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CHILDREN AND YOUTH SERVICES ALLEGHENY COUNTY v. WILLIAM CHORGO (04/19/85)

filed: April 19, 1985.

CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY
v.
WILLIAM CHORGO, APPELLANT



Appeal from the Order of the Court of Common Pleas, Allegheny County, Family Division, at No. FD 82-5927.

COUNSEL

David M. Priselac, Pittsburgh, for appellant.

Alida J. Kornreich, Pittsburgh, for appellee.

Brosky, Johnson and Montgomery, JJ.

Author: Brosky

[ 341 Pa. Super. Page 514]

This appeal is from an order denying credit toward a support order for Social Security payments made to appellant's children. Appellant contends that his child support obligation should be reduced by the amount of the Social

[ 341 Pa. Super. Page 515]

Security retirement payments. We agree, but not as to the arrears which accumulated before the Social Security payments began. Accordingly, we reverse.

Children and Youth Services (CYS) commenced this action to enforce a support order and to compel the payment of arrearages. The court below held that the support order should continue at the prior rate; that no credit should be given towards the support obligation for Social Security benefits of the appellant paid directly to the children; and that arrearages should be paid at the rate of $50 per month.

Two broad issues are before us on this appeal. First, whether, and under what conditions, the support obligation should be reduced by the amount of Social Security retirement benefits paid to the children. Second, whether, and under what conditions, the arrearages should be reduced as a result of these payments. Each issue will be treated in turn.*fn1

Credit for Social Security Payments

Within this issue there are three questions to be answered. Why should credit be given or not given? If credit is to be given, when? Finally, if credit is to be given, how much? Again, these questions will be treated in turn.

First, why should credit be given? The first cases we will quote seem to answer this question with, "Why not?" The Vermont Supreme Court noted that: "These payments are, in a sense, a substitute for the wages the obligor would have received but for the disability, and from which the court ordered payments would otherwise have been made . . . . In theory, at least, the actual source of payments is of no concern to the party having custody as long

[ 341 Pa. Super. Page 516]

    as they are in fact made." Davis v. Davis, 141 Vt. 398, 401, 449 A.2d 947, 948 (1982).*fn2

The same practical approach was taken in Binns v. Maddox, 327 So.2d 726, 728 (Ala.Ct.App. 1976).

An order of support is for the benefit of the children, even though directed to be paid to the mother or other custodian. If the sum directed to be paid by the father is paid by the government through social security benefits derived from the account of the father, the purpose of the order has been accomplished. The father is entitled to be credited with such payments against his liability under the decree.

In a similar vein, the Missouri Court of Appeals wrote the following: "The use of social security payments to satisfy a child support obligation is merely a change in the manner of payment; the nature of the funds is the same." McClaskey v. McClaskey, 543 S.W.2d 832 (Mo.Ct.App. 1976).

None of the foregoing provides an extremely persuasive rationale for the acceptance, vel non, of credit. A more cogent rationale oft-quoted by other jurisdictions, is presented in Andler v. Andler, 217 Kan. 538, 542-3, 538 P.2d 649, 653 (1975). Andler focuses on the "earned" character of Social Security benefits. Since the person obliged to pay support has, in effect, paid for those benefits in advance, he should, it is argued, receive credit for them.*fn3

Social Security benefits paid to the appellee for the benefit of the parties' minor children as the result of the appellant's disability may not, however, be regarded as gratuitous. On the contrary, the payments received by the appellee are for the children as beneficiaries of an

[ 341 Pa. Super. Page 517]

    insurance Policy. The premiums for such policy were paid by the appellant for the children's benefit. The purpose of Social Security is the same as that of an insurance policy with a private carrier, wherein a father insures against his possible future disability and loss of gainful employment by providing for the fulfillment of his moral and legal obligations to his children. This tragedy having occurred, the insurer has paid out ...


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