Weaks v. Weaks

COVINGTON, Judge,

dissenting.

I respectfully dissent. While I agree in concept that it would be fair for most obli-gors to be allowed a set-off against a support obligation in an amount equal to Social Security disability benefits, and I would not be opposed to permitting all obligors under a decretal support obligation an opportunity at trial to seek to obtain relief in the form of a retroactive credit for Social Security benefits paid through the obligor's account, I cannot concur with the principal opinion that these actions may be taken in the absence of statutory authorization and without a modification proceeding in the trial court.

Dissolution of marriage, of which support obligations are a part, is a purely statutory action. Likewise are the procedures through which decrees and agree-*508mente under the statutes are altered or modified. The measures authorized by the majority serve to modify the court’s order in disregard of the statutory procedure. The majority appears to acknowledge this but believes it just and fair to permit the noncustodial parent, both retroactively and prospectively, unilaterally to alter the terms of the decree.

The statutory scheme, however, authorizes modifications of court orders only upon certain findings. Section 452.370, RSMo Supp.1990, provides that: “... [T]he provisions of any decree respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.” The statute clearly requires a court to consider all financial resources of both parties in determining whether a substantial change in circumstance has occurred. See § 452.-370.1. The receipt of Social Security disability benefits is only one circumstance to be considered. Once the court has made the determination that a substantial change in circumstance has occurred, the court is further directed to modify the existing order only after due consideration of a variety of factors concerning the needs and resources of the child and the parents. See §§ 452.370.2; 452.340; Rule 88.01. The statutory scheme clearly requires that a court confer its approval upon any change in child support orders.

The majority’s holding is premised on the assumptions that the payment may be considered to have been made by the obligor and that the obligor's income is not increased as a consequence of the receipt of the disability benefit that the obligor himself receives. While the second assumption may be correct in a majority of the cases, it is not always correct, and the majority acknowledges that there is no evidence in this case of Robert's earnings prior to his disability. To proceed in disregard of the legislative mandate is, therefore, not possible.

The majority perceives the requirement of a modification proceeding to be “harsh and unjust.” The harshness, if it is that rather than a means of protecting the child’s interests, derives from legislative enactment, not as a consequence of judicial policy-making. Since the legislature has spoken on the subjects of abatement, see §§ 452.340.2 and 452.340.6, RSMo Supp. 1990, as well as modification, and has not excepted any amounts provided by Social Security, this Court is constrained to follow.

Finally, there remains for acknowledgment § 452.345.2, RSMo Supp.1990, which authorizes the court to order support payments to be made to the circuit clerk as trustee for remittance to the person entitled to receive the payments. A substantial number of child support payments are made to the circuit clerk under the authority of this statute. The circuit clerk should be neither burdened nor authorized to determine the validity of the plain terms of the court decree.

The circuit court correctly declared the applicable law and applied the law to the facte. The order of the circuit court must be affirmed.