSDI) payments for back benefits received by Mother on behalf of her minor child because of Father's disability may be credited toward Father's child support arrearage that accumulated during the months covered by the lump-sum payments.

2. Gratuitous contributions from governmental agencies cannot be used to reduce or diminish a parent's obligation to furnish child support.

3. Once a child support arrearage is paid, either directly or through SSDI, the fact that gratuitous government payments, such as Supplemental Security income (SSI), must first be reimbursed does not detract from the fact that the obligor parent has paid the arrearage. Accordingly, he or she must be given credit to the extent the payments are contemporaneous with the support obligation.

Mark A. Sherman, of Sherman & Dean, of Emporia, for appellant.

Melissa Johnson and Randy M. Barker, of Kansas Department of Social and Rehabilitation Services, of Topeka, appellee.

Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.

ARNOLD–BURGER, J.

James L. Taber was in arrears on his child support payments when he received a favorable ruling on his request for Social Security disability insurance (SSDI) benefits. Because SSDI benefits were retroactive, both Taber and his minor child, G.T., received lump-sum payments to cover the back benefits. G.T. was already receiving monthly Supplemental Security income (SSI) due to his own medical condition. G.T.'s SSDI lump-sum award was reduced by the amount of SSI benefits he received during the same time frame. Taber filed a motion asking the district court to apply G.T.'s total lump-sum award to Taber's past due child support. The district court denied the motion. We reverse and remand with directions to calculate a credit to Taber's child support arrearage consistent with this opinion.

Factual and Procedural History

James and Molly Taber were divorced in 1996. Taber was ordered to pay $300 per month for child support. Throughout the years, Taber paid his child support obligation sporadically at best. As of May 31, 2010, he was $10,974.75 in arrears.

In September 2007, Taber became disabled and ultimately was deemed eligible to receive disability benefits on May 14, 2010. However, due to a required 5–month waiting period, the Social Security Administration (SSA) determined his “entitlement” began in March 2008. Taber received a lump-sum SSDI payment for back benefits for the period of March 2008 to May 2010. G.T. also received a lump-sum SSDI payment for the period of March 2008 to May 2010. Because G.T. was already receiving SSI due to his own health problems, pursuant to federal law his lump-sum SSDI award of $17,154 was reduced by his personal SSI payments for the same time period ($13,747), such that G.T. only received a net award of $3,406.

Taber filed a motion asking that the district court apply G.T.'s total lump-sum award of $17,154 to Taber's child support arrearage that accumulated between September 2007 and May 2010. The district court denied the motion. Taber timely appeals.

The sole issue on appeal is whether Taber receives any credit toward his child support arrearage as a result of the lump-sum SSDI payment to his minor child, G.T. Because the material facts are not disputed and only the district court's legal conclusion is challenged, our review is unlimited. See In re Marriage of Galvin, 32 Kan.App.2d 410, 413, 83 P.3d 805 (2004).

Crediting SSDI Payments to Child Support Arrearage

Our court, along with the majority of other courts in the country which have considered this issue, has recently held that lump-sum SSDI benefits for back benefits received by Mother on behalf of her minor child because of Father's disability may be credited toward Father's child support arrearage that accumulated during the months covered by the lump-sum payments. See In re Marriage of Hohmann, 47 Kan.App.2d 117, 274 P.3d 27 (2012), pet. for rev. filed April 16, 2012 (pending).

However, the Kansas Department of Social and Rehabilitation Services (SRS) contends that our decision in Hohmann and the majority view of other courts are wrong for three distinct reasons. We disagree and stand by the reasoning of Hohmann. We will, however, address each claim made by SRS.

The child's need is current and must be met monthly.

SRS argues that parents are obligated to support their child on a timely basis as ordered by the court. If the courts allow lump-sum SSDI payments for back benefits to result in credits toward arrearages, even if only for the months covered by the lump-sum payments, it encourages obligors to delay any payments until their SSDI claims are decided, leaving the nonobligor parent to shoulder the entire financial burden of childrearing. This argument fails for several reasons.

First, the custodial nonobligor parent always has the ability to call upon the court's contempt powers to enforce child support payment orders. In fact, both Molly and SRS, as the assignee of child support rights in this case, took advantage of the contempt process on several occasions, resulting in payments, income withholding orders, threats of incarceration, and finally Taber's application for public assistance and disability benefits. Therefore, any failure to pay child support is at the obligor parent's own risk and subjects him or her to the court's broad powers to punish for contempt.

Second, there is no dispute that Taber receives credit for current monthly SSDI payments toward his current monthly child support obligation. This is clear from Andler v. Andler, 217 Kan. 538, 544, 538 P.2d 649 (1975). So in this case, Taber's monthly child support obligation is erased because G.T. receives more in SSDI payments ($647 per month) than Taber is required to pay in child support ($300 per month), and the monthly excess inures to the benefit of G.T. See 217 Kan. at 542–44, 538 P.2d 649. Further, the timing of the receipt of a lump-sum payment for previously earned SSDI benefits is entirely due to the inherent delay in navigating the federal SSA process. Had a timely decision been made by SSA, Taber would have received credit in those months that are now covered by the lump-sum award. There is no allegation presented by the parties here that the delay in receiving benefits was due to any actions on the part of Taber. If we hold that Taber should not receive credit, we penalize Taber for the SSA's delay.

Finally, it is clear that even though a nonobligor parent or others may be supporting the child, the remaining parent's obligation is not reduced. Thompson v. Thompson, 205 Kan. 630, 633, 470 P.2d 787 (1970). But the sole reason a parent applies for SSDI benefits is because he or she is unable to work and provide personal or family support. When a disability befalls one parent, the burden of support, at least temporarily, unfortunately falls upon the other parent. This same burden exists whether the parents are married or divorced. SSDI payments are not considered gratuitous but are instead insurance benefits paid on the condition of disability, a condition that was met in this case. See Andler, 217 Kan. at 542, 538 P.2d 649.

Federal regulations prohibit the nonobligor parent from applying lump-sum payments to anything other than current maintenance.

The SSDI benefits payable to G.T. are payable through Molly as the “representative payee” under federal regulations. SRS argues that federal regulations, specifically 20 C.F.R. § 404.2040 (2011), prohibit Molly from reimbursing herself from the lump-sum SSDI payment for child expenses she incurred and paid while Taber was in arrears. She would clearly be allowed such discretion, she argues, if Taber paid his arrearage or paid the child support due in a timely manner. Instead, as a representative payee, federal law unduly restricts how she can spend the money.

However, the regulation cited does not support this position, nor is SRS able to cite to any legal authority in support of its position. The regulation upon which SRS relies simply states that it “will consider that payments we certify to a representative payee have been used for the use and benefit of the beneficiary if they are used for the beneficiary'scurrent maintenance.” 20 C.F.R. § 404.2040. It does not address lump-sum payments of back benefits. SRS directs us to the SSA website and a brochure entitled A Guide for Representative Payees (2009), http:// www. ssa. gov/ pubs/ 10076. html. Although this brochure has no legal effect and would certainly not be adequate authority upon which to grant or deny Taber credit for the lump-sum SSDI payment, it states, in pertinent part:

“How to handle a large payment of past benefits

“Sometimes benefits take awhile to be approved. When this happens, back benefits may be paid all at once, in a large payment. First, you must spend the money on the beneficiary's current needs such as rent and a security deposit, food or furnishings. After these expenses are paid, you may spend the money to improve the beneficiary's daily living conditions or for better medical care. It is important that you spend the money wisely. You should keep in mind that the money must be used in the beneficiary's best interests. If there is money still left over, it must be saved....”

We find nothing in this language that would prohibit Molly from reimbursing herself for actual childrearing expenses incurred and paid during the months for which the lump-sum benefits were received, as long as she could document the expenditures to the SSA's satisfaction.

The brochure then goes on to state that the money can be used for a variety of things including medical and dental expenses, wheelchairs, insurance premiums, houses, cars, furniture, home improvements, movies,...