Brazeal v. Brazeal

756 So. 2d 889, 1999 Ala. Civ. App. LEXIS 901, 1999 WL 1207043
CourtCourt of Civil Appeals of Alabama
DecidedDecember 17, 1999
Docket2980943
StatusPublished
Cited by1 cases

This text of 756 So. 2d 889 (Brazeal v. Brazeal) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brazeal v. Brazeal, 756 So. 2d 889, 1999 Ala. Civ. App. LEXIS 901, 1999 WL 1207043 (Ala. Ct. App. 1999).

Opinions

YATES, Judge.

This is a, child-support modification case. The parties were divorced in 1987. The record indicates that one child was born of the marriage and that the father was ordered to pay monthly child support to the mother. On November 7, 1998,' the father petitioned pro se for a modification, alleging a material change in circumstances, because the child had begun receiving $259 per month from the father’s Social Security disability benefits. Following an ore tenus proceeding, at which the father was not represented by an attorney, the court, on December 23, 1998, entered the following order:

“The Court finds from the evidence that the child of the marriage, ... 13 years of age, is now drawing Social Security benefits from the disability award to the [father], in the sum of Two Hundred and Fifty-nine Dollars (259.00) per month.
“The Court further finds that based upon the child support guidelines before [890]*890the Court, the order of child support should be One Hundred and Seventy Dollars ($170.00) per month.
“The Court further finds that the Defendant is in arrearage in his child support in the sum of Seven Hundred Dollars ($700.00)....
“It is the order, judgment, and decree of this Court that the child support award be modified and that the [father] be given credit for Social Security payments and that having considered the Social Security payments, the Court awards a minimum child support in the sum of Fifty-one Dollars ($51.00) per month. The Court further awards the [mother] Fifty Dollars ($50.00) per month toward an arrearage of Seven Hundred Dollars ($700.00) and orders that beginning with the month of January [1999] that the [father] go forth and pay to the [mother] the sum of One Hundred Dollars ($100.00) per month through April 2000. That beginning with May of 2000, child support award will be Fifty-one Dollars ($51.00) per month.”

The father, through legal counsel, moved to alter, amend, or vacate the order, arguing that there was no evidence that he owed an arrearage; that he should be credited for the lump-sum payment of $6,500, which the child had received from the father’s Social Security benefits; and that the child support ordered by the court exceeded the amount suggested by the child-support guidelines.

Following oral testimony, the court, on March 29, 1999, entered the following amended order:

“1. The guideline child support amount in this case is $171.00 per month. The minor child of the parties is now, and for some time has been receiving some $259.00 per month in Social Security benefits arising out of [the father’s) disability. The Court, in its order of December 23, 1998, ordered [the father] to pay [the mother] $51.00 per month in current child support, and $50.00 per month on an arrearage of $700.00 which arose between March and December of 1998. [The father] argues that he should have no arrearage, nor should he have to pay any child support at all, due to the Social Security benefits the child receives;
“2. The Court is unaware of any law absolving a nori-custodial parent of the duty to support his minor child where the child is drawing Social Security due to the disability of the non-custodial parent; nor, in fact, did [the father] argue the existence of any such law, or principle of law. However, this Court, as a matter of general practice, in seeking to do equity, has eliminated the obligation to pay current support in such cases;
“3. In this case, the Court did not eliminate the [father’s] duty to pay support, but reduced it from the guideline amount of $171.00 to $51.00 due to the Social Security benefits to the' child, thus modifying the Court’s order of March 2, 1998, which set current support at $175.00 per month. One prong of [the father’s] two pronged argument is that the child received Social Security benefits for the period dating back to, and even prior to, March, 1998, in the form of a lump-sum payment received in September, 1998, and that the downward modification should be retroactive to March, 1998, thus eliminating any ar-rearage claimed by [the mother]. This Court has no duty or obligation to change an order which was valid when issued, and which was modified when circumstances indicated a modification was due. [The mother] testified that the arrearage is $675.00, not $700.00, and the Court finds that [the father] owes an arrearage to [the mother] of $675.00;
“4. The other prong of [the father’s] argument, as previously stated, is that [the father’s] support payments should have [been] eliminated altogether, rath.er than being reduced to $51.00 per month. [The mother] offered unrefuted testimony to show that the child (a) is now entering her adolescence and has increased expenses over those of a child, [891]*891and (b) has special needs, including a medical condition ... which requires treatment by medication costing [the mother] $165 per month. In addition, [the mother] pays the costs of family coverage in order to maintain the child on her medical insurance. In view of these factors, it is not inequitable to require [the father] to pay a minimal child support payment of $51.00 a month.”

The court ordered the father to pay to the mother $51 per month as current child support and $50 per month toward the $675 arrearage. The father argues that because the child already receives Social Security benefits that exceed the amount of support he would be required to pay under the child-support guidelines, the trial court erred in requiring him to pay $51 per month in current child support and an additional $50 per month toward an ar-rearage. We agree.

This court has held that a noncustodial parent will receive full credit for his or her child-support obligation for payments received by a child based on that parent’s disability. Self v. Self, 685 So.2d 732 (Ala.Civ.App.1996). If the payment exceeds the amount required under the child-support guidelines, we find no basis for an additional payment by the parent. In Self, this court stated:

“This court has held that ‘[a]n order of support is for the benefit of the children ... [and that,] if the sum directed to be paid by the father is paid by the government through social security benefits derived from the account of the father, the purpose of the order has been accomplished.’ Binns v. Maddox, 57 Ala.App. 230, 232, 327 So.2d 726, 728 (Ala.Civ.App.1976). Thus, in Binns, this court held that the father was entitled to be credited with such payments against his court-ordered child support obligation. Id. This court further addressed this issue in Bowden v. Bowden, 426 So.2d 448 (Ala.Civ.App.1983) which stated:
“ ‘The purpose of Social Security is the same as that of an insurance policy with a private carrier, wherein a parent
insures against death or loss of physical ability to fulfill moral and legal obligations to dependent children. The premiums on such insurance may be said to have been paid either by the parent or by the parent and [the] employer....
‘“The Supreme Court of the United States has referred to the Social Security system as social insurance and has said the right to the benefits is in one sense earned. It only seems logical to extend the holding of the cases cited to the facts of this case.

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Bluebook (online)
756 So. 2d 889, 1999 Ala. Civ. App. LEXIS 901, 1999 WL 1207043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brazeal-v-brazeal-alacivapp-1999.