C.D.G. v. N.J.S.

469 S.W.3d 413, 2015 Ky. LEXIS 1763, 2015 WL 4979854
CourtKentucky Supreme Court
DecidedAugust 20, 2015
Docket2014-SC-000329-DGE; 2014-SC-000495-DGE
StatusPublished
Cited by9 cases

This text of 469 S.W.3d 413 (C.D.G. v. N.J.S.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.D.G. v. N.J.S., 469 S.W.3d 413, 2015 Ky. LEXIS 1763, 2015 WL 4979854 (Ky. 2015).

Opinion

OPINION OF THE COURT BY JUSTICE NOBLE

The main issue in this case is whether a parent may be given a dollar-for-dollar credit for Social Security retirement dependent benefits against a child-support obligation in light of KRS 403.211(15), which expressly allows such a credit for disability payments but says nothing about retirement benefits. The secondary issue, if such credits are proper, is whether the trial court can apply the credit retrospectively when a lump-sum payment for past benefits is paid for the child. The Court of Appeals concluded that such credits are improper. This Court concludes otherwise and reverses and reinstates the order of the circuit court.

I. Background

This case has a rather complicated back-story. Much of it is not germane to the issues in the case, however, and we recount only those facts necessary to resolve the issues.

The child in question was born in 2002 when NJS (“the mother”),1 was married to JS (“John”). (The mother had four other children, all presumably fathered by her husband, and later had yet a sixth child; the support of those other children is not at issue in this case.) As would later be proved, however, the child was actually fathered by CDG (“Chris”), with whom the mother had been having an affair and for whom she worked. Nevertheless, John was listed as the child’s father on the birth certificate, and he believed himself to be the child’s father.

In 2006, the mother filed for divorce from John. The question of paternity of the child was raised for the first time in the divorce action. John resisted attempts to have paternity established as belonging to anyone other than himself.

Nonetheless, the mother initiated a paternity action against Chris in March 2007. Less than a month .later, the mother and John entered into a marital settlement resolving child support and custody issues with respect to all the children. Under that agreement, John was to have the child no less than half the time; John is alleged [416]*416by Chris to be the child’s primary caregiver at present.

The settlement agreement also “permitted]” (according to Chris’s brief) John to apply for Social Security disability benefits, which he has been receiving since 2008. Those benefits included a sum for all six children, including approximately $175 per month for the child in this case, paid to him as the representative payee.

After the marital settlement, Chris unsuccessfully sought to have the paternity action dismissed. In October 2007, he was found to be the child’s father. In January 2008, the mother moved to have Chris ordered to pay child support. They eventually entered an agreed order under which he would pay $775 per month in support and owe no arrearage, and the mother would be responsible for the child’s health insurance. Apparently, the parties’ incomes2 put them beyond the top of the support guidelines. The mother claimed that she agreed to a lower support amount in anticipation that she would receive Social Security dependent benefits for the child when Chris retired in a few years, but no other evidence supports this claim. Chris paid his support obligation regularly until March 2013.

In November 2011, Chris turned 67 and applied for Social Security retirement benefits. At that time, he advised the Social Security Administration that the child in this case was his child. He was advised that the child would be eligible for dependent benefits, but that the custodial parent would have to complete an application for the child. Chris claims that he advised the mother of this on that day and that he had agreed to meet her at the Social Security office to complete the process. Chris also claims the mother fought going through with the Social Security application process until compelled by the trial court. The mother claims that she did not know the child was eligible for these benefits until 2012, when she received a notice from the Social Security Administration stating that Chris was receiving benefits.

In an effort to move the matter forward, Chris filed a motion in March 2012 to have his support obligation offset by the amount of the Social Security dependent benefits due to the child, which were later determined to total $1256 per month, and re-coupment of any overpayment of support paid since he began receiving Social Security benefits in May 2011 and the child became eligible for dependent benefits. Much wrangling between the parties ensued.

Chris alleges that much of the delay in getting benefits for the child was due to the fact that the child was already receiving benefits under John’s disability benefits. (Chris alleges that the mother was intentionally committing fraud with respect to the two.sets of Social Security benefits.) The mother agrees to some extent about the source of the delay, claiming that it was the result of her ex-husband, John, having obtained benefits for the child without her knowledge and his having to appear at the Social Security office to straighten things out, but also claiming that none of the delay is attributable to her. (She, of course, denies any fraud.)

Eventually, in March 2013, the child was awarded Chris’s benefits, including a $23,780 lump-sum award of back benefits for the period of May 2011 to March 2013. The lump sum was sent to the mother. Shortly thereafter, Chris asked that the amount and any future support payments be paid into escrow until his motion for an offset could be decided. According to the [417]*417representations of her lawyer to the trial court, the mother had not received the award at that point, as it had been mistakenly sent to John. The court took the matter under submission. A few days later, the mother alleged that she had since received and immediately spent the full lump sum, and thus it was not available to be paid into escrow] despite having notice that a motion was pending before the court to escrow the funds.

Eventually, the trial court ordered that Chris get “a dollar for dollar credit against his monthly child support obligation for any monies the child receives as a result of his Social Security retirement benefits,” meaning he would owe nothing, as the benefit to the child exceeded his support obligation. To reach this result, the court concluded that this was the “equitable outcome” and saw no reason that the SSA retirement benefits should be treated any differently than disability benefits are treated under KRS 403.211(15).3

The court also ordered the mother to repay the “overpayment” for the 22 months between the beginning of the child’s eligibility for benefits and the court’s order (a total of $17,050), noting .that she “has the funds available for repayment as a result of the lump sum payment from Social Security for retroactive benefits,” and that “it would be unfair and unjust to [Chris] for this Court to deny him the ability to recoup his overpayment from those funds.”

The Court of Appeals reversed, holding that Chris was not entitled to a credit under KRS 403.211(15), reviewing the matter de novo. Because Chris was not entitled to a credit, he was also not entitled to recoup any previous support payments. ■

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Cite This Page — Counsel Stack

Bluebook (online)
469 S.W.3d 413, 2015 Ky. LEXIS 1763, 2015 WL 4979854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cdg-v-njs-ky-2015.