Father [F] and Mother [M] married in 2001. They had their only child, a
daughter [D] in 2002. They separated and divorced in 2003. M had sole
physical custody of D and they shared legal custody of her. F was ordered
to pay child support, which he did.
F was a United States Marine. He was honorably discharged in 2004 when
he sustained injuries in Iraq. His injuries left him permanently disabled
and he began receiving disability benefits from the Department of Veterans
In 2006, at M’s request the San Diego Department of Child Support
Services [DCSS] took up her case to enforce her child support order. F’s
child support obligation was reduced to $359.00 per month. He began making
his support payments to DCSS, and DCSS would send a check to M.
In 2011, at M’s request, DCSS petitioned the court to increase F’s
child support. At the time, F was living solely on his VA benefits of
$2,870.00 per month. M was working and had one more year before earning
her bachelor’s degree. The court increased F’s child support
obligation, based on
guidelines (a computer program using relevant financial information) to $719.00 per month.
Also, in 2011, F applied to the Social Security Administration [SSA] for
disability benefits [SSDI] with derivative benefits for D. It took six
years for his application to be approved. He was entitled to $1,088.00
per month, with a lump-sum payment of $78,057.00 for past benefits (from
2011 going forward to his approval). (SSA withheld $19,514.00 for attorney’s
fees, and F received a check for $62,121.65.)
SSA also told M that she would now be receiving $596.00 per month for D,
and a lump-sum check of $41,384.00 for back payments.) However, when she
began receiving the SSDI checks, she did not inform DCSS. That meant F
was over-paying his child support obligation. When DCSS discovered M’s
additional $596.00 per month, it subtracted F’s obligation of $719.00
to $123.00 per month ($719-596 = 123).
F petitioned the court for an audit of DCSS and a finding of how much M
received in her lump-sum amount. He also tried obtaining the information
from M, but she failed to respond. Upon discovering the amount of $41,384
was paid as lump-sum to M, F requested the court credit him with over
payments to M from 2011 to the present.
DCSS requested the court not grant F’s request under California Family
Code Section 4504, which prohibits applying retroactive credit for past-due
derivative benefits when a noncustodial obligor parent (in this case F)
is current in child support and owes no back support.
The trial court disagreed with DCSS, applied M’s lump sum and gave
F credit for the over-payment of support. The court allowed F to apply
the over-payment to future monthly support payments.
DCSS appealed and the Appellate Court agreed with F. Under federal law,
social security payments can be made to pay child support, the state will
honor that amount toward the paying parent’s obligation to pay the support.