Marriage of Hall and Frencher, Sr. (2016)

In Marriage of Hall and Frencher, Sr. (2016), the family court determined that Bruce Frencher, Sr., owed a child-support arrearage of $11,083.84.  He appealed, claiming that the Social Security derivative benefits his former wife Winifred Hall received (under 42 USCA 402(d)) on behalf of the parties’ daughter, Kayla, should have been applied toward the arrearage.  The Fourth District, Division Two, Court of Appeal agreed and reversed. 

Family Code section 4504(b) states that if the noncustodial parent has been ordered to pay child support, “payments for the support of the child made by the federal government pursuant to the Social Security Act or Railroad Retirement Act or by the Department of Veterans Affairs because of the retirement or disability of the non-custodial parent and received by the custodial parent or other child support obligee shall be credited toward the amount ordered by the court to be paid by the non-custodial parent for support of the child unless payments made by the federal government were taken into consideration by the court in determining the amount of support to be paid.  Any payments shall be credited in the order set forth in Section 695.221 of the Code of Civil Procedure.”   (However, Social Security disability payments to the custodial parent on behalf of the children of a disabled obligor are not includible as income to the obligor’s under Family Code section 4058.  (Marriage of Daughtery (2014).)

Code of Civil Procedure section 695.221 provides money should be credited in the following order: (1) against the current month’s support; (2) against the principal amount of the judgment remaining unsatisfied; and then (3) against the accrued interest that remains unsatisfied.

The appellate court then explained that this result differs from that in Marriage of Robinson (1998)[Social Security derivative benefits payable on account of the noncustodial parent’s disability or retriement shall be credited toward each month’s current child-support payment but not toward any arrearage] because Family Code section 4504(b) did not expressly incorporate, as it does now, Code of Civil Procedure section 695.221 at the time the Robinson opinion was filed. 

 

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