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In re Stephenson and Papineau

Court of Appeals of Kansas

September 13, 2013

In the Matter of the Marriage of Jeri D. STEPHENSON, Appellee, and Gregory J. PAPINEAU, Appellant.

Syllabus by the Court

1. As a general rule in Kansas, when a minor child receives Social Security disability benefits as part of an obligor parent's Social Security disability award, any amount in excess of the child support owed by the obligor parent is considered a gratuity that inures solely to the benefit of the child.

2. Under the facts of this case, an obligor parent is not entitled to reimbursement for timely child support payments made during months for which the minor children ultimately receive a retroactive lump-sum payment of the obligor parent's Social Security disability benefits.

John W. Fresh, of Larry R. Mears, Chartered, of Atchison, for appellant.

J. David Farris, of J. David Farris Law Offices, of Atchison, for appellee.

Before MALONE, C.J., ATCHESON, J. and LARSON, S.J.

MALONE, C.J.

Gregory J. Papineau appeals the district court's order denying his motion to modify child support. Papineau contends that he is entitled to reimbursement from Jeri D. Stephenson, his former wife, for child support payments he made to her on behalf of their minor children during months for which Stephenson, as representative payee for the minor children, ultimately received a retroactive lump-sum payment of Papineau's Social Security disability benefits. For the reasons set forth herein, we affirm the district court's order.

The facts are undisputed but also somewhat sketchy. Papineau and Stephenson were married in 1997. They had two children during the marriage, born in 2002 and

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2004. When they divorced in 2006, Stephenson was granted primary residential custody of the minor children. Both parties were employed full time, and child support responsibilities were allocated based on their earnings for full-time employment as well as the cost of health insurance, daycare, and related expenses. Papineau was ordered to pay child support to Stephenson in the amount of $782 per month.

In 2010, Papineau became permanently and totally disabled and unable to work. At the time he became disabled, he began receiving disability payments from a long-term disability insurance policy issued by Standard Insurance Company (Standard). The record does not reflect the amount of benefits paid by Standard. Papineau made no attempt to modify his child support obligation when he became disabled and unable to work in 2010. Instead, from 2010 until August 2012, Papineau continued to pay child support to Stephenson in the amount of $782 per month.

Papineau also filed for Social Security disability benefits, although the record does not reflect when Papineau initially filed his claim. Effective March 21, 2012, Papineau was awarded Social Security disability benefits. As part of Papineau's benefits, the minor children were awarded monthly benefits of $802 and a retroactive lump-sum payment of approximately $5,600. The record does not reflect how these benefits were calculated. Stephenson was designated by the Social Security Administration as the representative payee for the minor children and receives the payments on the children's behalf. According to the briefs and counsels' statements at oral argument, Stephenson has set aside the lump-sum payment to start a college fund for the children.

On August 22, 2012, Papineau filed a motion to modify child support, asking in part for reimbursement of the child support payments he made to Stephenson during the months for which Stephenson, on behalf of the minor children, ultimately received the retroactive lump-sum payment of Papineau's Social Security disability benefits. The parties submitted the motion to the district court on stipulated facts. The parties agreed in district court that the Social Security payments of $802 per month for the benefit of the minor children satisfied Papineau's current child support obligation. The only issue for the district court to decide was whether Papineau was entitled to reimbursement of the child support payments he made to Stephenson during months for which Stephenson ultimately received the retroactive lump-sum payment.

According to the stipulated facts, Standard claims subrogation rights to all Social Security disability benefits received by Papineau and his minor children, including the retroactive lump-sum payment awarded for the benefit of the minor children. But Standard is not a party to this case, and the status of its subrogation claim is not clear from the record on appeal.

The district court denied Papineau's motion to modify child support. Relying on In re Marriage of Hohmann, 47 Kan.App.2d 117, 274 P.3d 27 (2012), rev. denied 297 Kan. ---- (May 20, 2013), the district court found that Papineau was not entitled to reimbursement of any child support payment in excess of the amount owed because the excess benefit is a gift that inures to the benefit of the children. The district court further found that any subrogation claim by Standard was irrelevant because the insurance company would have no right of subrogation against benefits that belong to the minor children, who are not parties to the insurance contract. Papineau timely appealed the district court's order.

On appeal, Papineau again contends that the district court erred in finding that he was not entitled to reimbursement of child support payments that he made during months for which his minor children ultimately received a retroactive lump-sum payment of his Social Security disability benefits. He acknowledges that as a general rule in Kansas, when a minor child receives Social Security disability benefits as part of an obligor

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parent's Social Security disability award, any amount in excess of the child support owed by the obligor parent is considered a gratuity that inures solely to the benefit of the child. See Hohmann, 47 Kan.App.2d at 118-21, 274 P.3d 27 (citing Andler v. Andler, 217 Kan. 538, 542-44, 538 P.2d 649 [1975]; In re Marriage of Williams, 21 Kan.App.2d 453, 454-56, 900 P.2d 860 [1995] ). Papineau concedes that to the extent that the $802 per month that his minor children receive from his Social Security disability benefits exceeds the $782 per month he owes in child support, the excess inures solely to the benefit of the children.

But Papineau argues that his children did not merely receive excess benefits but in fact received double benefits for certain months, i.e., once when he paid child support on time and in full, and again when the children received a retroactive lump-sum payment of his Social Security disability benefits covering months for which he already had paid child support. He points out that if his children had received his Social Security disability benefits contemporaneously rather than retroactively for those months, his child support obligation for those months would have been fulfilled. Papineau claims that his children have no legal or equitable right to a double payment and that as a policy matter, refusing to reimburse an obligor parent for child support payments made while a Social Security disability claim is pending creates a disincentive for the obligor parent to remain current on his or her child support payments.

Finally, Papineau argues that this court should equitably consider the fact that Standard is seeking subrogation of his Social Security disability benefits paid for the benefit of his minor children. He contends that if Standard is successful in its subrogation claim, he effectively will be required to pay his child support obligation three times for the relevant months, i.e., first as a regular child support payment, second as a Social Security disability benefit, and third in repayment to Standard.

The sole issue on appeal is whether an obligor parent is entitled to reimbursement of child support payments made during months for which the minor children ultimately receive a retroactive lump-sum payment of the obligor parent's Social Security disability benefits. This is a question of law, over which an appellate court has unlimited review. See Hohmann, 47 Kan.App.2d at 119, 274 P.3d 27.

Kansas courts have never squarely decided the issue presented in this case. But several cases are instructive, beginning with the Kansas Supreme Court's decision in Andler. In that case, the father began making child support payments to his former wife on behalf of their minor children in January 1970. That same month, the former wife began receiving the father's Social Security disability benefits on behalf of the minor children. The father made four child support payments (January to April 1970) before he discontinued the payments because he had no money with which to make them. In August 1973, the former wife brought a motion for contempt against the father for failure to pay child support. The district court terminated the father's obligation to make future child support payments because his future obligation was satisfied by the monthly Social Security disability benefits, but the district court found that the father had a judgment against him for the previously accrued unpaid child support.

On appeal, our Supreme Court reversed the district court's determination that the father had a judgment against him for the previously accrued unpaid child support. Our Supreme Court held that where a father who has been ordered to make child support payments becomes totally and permanently disabled and unconditional Social Security payments for the benefit of the minor children are paid to the divorced mother, the father is entitled to credit for such payments by the government against his liability for child support under a divorce decree to the extent of, but not exceeding, his monthly obligation for child support. 217 Kan. at 544, 538 P.2d 649. In reaching this decision, our Supreme Court rejected the district court's reasoning that the father waived his right to

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seek relief because he made four child support payments after the disability benefits had commenced:

" It is apparent the [father] was unaware of his legal remedy, if any, when he made the first four child support payments. His failure to immediately assert such remedy does not waive his right to seek relief in a case such as this. The [father] asserted a good faith effort, and clean hands under equitable principles, until he had exhausted his financial resources. Under the circumstances here presented the four payments of child support ... must be regarded as gratuities for the children. [Citation omitted.]" 217 Kan. at 545, 538 P.2d 649.

The next case dealing with this topic is Williams. In that case, the father was ordered to pay $250 per month in child support for his minor child. He stopped making those payments in December 1986. In 1989, the Social Security Administration found the father to be totally disabled due to a mental condition and began paying disability benefits in the amount of $555 per month on behalf of the minor child. Eventually the father asked the district court to apply the excess disability payment ($305 per month) to his child support arrearages that had accrued before the father became disabled. The district court ruled that the disability benefits received by the minor child were to be credited against current support then due, but that the father was not entitled to any credit against past-due support.

On appeal, this court affirmed the district court's ruling and held that a child's Social Security benefit payments may be credited against a current child support obligation accruing during the corresponding month but may not be credited against past-due child support obligations accruing prior to the start of the Social Security benefit payments. 21 Kan.App.2d at 455-56, 900 P.2d 860. This court found that the excess benefit results in a windfall that should inure to the benefit of the child, not the defaulting father. 21 Kan.App.2d at 456, 900 P.2d 860.

We recognize that the facts presented in Andler and Williams are distinguishable from the facts herein. In Andler and Williams, the court was not faced with a situation where the minor children were awarded a retroactive lump-sum payment of Social Security disability benefits. Also, in Andler and Williams the father had defaulted on the child support obligation, whereas Papineau made all child support payments on time from the date of his disability until the date he filed his motion to modify child support.

More recently, this court addressed the issue of disability payments and child support in Hohmann. In that case, the issue was whether a disabled father's child support arrearages could be satisfied by a retroactive lump-sum payment to the mother, on behalf of the minor children, of the father's Social Security disability benefits covering the months during which the arrearages accrued. The mother argued that if the court allowed the retroactive lump-sum payment to apply to child support arrearages accrued during the months covered by the lump-sum payment, then by logical extension if there was no arrearage she would have to reimburse the father for the timely child support payments that he had made. This court declined to rule on the mother's hypothetical factual scenario but noted that " the majority of courts who have decided this issue have found that the nonobligor parent is not required to return such ‘ overpayments' to the obligor parent. Most courts view it as a voluntary overpayment that inures solely to the benefit of the child. [Citations omitted.]" 47 Kan.App.2d at 121, 274 P.3d 27. This court ultimately ruled that the retroactive lump-sum payment of the father's Social Security disability benefits could be applied to the child support arrearages that accrued during the months covered by the retroactive lump-sum payment. 47 Kan.App.2d at 121, 274 P.3d 27.

Finally, in In re Marriage of Taber, 47 Kan.App.2d 841, 280 P.3d 234 (2012), petition for rev. filed July 20, 2012, this court reaffirmed its decision in Hohmann that an

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obligor parent's child support arrearages could be satisfied by a retroactive lump-sum payment of Social Security disability benefits covering the months during which the arrearages accrued. But like the mother in Hohmann, the Kansas Department of Social and Rehabilitation Services argued hypothetically in Taber that if an obligor parent has timely paid his or her child support and subsequently the children receive a retroactive lump-sum payment covering months already paid by the obligor parent, then the nonobligor parent would be required to reimburse the obligor parent for the overpayment. This court again noted that the majority of courts take the view that no reimbursement is required because the overpayment is deemed a gift to the children. 47 Kan.App.2d at 846, 280 P.3d 234. This court specifically noted that in Andler, the four child support payments made by the father during months for which his children also received his Social Security disability benefits were " regarded as gratuities for the children." Taber, 47 Kan.App.2d at 846, 280 P.3d 234 (quoting Andler, 217 Kan. at 545, 538 P.2d 649).

In Hohmann and Taber, this court responded to a hypothetical argument that now is squarely presented in the case herein. In both decisions, this court surmised that a nonobligor parent would not be required to reimburse an obligor parent for what could be deemed as overpayments of child support caused by a retroactive lump-sum payment of Social Security benefits. Although the dicta in Hohmann and Taber is not controlling here, we find that these decisions provide persuasive authority for the proposition that an obligor parent is not entitled to reimbursement for timely child support payments made during months for which the minor children ultimately receive a retroactive lump-sum payment of the obligor parent's Social Security disability benefits.

Papineau argues that his children have no legal or equitable right to a double payment of child support, which he claims they are receiving unless he is reimbursed for the child support he paid during the months covered by the retroactive lump-sum disability payment. But as this court noted in Hohmann and in Tabor, courts in other jurisdictions have considered and rejected this argument. For example, in Keith v. Purvis, 982 So.2d 1033 (Miss.App.2008), the noncustodial father was ordered to pay child support in the amount of $350 per month on behalf of his minor child. In 2001, the father suffered a stroke and became disabled, but he faithfully met his child support obligations until August 2006. The father and child became eligible for Social Security disability benefits, and in September 2006, the child received a retroactive lump-sum payment of $20,164. The father petitioned the court for an order requiring his former wife to reimburse him for child support payments he made during the 22-month period covered by the retroactive lump-sum disability award received by the child. The district court ruled that the father was not entitled to reimbursement of child support.

On appeal, the Court of Appeals of Mississippi held that the district court did not err in denying the father reimbursement for support payments made during the 22-month period covered by the lump-sum payment of retroactive disability benefits subsequently received by the child. 982 So.2d at 1038-39. The court determined that the Social Security disability benefits received by the child belonged to the child and rejected the father's claim of a double payment:

" [The father's] claim for reimbursement is essentially a claim of unjust enrichment. However, we find that [the father] has not ‘ overpaid’ his support obligation, in that, the disability benefits [the child] received from the Social Security Administration never belonged to [the father]. On this point, the court in [ Mask v. Mask, 95 N.M. 229, 620 P.2d 883 (1980),] authoritatively stated as follows in determining that social security benefits received by a child belong to the child and not the non-custodial parent:
" ‘ The Social Security Act, Title 42, U.S.Code, Section 401 et seq., provides that every dependent child of an individual

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who is entitled to Social Security benefits shall be entitled to a child's insurance benefit.... We determine from this that the benefit inures directly to the child, notwithstanding the prerequisite status of the parent. No indices of the father's ownership ever attached to these funds.’
Mask, Fuller v. Fuller, 49 Ohio App.2d 223 360 N.E.2d ...

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