As complicated as family law can get, the core principles
are pretty straight forward. When it
comes to the husband and wife, the courts are trying to be fair. When it comes to the children, the question
always goes to their best interest.
Do the right thing and take care of the kids. Sounds simple, right?
If you learn nothing else from reading this blog, know this:
the simple is rarely easy, and cases by their specific, complex nature almost
never lend themselves to straightforward applications.
Why then do we have these core principles? Why tease us with simplicity when the whole
endeavor is going to spiral into a maze of arguments and brambles?
We can see from the cases that there are really two schools
of thought as to how such principles and central purposes inform a case and
function within the context of the dispute.
In some cases, the court uses the principles and central
purposes as a shoreline. The decision
should always stay in sight of such principles, and the final test of any line
of reasoning is whether the central principles are kept close. The message is an incremental one. Stay in sight of previous decisions. That way you will not lose sight of the
purpose by which all results shall be measured.
But sometimes, such checks are impossible. When the SCOV drifts into new territories
these core ideas and principles act as primitive compass and astrolabe to guide
the decision through Sargasso Seas of uncharted application. In such cases, the principles do not check
the outcome but offer direction and navigational aid as the law expands to
address a new situation.
The difference between these two schools of thought is the
key to understanding today’s case and the dispute it creates between members of
the SCOV.
Let’s start the analysis at the point of least
contention. Father sought to modify child
support obligations arguing three points.
First, father argued that mother owed him child support because she was
underemployed and should be credited as being capable of earning more
income. Second, father sought credit for
a lump sum payment made by social security.
Third, father argued that the child’s derivative benefit, which social
security paid to mother, should be credited as income coming from him and
should count as a credit to him when calculating the parties’ child support
obligations.
From these arguments, father sought to convert the existing
order that neither party owed child support to the other into an order
requiring mother to pay father child support.
At both the magistrate and trial court level, father lost on
all points. Father appealed, and the
SCOV takes up each issue in turn for a different outcome.
Father was a pro ser
throughout the case. So a lot of the
argument at the SCOV-level stem from the question of whether father did or did
not raise the issues and whether or not he preserved his appeal.
To the first point, the SCOV unanimously rejects father’s
contention that mother is purposefully under employed. When a parent is purposefully underemployed
or unemployed, the courts will look to the potential income of the
underemployed. So if a husband is a hedge
fund manager who quits and starts working the second shift at McDonalds to
thwart his wife, the court will still impute income to him commiserate with the
profession that he voluntarily left. In
other words, you cannot use a divorce as an excuse to leave your anesthesiologist
practice to become a Sherpa.
Here, mother testified that she was laid off work and was actively
seeking new employment. That was good
enough for the trial court, and the SCOV agrees. Being laid off is not voluntary
underemployment, and with no further evidence that wife purposefully sabotaged
her job, there is no imputation of income.
Next, the SCOV is also unanimous in reversing the trial
court on the issue of counting a lump sum disability payment from Social
Security as a credit toward father’s obligation to pay a portion of the child’s
orthodontist bill.
Apparently, father became disabled several years ago
following a motorcycle accident. He
applied for disability benefits from Social Security, which after a two-year
review period were granted. This meant
that Social Security made a one-time lump sum payment to mother to bring what
they call the “derivative benefit” up to date.
A derivative
benefit is a separate payment that Social Security makes for the child of a
disabled adult. It is separate from the
adult’s disability benefits and is intended strictly to benefit the child—because
the disabled parent will no longer be able to provide for the child as fully as
he or she did before their disability. Because
this benefit is for the child, it goes to the child directly. In the case of divorce, that means, the
benefit goes to the parent with legal custody of the child.
At the trial court level, the court denied father’s request
that he receive credit for this lump sum payment. On appeal, though, the SCOV uses the reasoning
and rationale from prior cases to conclude that this derivative benefit must be
credited to the disabled parent. The
rationale is that but for the parent’s disability, the child would not receive
the derivative benefit, which is, in some ways, intended to take the place of
father’s lost income due to his injuries.
The SCOV notes that such a credit is fair because otherwise the mother
would be entitled to collect the benefit and receive payment from the father,
which would constitute a double payment windfall.
Given the low income of both parties, though, it is hard on
a certain level to call this a “windfall”—when you are poor extra money is almost
never a “windfall.” Nevertheless, the SCOV’s point is that this benefit
derives from father’s condition and takes the place of income father would
otherwise have to contribute. It is only
fair that he get some credit for it.
This leads to the final issue, which sharply divides the
SCOV, and raises the question of how much credit can father take for the derivative
benefit and how much of that benefit should he receive.
Father argues that because mother receives the on-going $190-per-month
derivative benefit and because the parties share physical custody of the child,
he should receive some credit for this additional, on-going income. Furthermore, since the court had determined
the parties’ income and expenses to be equal, this $190 tips the scales to mean
that father is entitled to child support payments from mother.
Let’s start with Justice Dooley’s dissent. The dissent starts by noting that what father
is essentially asking for is a deviation from the child support guidelines in
the original child support order.
Basically, dissent characterizes father’s request as one to deviate from
the standard child support guidelines that would normally govern the parties’
obligations. The dissent notes that
father did not properly raise the deviation issue and that the magistrate who heard
the original issue did not open a deviation hearing or take full testimony from
the parties about their total income that might offset or cancel out the
supposed credit created by this $190 derivative benefit. As a result, the dissent would not take up
the issue as improperly preserved and improperly waived.
The dissent, however, also goes to the merits of the issue. Its analysis sticks to the shore and never
leaves sight of the purpose and core principles of the derivative benefit. The dissent notes that this benefit belongs
entirely to the child and that the mother is bound by a fiduciary duty to the
child to use the payments for the child’s benefit. As part of this program she must account for
all payments to the Social Security Administration on a yearly basis.
The dissent notes that this on-going benefit is not really income
attributable to the father and cannot, by federal law, be broken up or shared
between the parents. The dissent notes
that no court in the United States has credited a disabled parent for these
benefits when it comes to allocating child support obligations. They are a factor in the analysis of the
child’s needs, but they do not constitute a basis for one parent to make
payments to another. In fact, courts
have routine ruled the other way.
When a disabled parent has claimed such benefit it has been
denied. True, in all cases, the disabled
parent did not share custody, but for the dissent that is not the point. The derivative benefit payment is a separate
fund strictly for the child, which the custodial parent receives and holds in
trust. For these reasons, the dissent
would affirm the trial court and deny father’s motion for whatever credit or
payment he sought on this ground.
The majority disagrees and sets sail for more adventurous seas. The majority begins with the question of whether
father properly preserved and raised the issue.
The majority disagrees with the dissent’s analysis that father was
requesting or that the magistrate denied a deviation hearing. Instead, the majority characterizes father’s
motion as a request to modify the child support order. Under this framework, the majority finds that
the request was properly made, squarely denied, and properly appealed.
In other words, cast off this analysis is sailing.
Comparing the dissent and the majority, it is clear that the
majority is giving some leeway to the father’s pro se filings and
arguments. On one hand, it is
frustrating for lawyers to watch how the SCOV and the courts grant a bit more
discretion to self-represented litigants.
On the other hand, you can note that the pro se father in this case nearly
sunk his own craft by inarticulate arguments at the trial court level.
So the majority dives into the question of whether father deserves
a credit for the derivative benefits.
The majority rests its analysis on a prior case, Cantin
v. Young. In that case, the SCOV
ruled that a derivative benefit to the child resulting from a parent’s
disability should be considered part of the parent’s gross income and that any calculation
of child support should credited as a payment from the disabled parent.
The majority finds that the magistrate correctly imputed the
derivative benefits as income to the father, but that the magistrate failed to
make the second step and award father credit for such payments in its final
calculations. For the majority, this is
a matter of logical consistency and adherence to the principles underlying
child support calculations. The benefits
take the place of what the disabled parent would otherwise bring in income, and
a result, they must be counted and credited.
In response to the dissent and the trial court’s positions,
the majority notes that this is not a matter of splitting the derivative benefit
but of adding it into the pot and of giving the father credit for these
payments as contribution to child support.
Here is where the majority goes a little further,
though. Crediting father with the
derivative benefits means that father has effectively “over-contributed” to his
child support obligations. Mother argued
that this was inappropriate since a derivative benefit cannot create payment
obligation. In other words, if you
consider the derivative benefit to be an over payment, then father will be
entitled to a payment back from mother. As
Mother and dissent note, no court has done this.
The majority, however, goes there. The difference here is that mother and father
share physical custody of the child.
Therefore, the underlying purpose of the derivative benefit and child
support payments is served by crediting father with these payments because father
is providing close to 50% of the child’s living environment.
To put it more simply, the majority rules that it is fair to
credit father for these payments even if it means mother will owe father because
father will use the money to provide for the child.
In coming to this conclusion, the majority creates a
distinction of which practitioners should take note. If the disabled parent does not have shared physical
custody of the child (meaning custody of the above the threshold amount of 30%),
then derivative benefits should not be credited to the disabled parent. But if the parent does have shared custody,
then the derivative benefits can and will be credited to the disabled parent in
calculating the child support payments obligations.
As the majority notes, the result may very be that the
custodial parent who has physical custody of the child a greater portion of the
time may still end up owing the other parent for child support.
The problem the majority notes is that none of the previous
decisions have had to face the question of allocating derivative payments in a
shared custody decision. All of the
cases cited by the dissent dealt with situations where the disabled parent did not
have shared custody. This is a
distinction that the dissent disregards, but it is one that the majority charts
as key. The majority notes that if it
ruled either way it would be breaking new ground.
There is a little more back-and-forth between the majority
and the dissent analyzing the underlying cases and what each characterizes as
the real issues at play in the case, but the majority’s opinion also seems
poised to defend its choice and position to the larger legal community and to
make clear when a derivative benefit may be credited as part of the child
support calculations. The majority’s
efforts are to make its reasoning and application stick.
With four votes, the majority carries today. The case is reversed and remanded with direction
to the trial court to credit father with the amount of derivative benefit
received by mother on behalf of the child.
Of course, the majority all but invites mother to file her own deviation
motion to argue that notwithstanding the credit the parties should still be
kept at the present zero-child support obligation level.
No doubt one can hear the mother’s attorney already
sharpening her pencil to take on this brave new world.
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