APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JOSEPH W. O'REILLY, JUDGE ACTION NO. 07-J-500757
BRIEF FOR APPELLANT: Laurence J. Zielke
BRIEF FOR APPELLEE: Callie Walton
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES.
N.J.S. (Mother) appeals from an order of the Jefferson Circuit Court entered on April 25, 2013. She contends that the court erred by crediting the dependent benefit that their minor daughter receives (due to Father's receipt of Social Security retirement benefits) against the child support obligation of C.D.G. (Father). Mother also contends that the court erred in ordering her to reimburse Father for an "overpayment" of child support from the child's retroactive lump- sum Social Security benefit. We agree with Mother's contentions. Consequently, we vacate the circuit court's order and remand for further proceedings.
In April 2008, Mother and Father, whose incomes were both outside the child support guidelines, agreed in mediation that Father would pay $775.00 per month for the support of the parties' minor daughter. Their agreement did not address the application of any future Social Security dependent benefits.
While Father continued to be gainfully employed, he applied for Social Security retirement benefits in November 2011. He also applied for retirement dependent benefits.
In March 2012, Father filed a motion with the circuit court for an order permitting him to substitute the child's anticipated dependent benefit for his monthly child support obligation and to recoup from Mother the child support he had paid since May 2011. No order was forthcoming, and Father continued to pay the mediated sum of $775.00 per month for the support of the parties' child. Mother filed a motion to increase the monthly child support obligation.
On March 20, 2013, Mother was notified that she would receive $1256.00 per month as the representative payee for the child's Social Security dependent benefits and that the child would receive retroactive benefits totalling $23, 780.00. Mother was informed by the Social Security Administration that she was required to spend that portion of the benefit necessary to meet the immediate needs of the child and to invest the remainder for the child's future needs.
In an order entered on April 25, 2013, the circuit court concluded that Father's Social Security retirement benefits should be treated like disability benefits under the statutory provisions governing a disabled parent's child support obligation (Kentucky Revised Statute[s] (KRS) 403.211(15)) and granted Father's motion for a credit against his monthly child support obligation based upon the value of the retirement dependent benefit payable to Mother. The court analyzed the issue as follows:
The Court believes this is the most equitable outcome in this situation and sees no reason why [Father's] Social Security retirement benefits should not be treated in the same manner as a parent's Social Security disability benefits, given that they are both earned and distributed based on the parent's employment history. The termination of [Father's] obligation to pay child support directly to [Mother] is effective as of the May 2011 effective date of the child's SSA benefits through [Father].
With respect to Father's request that Mother be ordered to reimburse him $17, 050.00 for the overpayment of his monthly child support payments made from May 2011 to March 2013, the court concluded as follows:
[Mother] shall reimburse to [Father] the child support payments he has made since the effective date of the termination of [Father's] child support order. The Court concludes [Mother] has the funds available for repayment as a result of the lump sum payment from Social Security for retroactive benefits. Under Clay v. Clay, 707 S.W.2d 352 (Ky. App. 1986), since [Mother] has funds available for repayment, it would be ...