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  1. #1
    beckncall is offline Junior Member
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    Child Support arrearage and Obligor's Social Security Disability

    What is the name of your state (NC)?
    My son is 16 and his father has not been involved in his life since he was 4. He has never alternated weekends with me (maybe 3 times total). The last time he bought our son a Christmas present was 1998. He actually left town with about eight hundered dollars after his friends pooled their money to get child support together so that he wouldn't be arrested. I believe that was 2000.

    In January 2005, I asked that his child support be reduced from $387.00 to $175.00 per month. I was thinking that if he inquired or was found, he would be told of the reduction and would maybe feel that this amount was more manageable. He was found in South Carolina and paid approximately 7 thousand dollars total in 2005 and 2006. Then nothing.

    We didn't see him again until March 2008, when South Carolina found him again and gave him a court date. He contacted me and asked that I appear with him so he wouldn't have to go to jail again, I did go with him, he paid one thousand dollars over a period of three months. Then he applied for Social Security Disability. He has never paid support willingly, it's always had to be garnished or jail.

    Then back to the beginning, the reason I have a son is because his father assured me that he had had a vasectomy and had the sperm count re-checked to make sure it worked. Ten and a half months after we were married, our son was born. He had lied about the surgery. I was 40 years old and he was 45 at that time. I already had children and my youngest was eight years old.

    My son's father was almost twenty nine thousand dollars in arrears as of 7/26/2010...all except forty two hundred dollars was accumulated before the two years 6/2008-6/2010 period of filing and being approved for social security disability....which leaves over twenty four thousand in arrears before the period of disability.

    My son received a lump sum nineteen thousand dollar check from Social Security for the period 6/2008-6/2010. IF my son's father had been current with his child support obligation, our son would still have received the lump sum payment for this period of time. But, because his father was in arrears, the Judge made a judgment that my son's lump sum Social Security check be credited toward his father's arrears. Also, the Judge ordered the father to pay out of his own lump sum check, ONLY seventy four hundred dollars...the Judge also asked if he wanted to make payments or pay it all...my son's dad said he would pay five thousand dollars, the Judge told him one hundred dollars would be taken from his check each month until the remaining arrears are paid.(from what info I've got, his check was probably over forty thousand dollars). So, all the money he made "under the table" and while he was in hiding for almost ten years...he got to keep and spend while our son and I struggled.

    The money that could have gone into a savings and to help him our son with community college and to make our lives a little easier, now has to go to pay braces and tutoring (our son has a learning disability and has been retained two years, he will be twenty years old when he graduates from high school) Also, now that he's sixteen, he will be needing a car along with that comes high insurance rates!!

    If all this had happened when our son was six instead of sixteen, it would have been easier to handle. I would have been looking ahead to a decent amount of money coming in to support him. Our son will begin having the monthly checks come in his name when he is 18 and can collect this money until he is 19 years and 2 months as long as he is in school.

    With this sort of judgment, arrears are encouraged if someone is planning to file a disability claim. (he wasn't required to pay child support during the period of his filing for disability 6/2008-6/2010). Also, the amount that I reduced the child support by saved him over ten thousand dollars in extra arrears!!!

    I believe that the Judge should have taken the forty two hundred dollars (175.00 x 24 months of the disability period) out of the total arrears and paid the twenty five thousand to my son. That would have left the father with at least fifteen thousand...probably more. He is also receiving a monthly check of a good amount to live on because our son's check doesn't come out of the father's.

    The judge turned to the father after it was over and said..."now remember, you have a special needs child". He has never, ever offered money for camp, shoes, lunch money, school pictures, school supplies....NOTHING!!!What is the name of your state (NC)?
    Last edited by beckncall; 07-28-2010 at 10:25 PM.
  2. #2
    Proserpina is offline Senior Member
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    Did you have a question in there?
  3. #3
    beckncall is offline Junior Member
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    My question

    How should the judge have ruled? Sorry about that, I suppose with all the things running through my brain about this situation and trying to get my thoughts conveyed,...anyway....before the court date I found several cases of this type in other states and they were handled differently. The father's history of not paying was never questioned in my situation, neither was his non-involvement with his son. It was only after the judge made the decision about how much arrearage the father had to pay that I was asked if I had anything to say. The case is an NC case, the father lives in SC so that's where I had a court date. My CSE agent says SC have to go by the NC orders which say any payments and arrears outstanding will be garnished monthly at $175.00 (ordered Child Support) and $25.00 (arrearage)
  4. #4
    LdiJ is offline Senior Member
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    Quote Originally Posted by beckncall View Post
    How should the judge have ruled? Sorry about that, I suppose with all the things running through my brain about this situation and trying to get my thoughts conveyed,...anyway....before the court date I found several cases of this type in other states and they were handled differently. The father's history of not paying was never questioned in my situation, neither was his non-involvement with his son. It was only after the judge made the decision about how much arrearage the father had to pay that I was asked if I had anything to say. The case is an NC case, the father lives in SC so that's where I had a court date. My CSE agent says SC have to go by the NC orders which say any payments and arrears outstanding will be garnished monthly at $175.00 (ordered Child Support) and $25.00 (arrearage)
    Should the judge have ruled differently? Maybe. Did the judge have the right to rule the way that he did? Yes, the judge had that right. You can appeal the judge's decision if you believe that an error of law was made, but that's expensive and you may end up spending most of your son's money on legal fees, and still end up with the same result.

    It also sounds to me like your son is going to be collecting a monthly benefit check plus 200.00 a month from dad. SSDI benefits for children usually replace child support so you are lucking out there a bit.
  5. #5
    beckncall is offline Junior Member
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    Who can I write letters to about this situation?

    I understand that the judge has the right to rule. My son and I have done without so much over the years, and it took 5 minutes for the judge to rule with no questions asked until after the ruling, and then I was permitted to speak about my son, nothing else.

    Again, I tried to be fair in 2005 by reducing the child support. Shortly after that, I did receive approx 7 thousand dollars because he was found and put in jail. He had to pay support to be released.

    He kept switching jobs so no garnishments could be collected and also worked "under the table" almost 10 years so he wouldn't have to pay support. When his own father died, no one knew how to reach him to attend the funeral.

    If he had been current with his support obligation, my son would still have received the lump sum Social Security Disability check.

    The period of disability payment was for two years. I can understand subtracting the child support from that two year period from his total arrears. I can not understand going back years and wiping the slate almost clean, with the exception of 7,400 and he got a choice to make payments on 1,400 of that. So, the 200.00 isn't on going.

    If he had tried to pay support, I would have continued to help him and forgiven some of the arrearages. I want to be fair, but I also would like to be treated fairly, both by my father's son and the court.



    In my opinion, North Carolina and South Carolina courts encourage arrearages with this type of thinking.

    My son's father "has willfully accrued arrears." He was favored by the court system. My son deserves a gratuity from his father.

    I copied and pasted the passage below from the North Dakota Child Support Guidelines.

    I know I'm not in North Dakota, but couldn't find anything when I searched North and South Carolina.

    If you feel that I have misinterpeted these guidelines please let me know.

    [¶8] Effective January 1, 1995, N.D. Admin. Code § 75-02-04.1-02(11) of the Child Support Guidelines was adopted to provide:
    A payment of children's benefits made to or on behalf of a child who is not living with the obligor must be credited as a payment toward the obligor's child support obligation in the month (or other period) the payment is intended to cover, but may not be credited as a payment toward the child support obligation for any other month or period.
    The drafters of the Child Support Guidelines explained:
    75-02-04.1-02(11): Four commentors, familiar with previous drafts of the proposed rules, expressed concern that there is no provision specifically requiring that children's benefits paid directly to the child be credited against the obligor's child support obligation. Another commentor regarded any provision for such crediting as improper. The language about which the commentors were concerned (which was drafted, but not specifically proposed as a rule) provided:
    A payment of children's benefits made to or on behalf of a child who is not living with the obligor must be credited as a payment toward the obligor's child support obligation in the month (or other period) the payment is intended to cover, but may not be credited as a payment toward the child support obligation for any other month (or period).
    This language was not included because it does not go to the establishment of child support guidelines. However, while the subsection actually addresses the proper crediting of payments, its inclusion complements and explains the inclusion of "children's benefits" as part of the obligor's gross income. The subsection also reinforces the holding in Guthmiller v. Guthmiller, 448 N.W.2d 643 (N.D. 1989). Based on these comments, the subsection is included.
    Summary of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code ch. 75-02-04.1, Child Support Guidelines, pp. 10-11 (November 14, 1994). The regulation "reinforce[d]" the holding in Guthmiller by requiring that children's benefits be credited as a payment toward the obligor's child support obligation rather than creating a rebuttable presumption that the credit will be applied.
    [¶9] We interpreted N.D. Admin. Code § 75-02-04.1-02(11) in Tibor v. Bendrick, 1999 ND 92, 593 N.W.2d 395. In Tibor, the obligor was declared disabled and he began receiving disability benefits, and his child began receiving monthly social security dependency benefits. Id. at ¶ 3. The child also received a lump sum payment representing social security dependency benefits from September 1995 through January 1998. Id. The district court granted the obligor's motion to eliminate his child support obligation because the monthly social security dependency benefits exceeded his monthly child support obligation, and the court determined the lump sum payment should be credited toward the obligor's child support arrearages. Id. at ¶ 5. Relying on N.D. Admin. Code § 75-02-04.1-02(11), we rejected in part the obligee's claim that crediting the lump sum payment to the obligor's child support arrearages was an improper retroactive modification:
    [T]he guidelines expressly provide that benefits, including social security disability dependency benefits, must be credited as a payment toward [the obligor's] child support obligation for the particular months or period the payment was intended to cover.
    The record indicates the lump sum payment represented benefits from September 1995 through January 1998, when [the obligor] was disabled and not working. However, through no fault of [the obligor], [the child] did not receive these benefits until February 1998. Following the guidelines, we conclude [the child's] receipt of the lump sum payment of social security disability benefits, which resulted from a lapse of time between the disability determination and the commencement of benefits, was a payment toward [the obligor's] obligation for the period the payment was intended to cover. The payment must therefore be credited to [the obligor's] child support arrearages which accrued from September 1995 through January 1998.
    Tibor, at ¶¶ 7-8. We remanded for a determination of the amount of arrearages that accumulated before September 1995, the starting date of the social security dependency benefits, because under the regulation the obligor was not entitled to credit for that amount. Id. at ¶ 9.
    [¶10] We have not addressed whether a child support obligor is entitled to reimbursement for child support received by an obligee after the obligee receives lump sum social security dependency benefits for the children which exceed the child support ordered to be paid by the obligor. Most courts deny reimbursement under these circumstances.
    [¶11] Courts essentially use three different rationales to deny reimbursement. The majority of courts simply conclude, as a matter of law, that any excess payment will equitably be deemed to be a gratuity to the child so the custodial parent is not obligated to refund to the obligor any overpayment. See, e.g., Child Support Enforcement Agency v. Doe, 990 P.2d 1158, 1167-68 (Haw. Ct. 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. Ct. App. 1998), aff'd 588 N.W.2d 720 (Minn. 1999). A second line of cases reasons that, as a matter of law, the obligor parent is not entitled to reimbursement of any excess child support, because the funds belong to the child and not to the noncustodial parent. See, e.g., Keith v. Purvis, 982 So. 2d 1033, 1038-39 (Miss. Ct. App. 2008); Steel v. Hartwick, 551 S.E.2d 42, 45 (W. Va. 2001).
    [¶12] The third line of cases is represented by Filon v. Green, 2006 WL 2683516 (Ohio Ct. App., Sept. 20, 2006), an unreported decision relied upon by the district court in this case. In Filon, at *1, the court applied an abuse of discretion standard of review and considered the totality of the circumstances in the case. In denying reimbursement, the Filon court noted that 42 U.S.C. § 407(a) prohibited the use of the lump sum payment to satisfy the request for reimbursement, and stressed that the obligor never informed the obligee of his pending application for benefits, which would have allowed the obligee to properly allocate resources to prepare to repay the overpaid support. Id. at *4. Instead, the obligee, as in this case, used the lump sum payment to invest in a college fund for the child and invested the remainder for the child's benefit. Id. The court rejected the argument that its ruling would "serve as an incentive to accrue arrears in the hope that a future payment may alleviate the obligor from paying his obligation," because "equity does not favor a party who has willfully accrued arrears." Id. at *5.
  6. #6
    mistoffolees is offline Senior Member
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    Quote Originally Posted by beckncall View Post
    I copied and pasted the passage below from the North Dakota Child Support Guidelines.

    I know I'm not in North Dakota, but couldn't find anything when I searched North and South Carolina.

    If you feel that I have misinterpeted these guidelines please let me know.
    Stop right there. ND rules are irrelevant in NC.

    You got your answer. The judge had the right to rule as he did. It may have been questionable, but it was well within his purview. If you disagree, you can request an appeal (unless the time limit has already elapsed). An appeal will certainly be expensive and may not be successful.

    If you can't/won't file an appeal, then the decision stands, so no amount of complaining is going to change it. Learn to live with it.
  7. #7
    beckncall is offline Junior Member
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    I stated in an earlier post, I know I'm not in North Dakota…nor Kansas

    I do think North Carolina's children should be just as important to the courts as children in North Dakota.

    ....And, maybe if I complain to the right person or group of people, I can help change something in North Carolina so that "true deadbeat parents" can't keep cheating their children with the help of our court system.

    Yes, I will “learn to live with it” as I've learned to live with inadequate support for my child thru the years.

    All this happened just Monday of this week…

    So, thanks for allowing me to vent.
  8. #8
    LdiJ is offline Senior Member
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    Quote Originally Posted by beckncall View Post
    I stated in an earlier post, I know I'm not in North Dakota…nor Kansas

    I do think North Carolina's children should be just as important to the courts as children in North Dakota.

    ....And, maybe if I complain to the right person or group of people, I can help change something in North Carolina so that "true deadbeat parents" can't keep cheating their children with the help of our court system.

    Yes, I will “learn to live with it” as I've learned to live with inadequate support for my child thru the years.

    All this happened just Monday of this week…

    So, thanks for allowing me to vent.
    You CAN appeal the ruling, but please understand something which I explained to you before. Normally, the benefits that the child receives completely replaces child support. You are receiving the child's benefits PLUS 200.00 a month from dad. If the case is re-heard, you might lose 175.00 a month in regular child support, and/or have it reclassified as arrearages, and be no better off or even worse off than you are now.

    If 19k was your son's benefit for 2 plus years, then you are getting anywhere from about 600.00 a month to 800.00 a month now. That is dramatically more than you have ever received in the past, and that has to count for something.
  9. #9
    beckncall is offline Junior Member
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    Thank you LdiJ

    I do "get" your point....and I really do appreciate your help...and I am thankful for the money...it's been a long time coming....now I've been able to pay the $5,500 cash for braces instead of monthly payments...and get tutoring for my son at $40.00 to $80.00 per week,

    As I said earlier, all this just happened...and I do feel that the father was rewarded for being a deadbeat....and the lady was a newly appointed judge who is as bad at math as I am


    I really do thank you for your insight
  10. #10
    LdiJ is offline Senior Member
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    Quote Originally Posted by beckncall View Post
    I do "get" your point....and I really do appreciate your help...and I am thankful for the money...it's been a long time coming....now I've been able to pay the $5,500 cash for braces instead of monthly payments...and get tutoring for my son at $40.00 to $80.00 per week,

    As I said earlier, all this just happened...and I do feel that the father was rewarded for being a deadbeat....and the lady was a newly appointed judge who is as bad at math as I am


    I really do thank you for your insight
    Be thankful that she was a newly appointed judge. Otherwise you likely would not be getting the 200.00 a month from dad on top of the SSDI benefits...seriously.

    An experienced judge might have decided that the 19k wiped out his arrearages entirely and that all you should get is the SS bennies.
    Last edited by LdiJ; 07-29-2010 at 08:00 PM.

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