Kirwan v. Kirwan
| Decision Date | 30 October 1992 |
| Docket Number | No. 92-320,92-320 |
| Citation | 606 So.2d 771 |
| Parties | 17 Fla. L. Week. D2477 Gary KIRWAN, Appellant, v. Linda F. KIRWAN, Appellee. |
| Court | Florida District Court of Appeals |
Lou Ellen Combs, Seminole County Bar Ass'n Legal Aid Soc., Inc., Altamonte Springs, for appellant.
No appearance for appellee.
The issue on appeal is whether social security benefits paid directly to a minor child in excess of the disabled father's child support obligation may be used to reduce the father's established child support arrearage.
Gary Kirwan (Father) and Linda Kirwan (Mother) were divorced in October, 1988. Ultimately, the court ordered the Father to pay $345.00 per month in child support. In February, 1991, the Mother filed a motion for contempt in which she alleged that the Father had failed to pay child support for the prior six months. In his response, the Father explained that he had a medical condition which prevented him from maintaining employment, that he had applied for social security disability benefits but had been deemed ineligible, and that he was appealing that decision. He requested that the court find him unable to pay the child support ordered and abate same due to his changed financial circumstances. 1
In September, 1990, the Father began receiving social security disability benefits for himself in the amount of $1058.00. He forwarded no portion of these benefits to the Mother as child support. Almost a full year later, he began receiving monthly benefit checks on behalf of the minor child who was residing with the Mother. As with his own benefits, the Father did not forward these funds to the Mother for child support. Although it is unclear as to how or why, the Mother now receives the minor child's social security check of $529.00 per month directly.
In its final order issued after the contempt hearing, the trial court found that the Father became totally disabled in November, 1989 and began receiving social security benefits in September, 1990. The court abated the Father's ongoing child support obligation from October 1, 1991, so long as the minor child received the monthly social security benefits. The court further found that the Father was in arrears $9,082.25 for the period from November, 1989 through September, 1991 and ordered him to pay the arrearage in monthly payments of $105.80 with interest accruing at 12% per year. The court refused to permit the amount by which the child's monthly social security benefit exceeded the Father's child support obligation 2 to be used to satisfy the child support arrearage, reasoning that this money belonged to the child, not the Father.
The Father appeals this decision, contending that social security benefits should be deemed as substitute income which belongs to him and that he should be permitted to use the amount by which these benefits exceed his ongoing child support obligation to pay off his arrearages. This "substitute income" view of social security benefits arises from out-of-state cases in which courts have viewed social security benefits as funds derived from contributions made via wage deductions throughout an employee's working life. Upon disability, these benefits operate as a substitute for the income lost as a result of the employee's inability to work. Binns v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (Ala.Civ.App.1976); Andler v. Andler, 217 Kan. 538, 538 P.2d 649 (1975).
Florida courts have not addressed the issue presented on appeal. As in many other states, Florida allows the application of social security benefits toward the satisfaction of simultaneously ongoing child support obligations. Williams v. Williams, 560 So.2d 308 (Fla. 1st DCA 1990). Therefore, where "arrearages" accrue because the custodial parent is receiving social security benefits but no child support payments, Florida law permits a credit against these "arrearages" in the amount of the benefits previously paid. Williams does not apply to the case now before us because the minor child received no benefits during the time the Father failed to make support payments. The Father now seeks a ruling that future benefits can be used to satisfy...
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