Joanne O'Bara v. Kenneth O'Bara (2013)

MEMORANDUM OF DECISION

Before the court is the defendant's postjudgment Motion for Order dated January 30, 2013, seeking a court order for the plaintiff to reimburse him for certain child support payments.   A hearing was held on the motion and briefs were filed on November 5, 2013.   Both parties were represented by counsel.

The defendant seeks the reimbursement of child support that he paid from March 1, 2008 until June 1, 2011.   The sum paid by him for child support during that period was $5,375.00.   The defendant made application for Social Security Disability and was awarded it on June 1, 2011.   Pursuant to that award, the plaintiff, as custodial parent for the parties' child, received a lump sum dependent social security disability payment of $18,713.00.   This payment is the child's derivative dependency benefit for the period of March 1, 2008 through June 1, 2011.   The mother created an educational fund for the child with the money.¹

The defendant asserts that by virtue of the lump sum Social Security payment, he has overpaid his child support obligation and is entitled to a reimbursement of the same from the plaintiff.   The plaintiff resists this argument.   It should be noted that the defendant is not seeking a payment to him from the lump sum Social Security monies.   He acknowledges that they are a gratuity to the child from which he is not entitled to any funds.  Tarbox v. Tarbox, 84 Conn.App. 403, 411, 853 A.2d 614 (2004).

The defendant relies on a ruling in the matter of Taylor v. Taylor (FA00043677, Judicial District of New Haven, July 31, 2007) (Frazzini, J.) in support of his claim that he is entitled to the reimbursement from the defendant of the child support payments that he made during the applicable time.   Taylor does not stand for the proposition that the defendant urges.   In Taylor the defendant was paying a child support obligation which he had modified downward on account of disability.   At the time of the modification the court (Burke, J.) left open the question of retroactivity to a later hearing.   At the later hearing the court (Frazzini, J.) found (1) that the defendant was entitled to retroactivity;  and (2) that the Burke court had not properly computed his child support obligation because it had failed to take into account the Social Security payments for the dependent child.   The result of this recalculation by the court and the retroactivity ordered in the court's discretion pursuant to statutory authority (Gen.Stat. § 46b–86(a)), the defendant had overpaid his child support.   The current case is inapposite:  there is no motion to modify child support with a corresponding request for retroactivity pending before this court.   Therefore the court does not find the Taylor trial court decision relevant to the issue before this court.

The movant also relies on Jenkins v. Jenkins, 243 Conn. 584, 704 A.2d 231 (1998) though it is not relevant to the case before this court.  “The sole issue to be decided in this appeal is whether dependency benefits received pursuant to the Social Security Act by the minor children of the disabled plaintiff, Jerry L. Jenkins, that are credited toward the amount of the plaintiff's child support obligation should also be included in his gross income when determining that obligation under the Child Support and Arrearage Guidelines (guidelines).”  (Footnotes omitted.)  Jenkins, 585–86.   “Jenkins settled the question whether the custodial parent's receipt of current social security payments for a child are applicable to satisfy an obligor's current support orders.   Although it employs the term “credit,” its context makes clear that the word is used to denote how the payment offsets the order;  it says nothing about recapture of previously paid amounts of support when a lump-sum payment arrives.   The case did not involve a retroactive modification of a prior order, nor treatment of lump-sum issues.”  McKinney v. Lake, 2011 WL 3278582, Conn.Super., 2011 (Boland, J.) [52 Conn. L. Rptr. 251].   Here, the defendant is essentially seeking a retroactive modification of the existing child support order by ordering repayment so that a windfall to the plaintiff is avoided.

The specific question before this court is whether a recipient can be ordered to repay child support which was already paid, if the recipient later receives Social Security disability payments that are attributable to support for the child during the period for which the child support was paid?

The defendant's child support was not modified while his Social Security disability petition was pending.   The Tarbox court noted, “[a]lthough we think it prudent for a noncustodial parent who has applied for social security benefits to file a motion for modification on the basis of a change of circumstances, the filing of that motion in no way relieves the parent of his or her obligation to provide child support for the benefit of the parties' child or children until such time as there is a modification, if any, of the order.”  84 Conn.App. 403, 413–4 (citations omitted).   Therefore, the defendant conclusively had a duty to continue the child support payments that he made while he was seeking social security disability coverage.

The case at issue is very similar to the matter of Washburn v. O'Reilly, 1998 WL 96310 (Conn.Super., 1998) (Bishop, J.) [21 Conn. L. Rptr. 321].   Washburn is a trial court decision where the father sought (1) a credit for social security payments to his child's mother against his current support order, and (2) an additional credit for an amount he had received as a lump-sum regarding a period of time for which he had been paying child support.   The trial court granted the first relief and denied the second.   The Washburn court wrote,” [the] question remains ․ whether the plaintiff is entitled to reimbursement or a credit to him now or in the future, or some combination of both for the lump sum payment paid by the Social Security Administration which lump sum payment is the accumulation of monthly benefits paid for a specific period of time during which the plaintiff had paid his full child support ․ [t]he answer must be no.   Any excess is deemed a gratuity to the extent that it exceeds the amount of support mandated by the decree.”  Washburn at *4. Subsequently, the appellate court cited this reasoning with approval in the Tarbox decision.   The trial court judge in McKinney v. Lake, supra accepted the reasoning of the Washburn decision, noting the Tarbox approval.   In McKinney, the movant sought a credit of the payments to future child support.   That motion was denied based upon the reasoning recited above.   Given the Tarbox appellate court approval of the Washburn holding, this court is constrained as well to find that the Washburn court properly recited the law applicable here.²  Accordingly, excess child support payments made by the defendant are deemed a gratuity for which no retroactive modification or reimbursement is due.

The motion for order is denied.

Munro, J.

FOOTNOTES

FN1. The plaintiff represented that the only payments made from it have been for educational expenses and payment pursuant to a prior court order of the fees of the child's guardian ad litem..  FN1. The plaintiff represented that the only payments made from it have been for educational expenses and payment pursuant to a prior court order of the fees of the child's guardian ad litem.

FN2. This issue has been addressed by appellate authorities of other jurisdictions.  “[T]he majority of courts who have decided this issue have found that the nonobligor parent is not required to return such “overpayments” to the obligor parent.   Most courts view it as a voluntary overpayment that inures solely to the benefit of the child.   See, e.g., Child Support Enforcement Agency v. Doe, 92 Hawaii 276, 285–86, 990 P.2d 1158 (Hawaii 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.App.1998), aff'd 588 N.W.2d 720 (Minn.1999);  Keith v. Purvis, 982 So.2d 1033, 1038–39 (Miss.App.2008);  Steel v. Hartwick, 209 W.Va. 706, 708–09, 551 S.E.2d 42 (2001).”  In re Marriage of Hohmann and Hohmann, 47 Kan.App.2d 117, 121, 274 P.3d 27 (2012)..  FN2. This issue has been addressed by appellate authorities of other jurisdictions.  “[T]he majority of courts who have decided this issue have found that the nonobligor parent is not required to return such “overpayments” to the obligor parent.   Most courts view it as a voluntary overpayment that inures solely to the benefit of the child.   See, e.g., Child Support Enforcement Agency v. Doe, 92 Hawaii 276, 285–86, 990 P.2d 1158 (Hawaii 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.App.1998), aff'd 588 N.W.2d 720 (Minn.1999);  Keith v. Purvis, 982 So.2d 1033, 1038–39 (Miss.App.2008);  Steel v. Hartwick, 209 W.Va. 706, 708–09, 551 S.E.2d 42 (2001).”  In re Marriage of Hohmann and Hohmann, 47 Kan.App.2d 117, 121, 274 P.3d 27 (2012).

Munro, Lynda B., J.