Opinion
Record No. 0013-94-3
Decided: January 24, 1995
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY, J. Samuel Johnston, JR., Judge
Jack A. Maxwell, Special Counsel (James S. Gilmore, III, Attorney General; William B. Hurd, Deputy Attorney General; Betsy S. Elliott, Senior Special Counsel, on brief), for appellant.
No brief or argument for appellee.
Present: Chief Judge Moon, Judge Barrow and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The Commonwealth of Virginia, Department of Social Services, Division of Child Support Enforcement (DSCE) appeals from an order (1) crediting Bedford Davis for a lump-sum Social Security check received by its applicant for DSCE services, Brenda Davis, thereby reducing the child support arrearages and medical expenses owed by Bedford Davis, the child's father, to Brenda Davis; and (2) directing Brenda Davis to pay Bedford Davis $53.00 a month out of benefits paid to her for the support of their child by the Social Security Administration and the Veteran's Administration. The benefits are paid to her on his behalf as determined entitlements due to Mr. Davis's disabilities. The DSCE presents two questions on appeal: (1) Whether the court's allowance of a lump sum payment of Social Security funds for the benefit of the child to offset a non-custodial parent's child support arrears constitutes a retroactive modification of support; and (2) Whether the court erroneously ordered Brenda Davis, the custodial parent, to make monthly payments to Mr. Davis, the non-custodial parent, from funds she receives from the federal government as a determined entitlement for the child's benefit. The questions presented are controlled by this Court's recent holdings in two companion cases.
I.
This Court answered the first question presented in Commonwealth, Department of Social Services, Division of Child Support Enforcement, Ex. Rel. Comptroller of Virginia v. Skeens, ___ Va. App. ___, 442 S.E.2d 432 (1994). In that case we held that a trial court does not alter the amount of child support that the parent has been ordered or is required to pay when it grants credit to a payor parent for Social Security benefits received by his children on account of his disability. We reasoned that the court, in granting the credit, simply allows a source of funds, indirectly attributable to a parent, to be used to satisfy the parent's court-ordered support obligation. Thus, a circuit court does not retroactively modify a child support award or forgive an accumulated arrearage by crediting a dependent child's Social Security benefits to satisfy a support obligation. Id. at 435.
II.
On the second question presented, we hold that the trial court was without authority to order Ms. Davis to make payments to Mr. Davis out of the federal funds she received for the support of their daughter.
The trial court found that Mr. Davis's child support obligation under the statutory guidelines was not enough to support his daughter. However, the trial court also noted that each month his daughter received $253.00 in benefits ($153.00 from the SSA and $100.00 from the VA), about $100.00 more than the amount the child support guidelines prescribed. Of the $100.00 paid by the VA, $78.00 was subtracted from Mr. Davis's own benefits. The trial court found that $200.00 per month was an adequate amount of child support and directed Brenda Davis to return $53.00 of her daughter's monthly benefits to Mr. Davis based on his reduction of VA benefits. While this was a practical solution to the problem of support, we must agree with appellant that the trial court lacked authority to direct Brenda Davis to pay Mr. Davis the $53.00 out of these federal entitlements.
Federal Supplemental Security Income (SSI) benefits are not subject to legal process for payment of child support. Under 42 U.S.C.A. Sec. 407, Social Security benefits "shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to levy, attachment, garnishment, or other legal process." See Brevard v. Brevard, 74 N.C. App. 484, 328 S.E.2d 789 (1985) (holding that trial court had no power to order divorced husband to pay over to court or to mother of children any part of Social Security benefits father had received, or might receive in future, as payee for children in custody of mother, because statute providing that Social Security benefits are neither assignable nor subject to legal process expressly applies to funds which have been disbursed and because statutory exception was inapplicable due to fact that children were beneficiaries and father was representative payee). Similarly, under 38 U.S.C.A. Sec. 3101(a), Veteran's benefits are exempt from attachment. This is true despite the fact that such exemptions would not prevent consideration of federal benefits in determining amount of child support to be ordered. See Cohen v. Murphy, 368 Mass. 144, 330 N.E.2d 473 (1975). Therefore, it was error for the circuit court to order Brenda Davis to make payments to Mr. Davis out of the federal funds she received for the support of their daughter.
Whatever discrepancy there may be between the amount of support to which the child is entitled and the total benefits paid by the SSA and VA is to be worked out between Mr. Davis and those agencies.
Accordingly, the judgment is modified to the extent it requires Mrs. Davis to make payments to Mr. Davis.
Modified and affirmed.