Opinion
No. 09-09-00382-CV
Submitted on August 23, 2010.
Opinion Delivered October 28, 2010.
On Appeal from the 88th District Court, Tyler County, Texas, Trial Cause No. 14,366.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
The Attorney General appeals the trial court's order giving the child support obligor a credit against confirmed arrearages for the social security disability benefits paid to his child over a period of years over and above the amount of obligor's monthly support obligation. We conclude the trial court abused its discretion in finding the social security disability benefits were "child support" and reducing the arrearage by the amount of disability benefits paid in excess of the court ordered child support. We reverse the judgment of the trial court and remand the case for further proceedings.
BACKGROUND
Walter Riley and Tabatha Riley divorced in 1992 and had one child, A.J.R., who was twenty-two months old at the time of their divorce. Tabatha was appointed sole managing conservator and Walter was ordered to pay $163.58 per month in child support. Walter sustained a work-related injury in 1996. According to Walter, the Social Security Administration declared him disabled in 1998. At the time of the modification proceedings at issue, Walter was still unable to work.
In 2001, the trial court modified Walter's child support obligation and set child support at $150 per month. Because A.J.R. was receiving $79 per month in social security disability benefits due to Walter's disability, the court found that $79 should be subtracted from Walter's monthly support obligation, resulting in a monthly child support obligation in the amount of $71 per month. The Court further found that Walter was "in arrears on current child support in the amount of $12,919.26 as of August 27, 2001." In addition, the court found that Walter failed to provide medical support as ordered resulting in damages in the amount of $3,233.74. Therefore, the court found and confirmed that Walter was in arrears on current child support and medical support in the amount of $16,153 as of August 27, 2001, and ordered him to pay $40 per month toward the arrearage.
In 2004, the court entered an order once again modifying Walter's child support obligation and confirming arrears. The court found that Walter was in arrears in the amount of $20,393.91 as of September 30, 2004, and ordered him to pay $60 per month toward the arrearage. Walter was also ordered to pay $40 per month in cash medical support. The court found that A.J.R. was currently receiving $126 per month in social security disability benefits. The court ordered Walter to pay $0.00 per month as additional child support. In its order the trial court stated, "[t]he Court FINDS that the child currently receives $126.00 per month, because of Walter A. Riley's disability, from the Social Security Administration. The Court ORDERS that Walter A. Riley shall be ordered to pay $0.00 current child support, in addition to the Social Security Benefits." The court noted on the docket sheet, "c/s set at $126 per month."
In September 2008, the Attorney General again filed pleadings to modify the support obligation and confirm the arrearage, which the Attorney General alleged had risen to $21,995.10. In February 2009, the associate judge entered an order that left Walter's child support obligation "unchanged" and restated the court's previous confirmation of arrearage in the amount of $20,393.91. The associate judge found that Walter would be obligated to pay $193.20 in child support under applicable statutory guidelines; however, the order stated that the amount of child support per month ordered by the court varied from this stated amount because the court "subtracted benefits of $606.00 per month paid to or for the child as a result of the OBLIGOR'S disability[.]" Walter requested a hearing in the district court on the issue of whether he should receive credit on the amount of arrears for all social security disability payments made on behalf of A.J.R. in excess of his court ordered obligation. The district court held a hearing on the issue in May 2009.
The evidence introduced at the hearing established that in December 2003 Tabatha was receiving a social security disability benefit for A.J.R. in the amount of $126 per month. The evidence further established that over the years the amount of the disability benefit received by A.J.R. increased. The record shows that from and after December 2004, the monthly social security benefits paid to A.J.R. exceeded the amount of the court ordered child support. As of early 2009, A.J.R. was receiving a disability benefit in the amount of $606 per month. At the hearing, Walter sought a credit to the amount of his arrearage for the social security payments made "in excess of [$126] a month," beginning in December 2003 through June 2009.
In June 2009, the court signed an order that gave Walter credit against all arrears for the social security disability payments received by or on behalf of A.J.R. in excess of $126 per month. The court's order found that "payments over the current support ordered total $11,247.00," and that Tabatha "received $606 in April 2009, $606 in May 2009[,] and will receive $606 in June 2009, which will result in a[n] overpayment of current support in the additional amount of $1,440," for a final total of "$12,687[,]" for which Walter has "not been credited by the Attorney General against the child support arrearages." The court found that "[t]hese payments should be applied against the arrears pursuant to Texas Family Code § 157.268." The court's order noted that A.J.R. would turn eighteen in June 2009, at which time Walter's child support obligation would cease.
The Attorney General filed a motion for new trial and a request for findings of fact and conclusions of law. The trial court filed findings of fact and conclusions of law. In its findings of fact, the court found that Tabatha was paid $12,687 over Walter's child support obligation and that these payments should be applied against Walter's arrears pursuant to section 157.268 of the Texas Family Code. See Tex. Fam. Code Ann. § 157.268 (West Supp. 2010). The court further found that the "new arrearage balance is $8,102.57 as of 6/3/09." The court made the following conclusions of law:
a. The Court did consider the social security payments to be "child support payments[.]" The arrearage balance should be reduced by applying the amounts paid in excess of the court ordered child support, pursuant to Texas Family Code § 157.268.
b. The Americans with Disabilities Act (ADA) provides for prohibitions against discrimination against qualified individuals with a disability. 42 U.S.C. 12131. In that act, a "public entity" is a state or local government or any department, agency[,] or instrumentality of that state or local government. This would include the Attorney General of the State of Texas, and the Texas Legislature.
c. The ADA provides that no qualified individual shall by reason of such disability be denied the benefits of the services of a public entity or subjected to discrimination by such entity ( 42 U.S.C. 12132). The failure to credit Respondent's child support arrearages with overpayments of his child support, and large lump sum payments, in the same manner as they would credit overpayments by a non-disabled individual, would discriminate against Respondent[.] . . . Respondent's $126 per month child support obligation was paid by receipt of the social security benefit paid to [A.J.R.] through Tabitha. When these payments increased above $126, the excess payment should have been credited as payments against the judgment and interest.
d. The failure to apply the overpayments would also constitute violations of 42 U.S.C. 1983 in depriving Respondent of rights, privileges[,] or immunities of the Constitution and laws of the state and federal government.
e. Texas Constitution Article 1 § 3 provides that all individuals be afforded equal protection of Texas laws. Respondent should be afforded the same rights and privileges as other individuals. . . . Payments made on his child support in excess of the court ordered amount should be credited against arrears and interest as provided in Texas Family Code § 157.268.
DISCUSSION
On appeal, the Attorney General argues that a social security dependant's disability payments do not constitute "child support," therefore the trial court abused its discretion in allowing Walter a credit against arrears for monthly social security disability payments received by or on behalf of A.J.R. in excess of his support obligation. We review the trial court's ruling under an abuse of discretion standard. Att'y Gen. of Tex. v. Stevens, 84 S.W.3d 720, 722 (Tex. App.-Houston [1st] 2002, no pet.). A trial court abuses its discretion if it acts without reference to guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Additionally, a trial court abuses its discretion if it fails to analyze or apply the law correctly. Stevens, 84 S.W.3d at 722; see also Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
Reduction of Arrearage pursuant to Texas Family Code section 157.268
Walter argues that it is clear that the court considered the social security payments to be "child support" as shown by the deduction against current support in the September 2001 order and as shown by the 2004 court order. Therefore, Walter contends the reduction of his arrearage was proper pursuant to section 157.268 of the Family Code. Walter cites no authority for the contention that the social security disability payments received by or on behalf of A.J.R. may be considered child support. We have found no Texas case holding that disability payments may be considered "child support" under the Texas Family Code. The United States Supreme Court has held that payments under Title II of the Social Security Act for a "child's insurance benefits" do not constitute "child support" within the meaning of Title IV of the Social Security Act. See Sullivan v. Stroop, 496 U.S. 478, 479, 485, 110 S.Ct. 2499, 110 L.Ed.2d 438 (1990). The Supreme Court stated that "the common usage of 'child support' refers to legally compulsory payments made by parents." Id. at 482. Moreover, the Texas Legislature has placed provisions in the Texas Family Code to address the impact that social security benefits may have on child support issues. See generally Tex. Fam. Code Ann. §§ 154.062(b)(5), 157.009 (West Supp. 2010), § 154.132 (West 2008).
Section 157.268 addresses the application of child support payments. Tex. Fam. Code Ann. § 157.268 (West Supp. 2010). At the time the judgment was entered in this case, Section 157.268 provided as follows:
Child support collected shall be applied in the following order of priority:
(1) current child support;
(2) non-delinquent child support owed;
(3) interest on the principal amounts specified in Subdivisions (4) and (5);
(4) the principal amount of child support that has not been confirmed and reduced to money judgment;
(5) the principal amount of child support that has been confirmed and reduced to money judgment; and
(6) the amount of any ordered attorney's fees or costs, or Title IV-D service fees authorized under Section 231.103 for which the obligor is responsible.
Act of May 27, 2007, 80th Leg., R.S., ch. 972, § 20, sec. 157.268, 2007 Tex. Gen. Laws 3390, 3395.
The Texas Family Code directs that social security disability benefits should be taken into consideration when computing a child support obligation. See Tex. Fam. Code Ann. §§ 154.062(b)(5), 154.132. The code provides that in applying the child support guidelines to an obligor who receives social security disability benefits, the court must determine the amount of child support that would be ordered under the child support guidelines and subtract "from that total the amount of benefits or the value of the benefits paid to or for the child as a result of the obligor's disability." Id. § 154.132. Monthly social security benefits may be applied to an obligor's child support obligation prospectively. See In re H.J.W., 302 S.W.3d 511, 513-514 (Tex. App.-Dallas 2009, no pet.) (holding that father was entitled to credit against contemporaneous child support obligations for children's dependent social security disability benefits, but was not entitled to reimbursement for prior child support payments); see also In re G.L.S., 185 S.W.3d 56, 61 (Tex. App.-San Antonio 2005, no pet.). The trial court properly applied section 154.132 when it took the social security benefits into consideration when it set Walter's on-going child support obligation. See Tex. Fam. Code Ann. § 154.132. However, the trial court, erred in finding and considering the social security disability payments to be "child support" beyond that authorized by statute.
Reduction of Arrearage by Social Security Disability Payments
The Texas Legislature has addressed the circumstances under which a child support arrearage may be modified or offset. See Tex. Fam. Code Ann. § 157.262(a) (West Supp. 2010); see also In re R.L.S., No. 09-05-426 CV, 2006 WL 1428860, at *1 (Tex. App.-Beaumont May 25, 2006, no pet.) (mem. op.). In rendering a money judgment for child support arrearages, the trial court may not reduce the amount of an arrearage, except as provided by statute. See Tex. Fam. Code Ann. § 157.262(a). Specifically, section 157.262(a) states, "[e]xcept as provided by this section, in a contempt proceeding or in rendering a money judgment, the court may not reduce or modify the amount of child support arrearages." Id. Once child support arrearages are proven, section 157.263(a) imposes upon the trial court an affirmative ministerial duty to confirm the arrearages and reduce them to judgment. See Tex. Fam. Code Ann. § 157.263(a) (West 2008); see also George v. Jeppeson, 238 S.W.3d 463, 472 (Tex. App.-Houston [1st] 2007, no pet.). A money judgment on arrearages includes interest on the arrearages. Tex. Fam. Code Ann. § 157.263(b)(3) (West 2008).
When the trial court's judgment was signed in this case, on June 18, 2009, section 157.262(f) of the Family Code provided that once calculated and reduced to judgment, "[t]he money judgment for arrearages rendered by the court may be subject to a counterclaim or offset as provided by this subchapter." Act of May 24, 2001, 77th Leg., R.S., ch. 1023, § 15, sec. 157.262, 2001 Tex. Gen. Laws 2240, 2244 (amended 2009) (current version at Tex. Fam. Code Ann. § 157.262(f) (West Supp. 2010)). In R.L.S., we concluded that "the Legislature [had] not created an exception allowing the reduction of a child support arrearage to account for Social Security disability payments." In re R.L.S., 2006 WL 1428860, at *1 (citing Stevens, 84 S.W.3d at 723-24). In holding that the trial court abused its discretion in allowing a credit toward a father's child support arrearage for a lump-sum social security disability payment made to his child, we stated:
The Texas Legislature has not provided a credit against child support arrearage for payments made to a child because of parent's disability. Moreover, the Legislature has expressly mandated that a trial court is not permitted to reduce or modify the amount of a child support arrearage except as provided in Section 157.262 of the Family Code. The plain language of the statute is clear; it does not provide for a credit for Social Security disability payments. Further, a judicially created credit based on equitable principles encroaches on the power of the Legislature.
Id. at *2. On appeal, Walter urges us to reconsider our holding in R.L.S. We decline to do so.
In Stevens, the court interpreted the express language of the statute to limit allowable offsets and credits towards arrearages to those set forth in subchapter F, entitled "Judgment and Interest." Stevens, 84 S.W.3d at 723. However, the court in Stevens noted that subchapter F contained no description of any applicable counterclaims or offsets. Id. In R.L.S., we relied on the court's analysis in Stevens. In 2009, the Legislature amended the language of section 157.262(f) by replacing the word "subchapter" with the word "title." Tex. Fam. Code Ann. § 157.262(f). The provision now provides that a "money judgment for arrearages rendered by the court may be subject to a counterclaim or offset as provided by this title." Id. (emphasis added).
There are two provisions in Title 5 of the Family Code that allow for a counterclaim or offset of arrearages. See Tex. Fam. Code Ann. § 157.008 (West 2008), § 157.009; see also In re J.S.H., No. 06-09-00101-CV, 2010 WL 1568463, at *3 (Tex. App.-Texarkana Apr. 21, 2010, no pet.) (mem. op.). Section 157.008 sets out conditions for asserting an affirmative defense to enforcement of a child support obligation. See Tex. Fam. Code. Ann. § 157.008. Among other things, Section 157.008 provides that a child support obligor who has provided actual support to a child during a time subject to an affirmative defense under Section 157.008 may request reimbursement for that support as a counterclaim or offset. Id. § 157.008(d). Additionally, section 157.009, enacted by the Legislature in 2009, specifically provides for a credit against arrears for certain lump-sum social security disability benefits. Id. § 157.009. section 157.009 provides as follows:
In addition to any other credit or offset available to an obligor under this title, if a child for whom the obligor owes child support receives a lump-sum payment as a result of the obligor's disability and that payment is made to the obligee as the representative payee of the child, the obligor is entitled to a credit. The credit under this section is equal to the amount of the lump-sum payment and shall be applied to any child support arrearage and interest owed by the obligor on behalf of that child at the time the payment is made.
Id. This section applies only to money judgments for child support arrearages rendered on or after June 19, 2009. Act of May 28, 2009, 81st Leg., R.S., ch. 767, § 14, 43, 51, 2009 Tex. Gen. Laws 1938, 1944, 1949-50. Section 157.009 is inapplicable to this case.
There are no provisions in Title 5 or elsewhere in the Texas Family Code that allow for a reduction of child support arrearages for monthly social security disability benefits received by children of the obligor. Likewise, at the time the judgment was rendered in this case, there were no provisions in subchapter F of the Texas Family Code, or elsewhere, that allowed for a reduction of confirmed child support arrearages for monthly social security disability benefits received by or on behalf of a child over the amount of the court ordered child support obligation. See In re R.L.S., 2006 WL 1428860, at **1-2; Stevens, 84 S.W.3d at 724.
Walter argues that if Tabatha receives social security disability benefits on behalf of A.J.R. and is then "awarded an arrear judgment for the same support time period, she is receiving a double recovery for the support of the child." Significantly, we note that the Texas Legislature was undoubtedly aware of this possibility when it enacted section 157.009, which only allows a credit against arrears for lump-sum payments. See Tex. Fam. Code Ann. § 157.009. As we explained in R.L.S., a judicially created credit for social security disability benefits based on equitable principles would encroach upon the power of the Legislature in an area where the Legislature has already spoken. See Tex. Fam. Code Ann. §§ 157.009, 157.262(a); see In re R.L.S., 2006 WL 1428860, at *2. A trial court is not authorized to consider an "equitable offset" with regard to child support arrearages. Beck v. Walker, 154 S.W.3d 895, 906 (Tex. App.-Dallas 2005, no pet.). Moreover, we are unpersuaded by Walter's argument that equity requires a credit against his confirmed arrears in this case. The bulk of Walter's arrearage appears to have accrued prior to him becoming eligible to receive social security disability benefits. In addition, Walter's child support obligation was repeatedly modified to account for A.J.R.'s social security disability benefit.
On the record before us, we conclude that the trial court acted without reference to the guiding provisions and principles set forth in the Texas Family Code. The trial court abused its discretion in reducing the confirmed arrearage by the total sum of all social security disability benefits received by A.J.R. in excess of Walter's court ordered child support obligation.
Reduction of Arrearage pursuant to the ADA, § 1983, and the Texas Constitution
In its conclusions of law, the court also found that failure to reduce Walter's arrearage by payments made on his child support in excess of Walter's court ordered support obligation would violate his rights under the Americans with Disabilities Act ("ADA") and the state and federal constitutions. See Tex. Const. art. I, § 3; 42 U.S.C.A. § 1983 (West 2003).
42 U.S.C.A. §§ 12101- 12213 (West 2005 Supp. 2010).
Conclusions of law are reviewed de novo. State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996). The trial court erred in finding the social security disability payments to be child support, therefore, the trial court's conclusion that failure to credit the payments to Walter's arrearage pursuant to section 157.268 of the Family Code would violate his rights under the ADA, Texas Constitution, and the United States Constitution are likewise erroneous. The trial court did not cite to any specific provision of the ADA or § 1983, which expressly references social security benefits and their application to child support arrearages, nor have we found any such provision. When reviewing statutes, we presume that the Legislature intended the statutes to be in compliance with the constitutions of both Texas and the United States. Tex. Gov't Code Ann. § 311.021(1) (West 2005); City of Houston v. Clark, 197 S.W.3d 314, 320 (Tex. 2006). Walter has failed to show how the applicable provisions of the Texas Family Code are in violation of the ADA, § 1983, or the Texas or United States Constitutions. The trial court's legal conclusions are erroneous.
We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.