On August 11, 2011, the family court ordered Frencher to pay $8.50 per month
for child support. At that hearing, the court found Frencher was $16,421.84 in arrears
for the period beginning January 1, 2007, and ending July 31, 2011. The family court
ordered Frencher to make $150 monthly payments toward the arrears, and ordered that
interest would accrue.
At some point in the timeline, Frencher began receiving Social Security disability
insurance benefits. As a result of Frencher being on disability, Kayla received
derivative benefits from Social Security. (42 U.S.C.A. § 402(d).) Social Security paid
1 Hall has not made an appearance at this court. In the appellant’s opening brief and record on appeal, Hall’s first name is spelled a variety of ways: Winerfred, Winifed, and Winifred. We infer the correct spelling is Winifred.
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$960 per month to Hall in derivative benefits for Kayla beginning in June 2014. Social
Security also sent a lump sum payment of $20,824 in derivative benefits, for the period
from July 2012 to April 2014. Hall gave half of that lump sum payment ($10,412) to
Frencher.
At a hearing on January 13, 2015, Hall and Frencher agreed that (1) in 2011,
from September through December, Frencher paid $151.50 per month toward arrears
(total $606); (2) in 2012, Frencher made 12 monthly payments of $151.50 toward
arrears (total $1,818); (3) in 2013, Frencher paid $160 per month toward arrears (total
$1,818); and (4) in 2014, Frencher paid $160 per month, through June, toward arrears
(total $909). Thus, Frencher paid a total of $5,151 in arrears from September 2011
through June 2014.
The total amount of arrears that was owed in August 2011 was $16,421.84. The
family court calculated that $11,270.84 was still outstanding ($16,421.84 - $5,151).
The court then calculated that Social Security had paid Frencher’s $8.50 per month
obligation for 22 months, which totaled $187. Therefore, the arrears would be reduced
to $11,083.84. The family court found that commencing August 2014 any money
Frencher owed in monthly child support was satisfied by the Social Security derivative
benefit payments because Frencher’s income was such that he could not be ordered to
pay more than $961 per month, so the Social Security payment would exceed any court
ordered child support.
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The family court asked if there was legal authority for applying the excess Social
Security payments to Frencher’s arrears. In other words, Frencher was ordered to pay
$8.50 in child support, but Social Security was paying $960, so the court questioned if
that extra $951.50 per month could legally be used to reduce Frencher’s arrears.
Frencher did not provide the court with legal authority.
The arrears covered the period from January 1, 2007, through July 31, 2011, and
the Social Security payments started in July 2012. The family court concluded the
Social Security payments could not be applied to monies that were owed prior to the
start date of the Social Security payments. Thus, the court held Frencher still owed
$11,083.84 in arrears. Frencher was ordered to continue his $150 monthly arrears
payments. The family court said it would reconsider its ruling if Frencher provided
legal authority reflecting excess derivative benefits could be applied to arrears that
predate the derivative benefits.
DISCUSSION
Frencher contends the family court erred by ruling that he owed $11,083.84 in
arrears because the excess Social Security derivative benefits should have been applied
to the arrears. We agree.
Frencher has raised a purely legal issue with undisputed facts, so we apply the de
novo standard of review. (Estate of Wilson (2012) 211 Cal.App.4th 1284, 1290.)
Family Code section 4504, subdivision (b) provides that if a noncustodial parent
is ordered to pay child support, then any Social Security derivative benefits paid “shall
be credited toward the amount ordered by the court to be paid by the noncustodial
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parent for support of the child . . . . Any payments shall be credited in the order set
forth in Section 695.221 of the Code of Civil Procedure.”
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.”
Given the foregoing law, Frencher is correct that the Social Security derivative
payments should have been used to pay his current monthly support, then the excess
amount should have been applied to the principle on the arrears, and then to the interest
on the arrears. Accordingly, we will reverse the portion of the family court’s order
reflecting Frencher owes $11,083.34 in arrears. The amount of arrears owed will need
to be recalculated by the family court.
The appellate court in the case of In re Marriage of Robinson (1998) 65
Cal.App.4th 93 (Robinson), came to the directly opposite conclusion. In Robinson, the
appellate court held Civil Code of Procedure section 695.221 does not apply to Social
Security derivative benefits, and therefore the excess benefit money does not apply to
the child support obligor’s arrearages. (Robinson, at pp. 97-98.)
The version of Family Code section 4504 in effect at the time of the Robinson
opinion was different than the current version of the statute. At the time of the
Robinson opinion, Family Code section 4504 provided, “If the court has ordered a
noncustodial parent to pay for the support of a child, payments for the support of the
child made by the federal government pursuant to the Social Security Act or Railroad
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Retirement Act because of the retirement or disability of the noncustodial parent and
transmitted to the custodial parent or other child support obligee each month shall be
credited toward the amount ordered by the court to be paid for that month by the
noncustodial parent for support of the child.” (Italics added.)
The Robinson court explained, “We find Family Code section 4504 to be
unambiguous in its directive that Social Security payments be credited against the
amount ‘to be paid for that month.’ It does not authorize payments to be credited to
amounts due in prior months, nor to accrued interest on those arrearages.” (Robinson,
supra, 65 Cal.App.4th at p. 96.)
The current version of Family Code section 4504 expressly provides, “Any
payments shall be credited in the order set forth in Section 695.221 of the Code of Civil
Procedure.” (Fam. Code, § 4504, subd. (b).) As set forth ante, Code of Civil Procedure
section 695.221 provides money should be credited against current support, then the
principal amount of arrears, and then the interest owing on arrears. Thus, we disagree
with the Robinson opinion because the statutory wording has changed so as to
contradict the Robinson court’s holding—Code of Civil Procedure section 695.221 is
now expressly incorporated into Family Code section 4504.
DISPOSITION
The portion of the family court’s judgment reflecting Bruce Frencher, Sr., owes
$11,083.84 in arrears is reversed. The family court is directed to calculate the amount
of arrears Bruce Frencher, Sr., owes taking Family Code section 4504, subdivision (b),
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and any other relevant laws, into account. In all other respects, the judgment is
affirmed. Appellant is awarded his costs on appeal.
CERTIFIED FOR PUBLICATION
MILLER J.
We concur:
McKINSTER Acting P. J.
SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that under the current version of Family Code section 4504, subdivision (b), excess Social Security derivative benefits must be credited against a parent's child support arrearages in the order prescribed by Code of Civil Procedure section 695.221.
Issues
Whether excess Social Security derivative benefits paid to a custodial parent should be applied to the noncustodial parent's child support arrearages.
Disposition. Affirmed in part; reversed in part.
Quotations verified verbatim against the opinion
“Frencher is correct that the Social Security derivative payments should have been used to pay his current monthly support, then the excess amount should have been applied to the principle on the arrears, and then to the interest on the arrears.”
“Code of Civil Procedure section 695.221 provides money should be credited against current support, then the principal amount of arrears, and then the interest owing on arrears.”