In re Marriage of Taber

1

No. 105,922

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

MOLLY S. TABER,
Appellee,

and

JAMES L. TABER,
Appellant.


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.

2

Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed June 29, 2012.
Reversed and remanded with directions.

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
3

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
4

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. 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
5

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.

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
6

beneficiary's current 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, concerts, and magazine subscriptions. It
concludes this topic with the following: "If you are not sure whether it is okay to use the
money for a specific item (for example, paying a bill the beneficiary owed before you
became payee), contact your local Social Security office before you spend the money."

7

This language leaves open the possibility that paying a bill incurred before the
money was received by the representative payee may be appropriate, but further
discussion with the SSA is necessary. So, although SRS's argument is at first blush
compelling, SRS presents no legal support for its position. Failure to support a point with
pertinent authority or show why it is sound despite a lack of supporting authority or in the
face of contrary authority is akin to failing to brief the issue. State v. Berriozabal, 291
Kan. 568, 594, 243 P.3d 352 (2010).

When there is no arrearage, crediting a lump-sum payment would result in a requirement
that the nonobligor parent reimburse the obligor parent for the timely child support paid.

Finally, SRS argues that if a child support obligor has timely paid his or her child
support and subsequently the child receives a lump-sum payment covering months
already paid by the obligor, the nonobligor parent would have to repay the obligor for the
"overpayment." This issue was also raised in Hohmann, and although we declined to
address it, we did note, as we do here, that the majority of courts take the view that no
reimbursement is required and deem the excess to be a voluntary overpayment that inures
solely to the benefit of the child. See, e.g., Child Support Enforcement Agency v. Doe, 92
Hawaii 276, 285-86, 990 P.2d 1158 (Hawaii App. 1999); Brown v. Brown, 849 N.E.2d
610, 616 (Ind. 2006); Newman v. Newman, 451 N.W.2d 843, 844 (Iowa 1990); Holmberg
v. Holmberg, 578 N.W.2d 817, 827 (Minn. App. 1998), aff'd 588 N.W.2d 720 (Minn.
1999); Keith v. Purvis, 982 So. 2d 1033, 1038-39 (Miss. App. 2008); Steel v. Hartwick,
209 W. Va. 706, 708-09, 551 S.E.2d 42 (2001). Our Supreme Court also addressed this
issue in Andler. Andler made four child support payments after his SSDI payments
started. So for 4 months, Mother received both the child support payment and the SSDI
payment. The Supreme Court found that those four child support payments "must be
regarded as gratuities for the children." 217 Kan. at 545. We believe this reasoning to be
sound and we can find no basis to depart from it.

8

Therefore, because G.T.'s lump-sum SSDI payment covered the time frame from
March 2008 to May 2010, Taber should be given a credit towards his child support
arrearages for those months in an amount equal to the amount of G.T.'s SSDI payment in
each specific month. For any month in which the SSDI payment exceeds the amount
Taber owes for that month, the excess inures to the benefit of G.T.

THE EFFECT OF THE SSI PAYMENTS MADE TO G.T.

SRS argues that if this court decides Taber is entitled to credit toward his child
support arrearage, he should only be entitled to a credit of $3,406—the net amount that
G.T. received after the SSA withheld the SSI payments G.T. received during the same
time period. To fully address this issue, we must first examine the difference between SSI
and SSDI benefits.

Pursuant to the Social Security Act, the federal government provides benefits to
disabled persons under two distinct programs administered by the SSA. Subchapter II of
the Act, through the SSDI program, provides for the payment of insurance benefits to
persons who have previously worked and contributed to the program by paying taxes on
earned income through the Federal Insurance Contributions Act (FICA). 42 U.S.C. §§
401-433 (2006); State ex rel. Secretary of SRS v. White, 42 Kan. App. 2d 756, 758, 216
P.3d 727 (2009); Horwitz v. Horwitz, 897 So. 2d 337, 342 (Ala. Civ. App. 2004). When
insured persons suffer from a physical or mental disability and are no longer able to
work, they are entitled to benefits from the SSA insurance program in the form of SSDI
payments to themselves and their minor children. 20 C.F.R. § 404.330 (2011). The
amount of the benefit is directly related to the amount the insured has paid into the
program. 42 U.S.C. § 415 (2006).

In contrast to the quasi-insurance nature of the SSDI program, SSI is a welfare
program covered under 42 U.S.C. §§ 1381-83d (2006). It is funded by general tax
9

revenues, not Social Security taxes. Eligibility for benefits is entirely unrelated to past
earnings. It is available to all individuals whose income is below specified levels. 42
U.S.C. § 1381a (2006); White, 42 Kan. App. 2d at 758; Martin v. Martin, 70 Mass. App.
547, 550, 874 N.E.2d 1137 (2007).

In In re Marriage of Emerson, 18 Kan. App. 2d 277, Syl. ¶ 1, 850 P.2d 942
(1993), our court held that SSI benefits being paid to a minor child may not be claimed as
credit towards the payment of court-ordered child support. The court reasoned that SSI
benefits are designed to supplement the income of the disabled person and are not related
to the disability of any other members of the family. The resources available to the child
are taken into consideration when the SSI benefits are determined. The court reasoned
that SSI benefits are more in the nature of a gratuity from a governmental agency, unlike
SSDI which is an earned insurance proceed. 18 Kan. App. 2d at 280-81 (citing Andler,
217 Kan. at 544). The court cited Thompson, 205 Kan. at 633, for the proposition that
gratuitous contributions from governmental agencies are not to be used to reduce or
diminish a father's obligation to furnish child support. Emerson, 18 Kan. App. 2d at 280.
This appears to be the majority view. See Martin, 70 Mass. App. at 551 n.6 (enumerating
other states that have adopted this view).

But this case is distinguishable from Emerson and presents an issue of first
impression in Kansas. In Emerson, SSDI was not involved in the child support equation
at all. The child support obligor was simply requesting a credit for the child's SSI
payments. In this case, however, because SSI is a gratuitous, income-based program,
federal law requires that the income of the recipient be evaluated regularly and an
increase in income or benefits from other sources may offset, reduce, or eliminate the SSI
payment. See In the Matter of Lister & Lister, 162 N.H. 48, 51-52, 27 A.3d 673 (2011).
In the case of an SSI recipient who receives a lump-sum SSDI payment for back benefits,
SSA looks at whether the SSI benefits would have been reduced if the SSDI benefits had
been paid when regularly due. 42 U.S.C. § 1320a-6 (2006) (also known as the "windfall"
10

offset provision); 70A Am. Jur. 2d, Social Security and Medicare § 643, p. 701. Here,
G.T.'s SSDI lump-sum benefit was offset by what he had been paid in SSI benefits that
would not have been paid had the SSDI benefit been paid in a timely manner. In essence,
the government reimbursed itself for the gratuitous payments out of the SSDI lump-sum
award. Would giving Taber credit for the entire SSDI payment, in effect, diminish his
child support obligation based on a gratuitous payment from a governmental agency, as
prohibited by Emerson? We do not believe it would. The fact remains that he is only
receiving credit for SSDI back benefits, which we have already outlined is proper.

The result in this case would have been no different if Taber had simply paid his
back child support. Molly, G.T.'s representative payee, would have been required to
report the increase in income from the child support payment, and SSA could have
sought reimbursement for SSI paid during the same time frame and, if appropriate,
eliminated future SSI payments. 20 C.F.R. Subpart G (2011); 20 C.F.R. § 416.708
(2011). There would have been no "windfall" to G.T. Likewise, if the SSA had paid
Taber's SSDI benefits in a timely manner G.T. would not have been eligible for SSI
benefits, or at least not as much in SSI benefits. Basically, in this case, the SSI benefits
allowed G.T. to receive some current assistance at a time when his income was minimal
due to his father's failure to pay child support. But when his father was able to pay, he
had to first reimburse SSI for these "advances." If there had been no payment of
arrearage, either through direct payments or SSDI reimbursement, according to Emerson,
Taber would not receive any credit because neither he nor his earned insurance benefit
was responsible for the payment. But once the arrearage is paid, the fact that SSI must
first be reimbursed does not detract from the fact that father has paid the arrearage. To
deny him credit would be to deny him credit for both the SSI payment, which he
reimbursed, and his SSDI payment. This is unlike the situation discussed above where an
obligor parent has both paid child support and received a lump-sum SSDI payment,
because the obligor parent is at least getting full credit toward child support. To adopt the
reasoning of SRS would be to deny Taber full credit. Accordingly, we find that Taber is
11

entitled to credit for the SSDI back benefits assigned to G.T. to the extent they are
contemporaneous with his support obligation.

Our review of the record leads us to the conclusion that from G.T.'s total lump-
sum award of $17,154, Taber is entitled to a credit toward his child support arrearage for
the months of March 2008 through May 2010 in the amount of $7,600. This represents
the amount he owed for those 27 months ($8,100) minus the amount he paid during those
months ($500). The balance, which would include the $3,406 net award to G.T., is a
voluntary overpayment that inures to the benefit of G.T. and cannot be applied to any
pre-March 2008 arrearage.

We reverse the district court ruling denying any credit toward Taber's child
support arrearage that was specifically attributed to the months between March 2008 and
May 2010 and remand with directions for the district court to credit Taber's arrearage
consistent with this opinion.

Reversed and remanded with directions.