Lopez v. Lopez, 2

• Decision Date: 14 January 1980
• Docket Number: No. 2,CA-CIV,2
• Parties: Rafaela LOPEZ, now known as Rafaela (Lopez) Astorga, Plaintiff/Respondent/Appellant, v. Guadalupe Frank LOPEZ, Jr., Personal Representative of the Estate of Guadalupe Frank Lopez, deceased, Defendant/Petitioner/Appellee. 3304.
• Court: Arizona Court of Appeals

Page 579

609 P.2d 579

125 Ariz. 309

Rafaela LOPEZ, now known as Rafaela (Lopez) Astorga, Plaintiff/Respondent/Appellant, v. Guadalupe Frank LOPEZ, Jr., Personal Representative of the Estate of Guadalupe Frank Lopez, deceased, Defendant/Petitioner/Appellee.

No. 2 CA-CIV 3304.

Court of Appeals of Arizona, Division 2.

Jan. 14, 1980.

Rehearing Denied March 12, 1980.

Review Denied April 15, 1980.

Mary Anne Peters, Tucson, for plaintiff/respondent/appellant

Jacqueline Schneider, Tucson, for defendant/petitioner/appellee.

OPINION

HOWARD, Judge.

This is an appeal from an order denying appellant's claim for arrearages of support money. In 1967 a decree of separation awarded custody of the minor children to the wife and ordered the husband to pay to her for her support and the support of the minor children "50% of his net income each week". The husband was 67 years old at the time of this decree and employed as a construction worker.

In 1978 the wife filed a petition for dissolution and a petition for arrearages. The trial court granted the dissolution but failed to award any sum for arrearages. We agree with her contention that the trial court erred in not granting her a judgment for arrearages.

The issues in the trial court were (1) What was the husband's net income during the periods in question? and (2) What amount did the husband pay toward those arrearages? In resolving the second issue it must be kept in mind that in an action for arrearages the burden of showing payment rests on the husband. Briggs v. Briggs, 178 Or. 193, 165 P.2d 772 (1946); Marks v. Marks, 98 Utah 400, 100 P.2d 207 (1940).

What does the phrase "net income" include? The general rules of construction of a written instrument apply to the construction of judgments. The intention of the court must be determined from all parts of the judgment and words and clauses should be construed according to their natural and legal import. Keiser v. Wiedmer, 283 S.W.2d 914 (Mo.App.1955); 49 C.J.S. Judgments § 436. The purpose of the provision in the decree of separation was to provide for the needs of the wife and the minor children. Webster's Third New International Dictionary defines "income" as "a gain or recurrent benefit that is (usually) measured in money and for a given period of time, derives from capital, labor, or a combination of both . . ." The same work defines "net income" as the balance of gross income remaining after deducting related costs and expenses. We believe that here the court intended that the term "net income", as applied to the husband's payroll checks, meant gross pay less mandatory deductions and all net sums which he received including unemployment benefits, a substitute for wages, but not workman's compensation benefits which were received for an on-the-job injury.

The big dispute between the parties concerns the nature of certain Social Security payments. In 1971 the husband, who was then 72 years old, began receiving Social Security benefits. The wife also started receiving a Social Security check every month as the spouse of an individual entitled to old-age benefits pursuant to 42 U.S.C.A. Sec. 402(b)(2) (1974). She also started receiving a check for the minor children who became eligible through their father under 42 U.S.C.A. Sec. 402(d)(2) (1974). First of all, we reject the husband's contention that the Social Security payments which he actually received were not "net income". We believe it clear that the court intended him to pay for the support of his family a sum equal to one-half of the money that he actually received. Second, we reject the wife's contention that the Social Security payments paid to her for herself and the minor children should have been included in computing the husband's income. He never actually received the money nor did he have a right to do so. This leads us to the next question. Are the Social Security payments received by the wife and the children to be credited against his support obligation? We answer this in the affirmative. See Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962); McClaskey v. McClaskey, 543 S.W.2d 832 (Mo.App.1976). See also Annot., 77 A.L.R.3d 1315 (1970); 24 Am.Jur.2d Divorce and Separation Sec. 873 (1966).

The husband also claims credit for medical and dental payments for the children and wife which were made through his own insurance directly to the creditors. Ordinarily, the husband cannot be credited for support payments made other than to his wife, not consented to by her, and as to which he is a volunteer. See Baures v. Baures, 13 Ariz.App. 515, 478 P.2d 130 (1970); Annot. 47 A.L.R.3d 1024 (1971). This rule is subject to an equitable exception under the particular circumstances involved, provided such an allowance would not do an injustice to the mother. Cole v. Cole, 101 Ariz. 382, 420 P.2d 167 (1966), Badertscher v. Badertscher, 10 Ariz.App. 501, 460 P.2d 37 (1969). Child support ¹ is to be disbursed by the wife as she sees fit and the husband is not entitled to credits against past due child support for monies he paid to dentists or doctors on his own accord. McConnell v. Theriot, 295 So.2d 60 (La.App.1974). However, if the husband can show that the wife expressly or impliedly consented to the manner in which the husband...