Mosley v. Mosley

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia

GARY S. MOSLEY
OPINION BY
v. Record No. 2851-98-2 JUDGE LARRY G. ELDER
NOVEMBER 2, 1999
DONNA S. MOSLEY

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge

Denis C. Englisby (Englisby & Englisby, on
brief), for appellant.

No brief or argument for appellee.

Gary S. Mosley (husband) appeals from an order of the

circuit court refusing his request for certain credits against

accrued arrearages of spousal support and retirement benefits

due to Donna S. Mosley (wife) pursuant to the parties' final

decree of divorce. Husband contends that social security

disability payments made to wife on behalf of the parties' child

as a result of husband's disability, to the extent those

payments exceeded amounts husband owed for child support, should

have been credited against finite arrearages of spousal support

and retirement benefits he owed wife. We hold that wife held

those excess sums for the benefit of the child and, therefore,

that husband is not entitled to credit as against obligations

owed to wife in her capacity as a former spouse rather than as a
custodial parent. Accordingly, we affirm the trial court's

ruling.

I.

FACTS

Pursuant to a final decree of divorce, as part of the

equitable distribution award, the court ordered husband to pay

wife a portion of his military retirement benefits. The court

also ordered husband to pay spousal and child support. Husband

failed to pay wife the ordered share of his military retirement

pay. Husband also failed to pay the ordered spousal support

that was payable until wife remarried. The court found that the

amount of the accrued spousal support arrearage for the period

of approximately twelve months was $7,843.32 and that the

accrued retirement benefit arrearage was $16,320 at the time of

the hearing.

Husband made all child support payments, in the ordered

amount of $276 per month, through July 1996. By that time,

husband had become disabled and had begun receiving social

security disability payments. Beginning in August 1996, wife

received $515 per month which was paid to her directly from

husband's disability benefits for the benefit of the parties'

child.

By motion filed May 19, 1997, husband moved the court to

reduce the amount of his child support obligation based on

husband's disability and resulting reduction in income. The

- 2 -
trial court granted the motion, reduced the amount to $201 per

month and made the reduction effective retroactive to the filing

of husband's May 1997 reduction motion.

Husband thereafter sought a credit, against his arrearages

of retirement benefits and spousal and child support, for the

$515 monthly social security disability payments made to wife

for the benefit of their child. The trial court found that

husband was in arrears, as set out above, in his payments of

retirement benefits and spousal and child support. It

calculated an arrearage of child support but ruled, as wife had

agreed, that husband was entitled to credit for the disability

payments made to wife on behalf of the child and that these

payments extinguished the accumulated child support arrearage.

It did not allow husband credit for the overpayment against the

spousal support or retirement benefit arrearages. 1

II.

ANALYSIS

We previously have held that when a portion of a

non-custodial parent's social security disability benefits are

paid to a custodial parent on behalf of the parties' child,

those monies constitute an indirect payment from the

1
The trial court entered judgment against husband for the
accrued spousal support and retirement pay arrearages. It also
directed, pursuant to federal statute, that the Department of
Defense divert a specified portion of husband's military
retirement and pay it directly to wife until the judgment for
the spousal support arrearage is satisfied.

- 3 -
non-custodial parent for which that parent should receive

prospective credit against an ongoing child support award. See

Whitaker v. Colbert, 18 Va. App. 202, 205-06, 442 S.E.2d 429,

431-32 (1994) (also holding that amount of social security

payment should be imputed as income to non-custodial parent

under Code § 20-108.2(C) for purposes of calculating amount of

child support owed). This is so because

[t]he social security benefits received by
the children are not gratuities, but are
entitlements earned by [the non-custodial
parent] through his earlier employment.
They are a substitute for his lost ability
to provide for the children through the
fruits of future employment. They are much
the same as benefits under a disability
insurance policy.

Id. at 205-06, 442 S.E.2d at 431. "The sole and express purpose

of social security dependent benefits is to support dependent

children." In re Marriage of Henry, 622 N.E.2d 803, 809 (Ill.

1993) (citing Jimenez v. Weinberger, 417 U.S. 628, 634, 94

S. Ct. 2496, 2500, 41 L. Ed. 2d 363, 369 (1974)). "Thus, the

source and the purpose of social security dependent benefits are

identical to the source and purpose of child support-both come

from a non-custodial parent's wages or assets and both provide

for the needs of the dependent child." Id.

We also have held that a court may, in its discretion,

award a non-custodial parent credit for such payments against an

accumulated arrearage of child support. See Department of Soc.

- 4 -
Servs. v. Skeens, 18 Va. App. 154, 159-60, 442 S.E.2d 432,

435-36 (1994).

Whether a trial court elects to credit all
or a portion of Social Security payments
against [an accumulated arrearage of] a
court-ordered support obligation should
depend upon a number of factors, including
but not limited to the extent to which the
original support award was sufficient or
deficient in meeting the child's needs,
whether any modification of the support
award has been made based upon the parent's
disability, or a change in the child's
needs, or the parents' abilities to provide
support independent of the Social Security
payments, and whether both parents have
acted in good faith.

Id. at 160, 442 S.E.2d at 436. In Skeens, we noted that,

although the father should not be rewarded for allowing his

child support payments to fall into arrears, the record

contained no indication that he had any source of income or

assets other than his social security disability benefits from

which his support obligation or arrearage could be paid. See

id. As a result, we held the trial court did not abuse its

discretion in ruling that "equity required" such a credit. See

id.

In the case of a credit for an accumulated arrearage of

child support, we have rejected the argument that such a credit

constitutes a retroactive modification of the child support

award. See id. at 158-59, 442 S.E.2d at 435. In granting such

a credit, "the court does not alter the amount of child support

that the parent has been ordered or is required to pay. The

- 5 -
court simply allows a source of funds, indirectly attributable

to a parent, to be used to satisfy the parent's court-ordered

[child] support obligation. Id. at 159, 442 S.E.2d at 435.

Such an approach is in keeping with the more general principle

that "[a] court may, when equitable and under limited

circumstances, allow a party credit for non-conforming support

payments, provided that the non-conforming payment substantially

satisfies the purpose and function of the support award." Id.

at 158, 442 S.E.2d at 435.

We have not heretofore considered whether any excess social

security disability payments, above and beyond the amounts

necessary to satisfy current or past-due child support

obligations, may be credited against a spousal support award or

retirement benefits due under an equitable distribution award.

In this appeal, appellant asks us to apply both past and future

excess disability payments made to his former wife for the

benefit of their child to satisfy a finite arrearage of spousal

support and a finite sum of unpaid retirement benefits due

pursuant to the equitable distribution award. We hold that the

credits he seeks are not available under Virginia law, and we

affirm the trial court's ruling.

The social security disability benefits received by wife

are for the benefit of the parties' child. See Whitaker, 18 Va.

App. at 205-06, 442 S.E.2d at 431-32; see also Henry, 622 N.E.2d

at 809. Although our case law permits these sums, to the extent

- 6 -
they exceed husband's ongoing monthly child support obligation,

to be applied to child support arrearages in the discretion of

the court, see Skeens, 18 Va. App. at 159-60, 442 S.E.2d at

435-36, we hold that any additional excess sums nevertheless are

for the benefit of the child and may not be credited against

obligations owed to wife in her capacity as a former spouse

rather than as a custodial parent.

The principles governing credit for non-conforming support

payments make this clear. "As a general rule, the obligor

spouse may not receive credit for non-conforming . . . support

payments. The rule is intended to avoid 'continuous trouble and

turmoil.'" Wilderman v. Wilderman, 25 Va. App. 500, 505-06, 489

S.E.2d 701, 704 (1997) (quoting Henderlite v. Henderlite, 3 Va.

App. 539, 542, 351 S.E.2d 913, 914 (1987)) (citation omitted).

Ordinarily, "two conditions must exist before credits will be

given for non-conforming payments: (1) an agreement by the

parties which modifies the terms or method of payment; and (2)

no adverse affect on the support award." Id. at 506, 489 S.E.2d

at 705; see Buxbaum v. Buxbaum, 20 Va. App. 181, 184-86, 455

S.E.2d 752, 754-55 (1995) (refusing to allow husband credit

against future spousal support obligation for additional

payments made under terms of child support agreement because no

agreement between parties to that effect). However, "an

'unequivocal agreement' may not be necessary where

non-conforming support payments 'substantially satisf[y] the

- 7 -
purpose and function of the support award . . . and [do] not

vary the support award.'" Wilderman, 25 Va. App. at 508, 489

S.E.2d at 706 (quoting Skeens, 18 Va. App. at 158, 442 S.E.2d at

435).

We hold that a non-custodial parent's social security

disability benefits paid to the custodial parent, beyond those

amounts needed to satisfy current and past-due child support, do

not, as a matter of law, "substantially satisf[y] the purpose

and function of [a spousal] support award." See id. (emphasis

added). Spousal support is awarded based on the circumstances

that existed during the parties' prior marriage. See, e.g.,

Brown v. Brown, 5 Va. App. 238, 246, 361 S.E.2d 364, 368 (1987).

Social security disability payments do not depend on the

circumstances during the parties' prior marriage; those payments

are solely for the benefit of the child and are based on the

child's status as a dependent of the disabled parent. See,

e.g., Henry, 622 N.E.2d at 808-09. Further, the custodial

parent, in effect, receives the social security disability "in a

kind of fiduciary capacity, with the obligation to expend it for

the support of the [parties'] child[]." Poland v. Poland, 895

S.W.2d 670, 672 (Mo. Ct. App. 1995) (holding husband was not

entitled to offset monies he owed wife for child support against

monies wife allegedly owed him pursuant to property settlement

agreement because wife received child support monies in trust

for benefit of children). Therefore, we hold that a disabled,

- 8 -
non-custodial parent may not receive credit for social security

disability payments in excess of that due for child support as

against past-due spousal support. 2 For the same reasons, we hold

that the non-custodial parent also may not receive credit

against monies due his former spouse pursuant to an equitable

distribution award. See, e.g., Lightburn v. Lightburn, 22 Va.

App. 612, 619, 472 S.E.2d 281, 284 (1996) (noting that purpose

of equitable distribution award is to divide marital wealth and

that "'[t]he clear legislative intent embodied in [statutes] is

to maintain an appropriate separation between considerations of

child or spousal support and considerations of an equitable

distribution of marital wealth'" (citation omitted)).

For these reasons, we affirm the trial court's ruling.

Affirmed.

2
We do not decide whether payment of monthly disability
benefits in excess of the amount of court-ordered child support
may serve as a material change in circumstances justifying
modification of an ongoing spousal support award. Here,
husband's spousal support arrearages accumulated before husband
became disabled and, therefore, were fixed and not subject to
modification.

- 9 -