Ward v. Marturano
| Decision Date | 07 May 1990 |
| Docket Number | No. 1511,1511 |
| Court | South Carolina Court of Appeals |
| Parties | James M. WARD, Respondent, v. Arlene R. MARTURANO, Appellant. . Heard |
Ann L. Furr, of Furr & Delgado, Columbia, for appellant.
Joseph M. Fullwood and Elizabeth C. Fullwood, both of Fullwood & Fullwood, Lexington, for respondent.
Respondent, James M. Ward, instituted this action seeking a reduction in child support. Appellant, Arlene R. Marturano, answered and counterclaimed seeking an increase in child support. From an order of the family court granting an increase but allowing the father's social security dependent allotment to satisfy a portion of the child support, the mother appeals. We affirm.
The parties to this action were married June 29, 1984 and divorced October 9, 1985. Of this marriage, one child was born who was four years old at the time of the hearing. Pursuant to a settlement agreement approved and adopted in part by the divorce decree, the father was ordered to pay child support of $275.00 monthly. At the time of divorce, the father was employed as a professor at the University of South Carolina. However, the record clearly demonstrates both parties anticipated the father would soon be retiring from his faculty position and would suffer a reduction in his income. On July 1, 1986, the father, who was 62 years old at the time of the hearing, retired from his faculty position. Shortly before he became eligible for social security benefits, the father learned his daughter was also entitled to social security benefits. The father testified, and the mother does not dispute, he was not aware at the time of the divorce that his daughter would be entitled to the benefits.
Upon reaching the age of 62 on January 30, 1988 the father, along with his daughter, became eligible for social security benefits. Since that time the mother has been receiving benefits for the daughter in the amount of $346.00 per month. Following a hearing on the matter, the trial judge found the child's eligibility for benefits constituted a change of circumstances warranting reconsideration of child support. He increased the monthly child support to $400.00 but found the father was entitled to credit for the amount paid as social security benefits. Thus, the father was required to pay the difference between the $400.00 and the monthly benefit. The trial judge further found the father was entitled to credit for the past social security payments for the benefit of the child and that the father was not required to make any monthly payments until the accumulated credit due him was exhausted. The court further ordered the mother was to receive $300.00 in attorney's fees from the father finding the $600.00 fee charged by her attorney was reasonable.
The mother first contends the trial judge erred in finding the father was entitled to credit for the social security benefit payment against his $400.00 monthly child support obligation. We disagree. The record before us clearly demonstrates the father was unaware of his daughter's eligibility for benefits under his social security record at the time he entered the settlement agreement incorporating the $275.00 monthly support provision. The mother appears to believe the entire amount of this unexpected source of funds accumulated on the basis of the father's social security record should automatically inure to her as the custodial parent. Clearly, had the parties known of their daughter's eligibility for benefits at the time of the divorce, the amount of support agreed to by the parties and incorporated by the court would have been affected. The record as a whole demonstrates the father's financial situation at the time of this hearing differed little from that which was anticipated at the time of the divorce. On the other hand, the mother, a 45 year old teacher, now grosses $400.00 more per month from teaching than she did at the time of the parties' divorce. Her financial declaration submitted for this hearing indicates the mother also is voluntarily placing $500.00 per month from her salary into savings and still achieves a surplus after deducting monthly expenses from her net income.
The law is clear that both parents have an...
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