Davis v. Davis

SANDSTROM, Justice.

[¶ 1] D. Luke Davis appeals from a judgment dismissing his action against Pamela Gordon Davis to recover an overpayment of child support. Because the Child Support Guidelines mandate that D. Luke Davis be reimbursed for his overpayment of child support under the circumstances, we reverse.

I

[¶ 2] D. Luke Davis and Pamela Gordon Davis divorced in February 1997. Under the terms of the divorce judgment, Pamela Gordon Davis was awarded custody of the couple’s two children, and D. Luke Davis was ordered to pay a total of $425 per month in child support for both children. From January 2004 through February 2007, D. Luke Davis made child *708support payments totaling $15,727.97 through the Grand Forks Regional Child Support Unit.

[¶ 3] As the result of a work-related injury, D. Luke Davis applied for and received disability benefits under the federal Social Security Act. Under 42 U.S.C. § 402 of the Social Security Act, a child of an individual found to be disabled is eligible for additional monthly benefits. Pamela Gordon Davis applied for those benefits on behalf of the children, and in December 2006, each child began receiving $330 per month. In March 2007, the Social Security Administration also paid each child $11,791, for a total lump sum payment of $23,582, for back pay from January 2004 through March 2007. On March 30, 2007, Pamela Gordon Davis created two separate $10,000 certificates of deposit for the children as the custodian under the state Uniform Transfers to Minors Act, N.D.C.C. ch. 47-24.1. In April 2007, Pamela Gordon Davis provided written verification to the Grand Forks Regional Child Support Unit of the children’s receipt of the social security payments.

[¶ 4] In February 2008, D. Luke Davis brought this action against Pamela Gordon Davis to recover the child support payments he had made from January 2004 through February 2007, plus interest, alleging those payments constituted an overpayment of his child support obligation after the children’s social security benefits were received and credited as child support under N.D. Admin. Code § 75-02-04.1-02(11). During an evidentiary hearing, Pamela Gordon Davis testified $8,000 from the lump sum payment had been used to pay for one child’s college tuition. D. Luke Davis testified the child support payments he had made “were not a gift, but under duress made by me.” The district court dismissed the action. Relying on caselaw from other jurisdictions, the court concluded Pamela Gordon Davis was not required to reimburse D. Luke Davis because the child support payments from January 2004 through March 2007 “were for the immediate benefit of the supported children,” the “lump sum disability payments for the children were for their benefit,” and those funds “are being used for the children’s benefit.”

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. D. Luke Davis’s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 6] D. Luke Davis argues the district court erred in dismissing his action because he is entitled to the return of the excess child support received by Pamela Gordon Davis after the lump sum social security disability benefits were credited to his child support obligation under N.D. Admin. Code § 75-02-04.1-02(11).

[¶ 7] This Court first addressed social security dependency benefits paid to children of a disabled obligor and their effect on an obligor’s child support obligation in Guthmiller v. Guthmiller, 448 N.W.2d 643 (N.D.1989). In Guthmiller, the obligor, who had been declared disabled and had been awarded disability payments, sought to obtain credit on his child support obligation for the children’s social security benefits that his former spouse received as representative payee for the children. Id. at 644. This Court, following the majority rule, held social security dependency payments made directly to the obligor’s children or for their benefit “ordinarily” constitute a change of circumstances for which the obligor is entitled to a credit toward the child support obligation. Id. at 647; see also M. DiSabatino, Annot., Right to *709credit on child support payments for social security or other government dependency payments made for benefit of child, 34 A.L.R.5th 447 (1995). Relying on Children and Youth Servs. v. Chorgo, 341 Pa.Super. 512, 491 A.2d 1374, 1377-78 (1985), this Court rejected the contention that the obligor should not receive credit because the benefits are owned by the children, reasoning the benefits were occasioned by the obligor’s employment and the obligor’s receipt of a credit had no effect on the children, who would receive the same amount of support a court decided they should receive. Guthmiller, at 647. This Court did not rule a credit must always be given, an option the court in Chorgo, 491 A.2d at 1378, found was not supported by any caselaw, but held “there is a presumption that credit will be applied, which is rebutted only by articulated reasons supporting the conclusion to the contrary in the court’s support order.” Guthmiller, at 648. This Court also held the credit cannot be applied retroactively toward arrearages, id. at 649, and we have applied that holding in subsequent decisions. See Austin v. Towne, 1997 ND 59, ¶¶ 14-15, 560 N.W.2d 895; Mehl v. Mehl, 545 N.W.2d 777, 780-81 (N.D.1996).

[¶ 8] Effective January 1, 1995, N.D. Admin. Code § 75-02-04.1-02(11) of the Child Support Guidelines was adopted to provide:

A payment of children’s benefits made to or on behalf of a child who is not living with the obligor must be credited as a payment toward the obligor’s child support obligation in the month (or other period) the payment is intended to cover, but may not be credited as a payment toward the child support obligation for any other month or period.

The drafters of the Child Support Guidelines explained:

75-02-04.1-02(11): Four commentors, familiar with previous drafts of the proposed rules, expressed concern that there is no provision specifically requiring that children’s benefits paid directly to the child be credited against the obli-gor’s child support obligation. Another commentor regarded any provision for such crediting as improper. The language about which the commentors were concerned (which was drafted, but not specifically proposed as a rule) provided:
A payment of children’s benefits made to or on behalf of a child who is not living with the obligor must be credited as a payment toward the obligor’s child support obligation in the month (or other period) the payment is intended to cover, but may not be credited as a payment toward the child support obligation for any other month (or period).
This language was not included because it does not go to the establishment of child support guidelines. However, while the subsection actually addresses the proper crediting of payments, its inclusion complements and explains the inclusion of “children’s benefits” as part of the obligor’s gross income. The subsection also reinforces the holding in Guthmiller v. Guthmiller, 448 N.W.2d 643 (N.D.1989). Based on these comments, the subsection is included.

Summary of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code ch. 75-02-04.1, Child Support Guidelines, pp. 10-11 (November 14, 1994). The regulation “reinforce[d]” the holding in Guthmiller by requiring that children’s benefits be credited as a payment toward the obligor’s child support obligation rather than creating a rebuttable presumption that the credit will be applied.

[¶ 9] We interpreted N.D. Admin. Code § 75-02-04.1-02(11) in Tibor v. Ben-*710drick, 1999 ND 92, 593 N.W.2d 895. In Tibor, the obligor was declared disabled and he began receiving disability benefits, and his child began receiving monthly social security dependency benefits. Id. at ¶ 3. The child also received a lump sum payment representing social security dependency benefits from September 1995 through January 1998. Id. The district court granted the obligor’s motion to eliminate his child support obligation because the monthly social security dependency benefits exceeded his monthly child support obligation, and the court determined the lump sum payment should be credited toward the obligor’s child support arrear-ages. Id. at ¶ 5. Relying on N.D. Admin. Code § 75-02-04.1-02(11), we rejected in part the obligee’s claim that crediting the lump sum payment to the obligor’s child support arrearages was an improper retroactive modification:

[T]he guidelines expressly provide that benefits, including social security disability dependency benefits, must be credited as a payment toward [the obligor’s] child support obligation for the particular months or period the payment was intended to cover.
The record indicates the lump sum payment represented benefits from September 1995 through January 1998, when [the obligor] was disabled and not working. However, through no fault of [the obligor], [the child] did not receive these benefits until February 1998. Following the guidelines, we conclude [the child’s] receipt of the lump sum payment of social security disability benefits, which resulted from a lapse of time between the disability determination and the commencement of benefits, was a payment toward [the obligor’s] obligation for the period the payment was intended to cover. The payment must therefore be credited to [the obligor’s] child support arrearages which accrued from September 1995 through January 1998.

Tibor, at ¶¶ 7-8. We remanded for a determination of the amount of arrearages that accumulated before September 1995, the starting date of the social security dependency benefits, because under the regulation the obligor was not entitled to credit for that amount. Id. at ¶ 9.

[¶ 10] We have not addressed whether a child support obligor is entitled to reimbursement for child support received by an obligee after the obligee receives lump sum social security dependency benefits for the children which exceed the child support ordered to be paid by the obligor. Most courts deny reimbursement under these circumstances.

[¶ 11] Courts essentially use three different rationales to deny reimbursement. The majority of courts simply conclude, as a matter of law, that any excess payment will equitably be deemed to be a gratuity to the child so the custodial parent is not obligated to refund to the obligor any overpayment. See, e.g., Child Support Enforcement Agency v. Doe, 92 Hawai’i 276, 990 P.2d 1158, 1167-68 (Haw.Ct.App.1999); Brown v. Brown, 849 N.E.2d 610, 616 (Ind.2006); Newman v. Newman, 451 N.W.2d 843, 844 (Iowa 1990); Holmberg v. Holmberg, 578 N.W.2d 817, 827 (Minn.Ct.App.1998), aff'd 588 N.W.2d 720 (Minn.1999). A second line of cases reasons that, as a matter of law, the obligor parent is not entitled to reimbursement of any excess child support, because the funds belong to the child and not to the noncustodial parent. See, e.g., Keith v. Purvis, 982 So.2d 1033, 1038-39 (Miss.Ct.App.2008); Steel v. Hartwick, 209 W.Va. 706, 551 S.E.2d 42, 45 (2001).

[¶ 12] The third line of cases is represented by Filon v. Green, 2006 WL 2683516 (Ohio Ct.App., Sept. 20, 2006), an *711unreported decision relied upon by the district court in this case. In Filón, at *1, the court applied an abuse of discretion standard of review and considered the totality of the circumstances in the case. In denying reimbursement, the Filón court noted that 42 U.S.C. § 407(a) prohibited the use of the lump sum payment to satisfy the request for reimbursement, and stressed that the obligor never informed the obligee of his pending application for benefits, which would have allowed the obligee to properly allocate resources to prepare to repay the overpaid support. Id. at *4. Instead, the obligee, as in this case, used the lump sum payment to invest in a college fund for the child and invested the remainder for the child’s benefit. Id. The court rejected the argument that its ruling would “serve as an incentive to accrue arrears in the hope that a future payment may alleviate the obligor from paying his obligation,” because “equity does not favor a party who has willfully accrued arrears.” Id. at *5.

[¶ 13] We do not find any of these cases persuasive, because those courts were not interpreting administrative regulations similar to N.D. Admin. Code § 75-02-04.1-02(11). Administrative rules are derivatives of statutes and are construed using well-established principles of statutory construction. Simon v. Simon, 2006 ND 29, ¶ 11, 709 N.W.2d 4. Our primary objective in interpreting a statute is to determine the intention of the legislation by first looking at the language of the statute. Id. at ¶ 12. We give words in a statute their plain, ordinary, and commonly understood meaning, unless defined in the code or unless the drafters clearly intended otherwise. N.D.C.C. § 1-02-02.

[IT 14] Section 75-02-04.1-02(11), N.D. Admin. Code, provides that children’s benefits “must be credited as a payment toward the obligor’s child support obligation.” This language leaves no room for application of equitable principles relied upon by the courts in the first and third lines of cases from other jurisdictions, and the premise underlying the rationale used by the courts in the second group of cases was specifically rejected by this Court in Guthmiller, 448 N.W.2d at 647. The term “credit” has been defined as “the provision of money, goods, or services with the expectation of future payment.” Merriam-Webster’s Collegiate Dictionary 294 (11th ed. 2003). The United States Supreme Court has also said the “ordinary meaning” of “credit” is “the obligation due on accounting between parties to transactions.” Propper v. Clark, 337 U.S. 472, 480, 69 S.Ct. 1333, 93 L.Ed. 1480 (1949); see also Kansas City Life Ins. Co. v. Hammett, 177 La. 930, 149 So. 525, 527 (1933) (“ ‘Credits are, in effect, the mere legal right with which one is clothed to demand the delivery of money or other property in the future.’ ”) (internal citation omitted); Mountain State Motor Car Co. v. Solof, 97 W.Va. 196, 124 S.E. 824, 825 (1924) (“Credit is the correlative of debt or indebtedness, and that which is due to any person as distinguished from that which he owes.”).

[¶ 15] We conclude the plain language of N.D. Admin. Code § 75-02-04.1-02(11) requires that D. Luke Davis be reimbursed for the $15,727.97 he had paid in child support from January 2004 through February 2007, but which was subsequently supplanted by the children’s receipt of the lump sum social security dependency benefits. See also N.D. Op. Atty. Gen. 2004-L-24, at 3 (“Consistent with the discussion of child support overpayments in N.D.A.G. 96-F-24, the ‘surplus’ created by the actual collections should first be applied to any existing arrearage, but any remaining balance should not be considered a pre-payment of future child support *712without a court order providing that the collections should be applied to future support rather than he refunded by the custodial parent or assignee.” (emphasis added)).

[¶ 16] In denying reimbursement, the district court also relied upon Philpott v. Essex County Welfare Bd., 409 U.S. 413, 417, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973), in which the United States Supreme Court held that 42 U.S.C. § 407 “imposes a broad bar against the use of any legal process to reach all social security benefits.” Cf. Kluck v. Kluck, 1997 ND 41, ¶ 31, 561 N.W.2d 263 (“identifiable social security moneys in the hands of a divorcing spouse cannot be counted as marital assets to calculate divisions”) (emphasis added). We agree with D. Luke Davis that the court’s concern about his ability to recover on the judgment was misplaced. Any difficulty D. Luke Davis may have in enforcing the judgment provides no basis for denying him a judgment mandated under the law. See Law v. Maercklein, 292 N.W.2d 86, 91 (N.D.1980) (recognizing some judgments are uncollectible).

[¶ 17] A district court errs as a matter of law if it fails to comply with the Child Support Guidelines. See Verhey v. McKenzie, 2009 ND 35, ¶ 5, 763 N.W.2d 113. We conclude the district court erred as a matter of law in ruling D. Luke Davis was not entitled to $15,727.97 plus interest for his overpayment of child support.

Ill

[¶ 18] We reverse the judgment.

[¶ 19] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, DANIEL J. CROTHERS, JJ., concur.