Saturday, July 18, 2015

Derivative Disability Dollars Deux

LaMothe v. LeBlanc, 2015 VT 78

By Andrew Delaney

We’ve talked about this case before, though it’s been a few years. Though there's already been one reversal, things have not changed a whole lot. This  is a parentage case that’s gone through a few permutations. The bottom line is that dad still wants mom to pay him.

Originally, mom and dad agreed that mom would have the kid most of the time and dad would pay child support. Then dad got in a motorcycle accident, became disabled, and they agreed neither would pay child support. Then—because mom was the kid’s representative payee and dad got a substantial retroactive benefit payment from social security—mom got a substantial derivative lump-sum benefit payment from social security. She continues to get a monthly payment to child through dad’s disability.

Dad filed a motion asking for mom to pay him child support from the derivative monthly payment, and to apply the lump-sum payment to his share of the kid’s braces. He also asked the family division to impute income to mom. The trial court denied the motion in its entirety, and dad appealed. The SCOV reversed, holding that without a deviation, dad was entitled to child support in an amount equal to the derivative-benefit payment minus his guideline-based child-support obligation. The SCOV also said to apply the lump-sum to dad’s share of the uninsured dental expenses. The SCOV said that the decision not to impute income to mom was fine though.

On remand, the magistrate again found that mom wasn’t voluntarily underemployed. The magistrate looked at the deviation factors and decided neither party would pay child support to the other, even though dad would’ve otherwise been entitled to $100-150 a month from mom. The magistrate gave dad a credit of half the uninsured dental expenses (less than the full lump-sum amount) and ordered mom to pay dad $50 a month until the credit was paid off. Dad appealed to the family division, which affirmed, and so dad appeals to the SCOV.

Dad’s arguments are that the magistrate screwed up by not giving him a credit for the whole amount; that the magistrate should’ve found mom voluntarily underemployed and not deviated from the guidelines.

The SCOV works from the magistrate’s record, deferring to the magistrate’s factual findings and upholding legal conclusions if supported by the findings.

The SCOV deals with the lump-sum-derivative-benefit issue first. Dad’s reasoning is that they have almost-equal time with the kid and there was a zero-child-support order going both ways. Thus, when mom got the lump-sum payment, dad argues, he was paying child support. He contends that by not ordering that mom repay the entire amount, the magistrate essentially retroactively modified the child-support order, which is a no-no.

The SCOV disagrees, reasoning that the lump-sum applied to existing obligations. Because the only existing obligation was the uninsured dental expenses (see the nobody-pays-nobody-nothin’ setup), then to require mom to repay dad the full amount would actually be a prohibited retroactive modification. The SCOV points to a recent case for the premise that “excess” (meaning the difference between the obligation and the lump-sum payment) in the social-security-derivative-payments context “should be considered as a gratuity for the child.”

Next, the SCOV tackles dad’s mom-is-actually-underemployed beef. Here, the SCOV reasons that the magistrate made the requisite findings and notes that mom certainly appears to be trying to work, so there’s no reason to disturb the magistrate’s ruling in that regard. The SCOV concludes “that the record supports the magistrate’s decision.”

The child-support guidelines provide what are “presumed to be the amount of child support needed.” There are ten factors to consider in deviating from the guidelines. The magistrate concluded that deviation was appropriate in part because dad enjoys a much-higher standard of living—due in part to having married a woman with significant assets—and lives in a 3500-square-foot house, whereas mom lives in a decrepit twenty-two-year-old mobile home. The magistrate reasoned that dad had no problem supporting the child in his household without mom’s help, and that mom was “in no position” to support dad. Accordingly, the magistrate concluded that it would be unfair not to deviate from the guidelines—that requiring mom to pay support to dad would jeopardize her and the child’s home even.

Dad argues that the magistrate stepped outside the factors in considering his wife’s income and assets, but the SCOV disagrees—noting that dad’s living situation is directly relevant to dad’s financial resources available, and that even if it wasn’t, there’s a catch-all “any other factors” factor in the statute.

The last issue is disposed of quickly. Dad takes issue with the guidelines calculations made by the magistrate, but this falls into “no harm, no foul” territory as the SCOV is upholding the deviation, so the SCOV doesn’t get into that. And so the SCOV affirms.

This is totally irrelevant, but there's a joke that involves social security and since you've bothered to read this far, you might as well get a chuckle.
After retiring, I went to the Social Security office to apply for Social Security. The woman behind the counter asked me for my driver’s license to verify my age. I looked in my pockets and realized I had left my wallet at home. I told the woman that I was very sorry, but I would have to go home and come back later. 
The woman said, "Unbutton your shirt." So I opened my shirt revealing my curly silver hair. She said, "That silver hair on your chest is proof enough for me" and she processed my Social Security application. 
When I got home, I excitedly told my wife about my experience at the Social Security office. 
She said, "You should have dropped your pants. You might have gotten disability, too." 
And then the fight started . . . . 

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