Lamkin v. Flanagan

865 So. 2d 916, 2004 WL 134019
CourtLouisiana Court of Appeal
DecidedJanuary 28, 2004
Docket37,911-CA
StatusPublished
Cited by4 cases

This text of 865 So. 2d 916 (Lamkin v. Flanagan) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lamkin v. Flanagan, 865 So. 2d 916, 2004 WL 134019 (La. Ct. App. 2004).

Opinion

865 So.2d 916 (2004)

Peggy Dunlap Flanagan LAMKIN, Plaintiff-Appellant,
v.
Benjamin Neil FLANAGAN, Defendant-Appellee.

No. 37,911-CA.

Court of Appeal of Louisiana, Second Circuit.

January 28, 2004.
Rehearing Denied February 26, 2004.

*918 Robert E. Bethard, Coushatta, for Appellant.

William R. Jones, Coushatta, for Appellee.

Before WILLIAMS, PEATROSS and LOLLEY, JJ.

*919 WILLIAMS, Judge.

The plaintiff, Peggy Lamkin, appeals a judgment applying three lump-sum payments by the Social Security Administration (SSA) as a credit to offset the child support arrearage amount owed by the defendant, Benjamin Flanagan. After subtracting the credit amounts and adding interest, the trial court found that Flanagan owed a balance of $4,845.76 on the prior support judgment and that his seized property did not qualify for a homestead exemption. For the following reasons, we reverse in part, amend and affirm as amended.

FACTS

Peggy Lamkin and Benjamin Flanagan were married in 1979. Three children were born of the marriage, E.C.F., A.J.F and E.E.F. Subsequently, the parties were divorced and Flanagan was ordered to pay child support to Lamkin for the three children. Flanagan failed to make support payments and in June 1993, a judgment was entered against him in Caddo District Court in the amount of $20,295 for unpaid child support. The judgment reduced Flanagan's continuing child support obligation to whatever sum was paid by the Veteran's Administration (VA), and recognized that the amount was subject to change. A short time later, the VA discontinued payments to Lamkin.

In 1994, the SSA began making payments on behalf of the children after Flanagan was found totally disabled due to extensive medical problems related to his exposure to Agent Orange while serving in the Vietnam War. Social Security benefit reports introduced into evidence showed that SSA made separate lump-sum payments on behalf of the three children. In April 1994, a payment of $6,080 was made for E.C.F., representing "back pay from 6/89-4/94." In August 1994, SSA made payments of $6,528 for A.J.F. and $6,528 for E.E.F., representing "back pay from 6/89-9/94." Thereafter, SSA made monthly payments for the children.

In December 2001, Lamkin filed a motion in Red River Parish District Court to make the June 1993 Caddo judgment executory. The motion was granted and Lamkin seized immovable property owned by Flanagan in Red River Parish under a writ of fieri facias to satisfy the judgment. Flanagan sought a temporary restraining order to stop a scheduled sheriff's sale, arguing that he was entitled to a credit against the amount due on the 1993 judgment as a result of the SSA payments. He also filed a declaration of domicile alleging that the seized property was subject to a homestead exemption under LSA-R.S. 20:1.

After a trial, the court issued a written opinion finding that the seized property did not qualify for a homestead exemption. In addition, the trial court found that Flanagan was entitled to a credit for the entire amount of SSA lump-sum payments against the child support arrearage. The court rendered judgment setting the amount of $4,845.76 as the balance due on the 1993 judgment and assessing costs equally between the parties. The motions for new trial filed by Lamkin and Flanagan were denied. Lamkin now appeals the judgment and Flanagan has filed an answer to the appeal.

DISCUSSION

Lamkin contends the trial court erred in crediting the SSA lump-sum payment for E.C.F. against the child support arrearage amount in the June 1993 judgment. Lamkin argues that because she did not receive this payment, Flanagan should not have been given a credit for those funds to offset the amount of past due child support he owed.

*920 An order of child support is for the benefit of the children, even though directed paid to a parent or other custodian. If the sum directed to be paid by the father is paid through social security benefits derived from the father's account, the purpose of the order for support has been accomplished. Faul v. Faul, 548 So.2d 957 (La.App. 3rd Cir.1989).

A trial judge is given reasonable latitude in determining matters affecting the welfare of children, and a determination based upon the facts of a particular case is entitled to great weight. Furthermore, the trial judge is given great discretion in either granting or modifying child support awards and his decision will not be set aside or amended on appeal absent a clear abuse of that discretion. McCloud v. McCloud, 544 So.2d 764 (La.App. 3rd Cir. 1989).

In the present case, Lamkin testified that she did not receive the April 1994 lump-sum payment by SSA on behalf of E.C.F. She stated that at the time of the payment, the child was living with Flanagan in Texas. Lamkin introduced into evidence a letter from the SSA stating that she was appointed as representative payee for her son on July 20, 1994, and that "no retroactive benefits" were paid to her for E.C.F.

Flanagan testified that he did not specifically recall receiving a lump-sum payment for E.C.F. from SSA. However, Flanagan acknowledged that when the child was living with him in 1994, a check from SSA was deposited in his son's bank account.

Although the record indicates that Lamkin did not receive the lump-sum payment made by SSA on behalf of E.C.F., this evidence does not support her contention that the amount of the payment should not be included in a credit for social security benefits paid for the child. The evidence shows that SSA issued a lump-sum payment for E.C.F. in April 1994. An award of child support is for the child's welfare and if the support obligation of the father is paid through social security benefits resulting from the father's disability, the purpose of the child support award has been accomplished. Thus, even though the SSA payment was not issued to Lamkin, the funds were paid for the support of the child. Consequently, we cannot say the trial court erred in including the amount of the lump-sum payment for E.C.F. in any credit applied against Flanagan's support obligation.

Credit for Social Security Benefits

Lamkin contends the trial court erred in the method used to credit the lump-sum payments against the child support arrearage. She argues that a portion of the SSA payments should have been applied to offset the child support amounts which became due during the period between the date of judgment and the date when the SSA payments were received.

In his brief, Flanagan contends that his past due and future child support obligations have been completely extinguished by the social security benefits already paid on behalf of his children. In support of his position, Flanagan cites the 1993 judgment provision stating that his child support obligation "is hereby reduced to whatever sum is paid to petitioner, Peggy Dunlap Flanagan, by the Veteran's Administration. The court recognizes that the amount presently being paid to petitioner, for the benefit of the minor children is $401 per month, which may be increased or decreased by the Veteran's Administration pursuant to law, policy or change of circumstances." Contrary to Flanagan's contention, a reasonable reading of the judgment as a whole demonstrates that this language does not mean that the child support arrearage of $20,295 would be satisfied *921 by any amount of government benefits subsequently paid for the children.

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