Daugherty v. Daugherty

Filed 12/15/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

MELINDA DAUGHERTY, Appellant, A138872 v. DAVID DAUGHERTY, (Napa County Super. Ct. No. 26-28036) Respondent;

NAPA COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Respondent.

Melinda Daugherty appeals an order of the trial court modifying the child support paid by David Daugherty.1 She contends the court miscalculated David’s support obligation by failing to include in his income derivative Social Security disability benefits Melinda receives on behalf of their children—benefits they are entitled to because of David’s disability. We shall affirm the order. I. BACKGROUND David and Melinda’s two children lived with Melinda, and David paid child support. The Napa County Department of Child Support Services filed a motion to modify David’s child support obligation. (Fam. Code,2 § 17400 et seq.)

1 Because Melinda Daugherty and David Daugherty share a last name, we shall refer to them by their first names. We intend no disrespect by this designation. 2 All undesignated statutory references are to the Family Code.

1

After a hearing, the court found that David’s income, for purposes of calculating child support, was the monthly Social Security disability payment he received. The court then ordered him to pay a portion of that to Melinda as child support. The court also found Melinda received $796 per month in derivative Social Security disability benefits as the representative payee of the children based on David’s disability. (42 U.S.C. § 402(d).) Melinda argued these benefits should be treated as part of David’s income when calculating his monthly income for purposes of his support obligation. The court disagreed with Melinda’s position and concluded the derivative benefits were the income of the children, not of David. Under the court’s order, the $796 in derivative disability benefits would partially satisfy David’s support obligation; the monthly benefits would be credited first toward his current child support, and any excess would be credited to pay off arrears. II. DISCUSSION Melinda contends the trial court committed an error of law when it failed to treat the $796 in derivative disability payments as David’s income for purposes of calculating his child support obligation.3 For this argument, she relies on section 4058, subdivision (a), which provides in pertinent part that “[t]he annual gross income of each parent means income from whatever source derived,” and that it includes Social Security benefits.4 The payments in dispute are paid to Melinda on behalf of the children as a result of David’s disability pursuant to the federal Social Security Act, under which every child