EFFECT OF SOCIAL SECURITY BENEFITS ON CHILD SUPPORT

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I. Social Security Benefits in General

Title II of the Social Security Act provides a federal grant of old-age and disability insurance benefits. 42 U.S.C. § 402. Upon satisfying the necessary age requirements, a fully insured Social Security retiree and a spouse or ex-spouse who was married to the retiree for at least 10 years are entitled to Social Security retirement benefits. Further, both fully insured workers who become disabled and their dependents are entitled to Social Security benefits.

Social Security benefits are not a vested right. Congress retains the right to alter, amend, or repeal any provisions of the Social Security Act.42 U.S.C. § 1304. Indeed, in Fleming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367 (1960), the Court refused to analogize Social Security benefits to an accrued property right in the form of an annuity. The Court stated:

Each worker’s benefits, though following from the contributions he made to the national economy while actively employed, are not dependent on the degree to which he was called upon to support the system by taxation. It is apparent that the non-contractual interest of an employee covered by the act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments.

Feming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 1371-72 (1960).Accord In re Marriage of Nizenkoff, 65 Cal. App. 3d 136, 135 Cal. Rptr. 189 (1976) (Congress’s retention of Section 1304 f the Social Security Act reaffirms the view that Social Security benefits are not property); see also Richardson v. Belcher, 404 U.S. 78, 92 S. Ct. 254 (1971) (the expectation of public benefits under the Social Security Act does not confer a contractual right to receive the expected amounts).

Thus, Social Security benefits may not be treated as a property interest because Congress has retained the power to alter, amend, or repeal the benefits. The fact that Social Security benefits are not a vested right plays an important part in the courts’ determination that Social Security benefits are not subject to division on divorce.

Social Security benefits are also not transferable or assignable, and they are not subject to execution, levy, attachment, garnishment, or other legal process. 42 U.S.C. § 407(a). This section applies to benefits received as well as future benefits. Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S. Ct. 590 (1973). The anti-assignment provision, however, does not apply to legal process brought for the enforcement of an individual’s legal obligation to provide child support and spousal support. 42 U.S.C. § 659(a); see, e.g., Mariche v. Mariche, 243 Kan. 547, 758 P.2d 745 (1988). Thus, by the clear terms of the federal statute, Social Security benefits are to be considered funds available for the support of children.

II. Social Security Benefits Received by a Parent

For purposes of child support, Social Security benefits received by a parent constitute income. E.g., In re Marriage of Simon, 856 P.2d 47 (Colo. Ct. App. 1993) (Social Security disability is income);Forbes v. Forbes, 610 N.E.2d 885 (Ind. Ct. App. 1993) (Social Security disability benefits are income); In re Marriage of Lee, 486 N.W.2d 302 (Iowa 1991); In re Marriage of Benson, 495 N.W.2d 777 (Iowa Ct. App. 1992); In re Marriage of Callaghan, 19 Kan. App. 2d 335, 869 P.2d 240 (1994); In re Marriage of Durbin, 251 Mont. 51, 823 P.2d 243 (1991); In re Marriage of Stringham, 124 Or. App. 626, 863 P.2d 504 (1993); Whitaker v. Colbert, 18 Va. App. 202, 442 S.E.2d 429 (1994). Indeed, 42 U.S.C. § 659(a), providing an exception to the anti-alienation provision of 42 U.S.C. § 407 for support, may be read as expressly authorizing state courts to consider Social Security benefits as income for purposes of spousal support and child support.

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The trial court modified the parenting plan to designate Father as the primary residential parent.

Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Mother argued her failure to notify Father of Child’s relocation to Texas was a “single violation” that did not rise to the level of a material change justifying a change of custody.

Tennessee courts apply a two-step analysis to requests to change the primary residential parent designation. The threshold issue is whether a material change in circumstance has occurred since the court’s prior custody order. Only if a material change in circumstance has occurred does the court consider whether a modification is in the child’s best interest.

In determining whether a material change has occurred, courts consider the following factors: (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child’s well-being in a meaningful way.

Not every change in circumstance is a material change; the change must be significant before it will be considered material. However, the change does not have to pose a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan.

Mother is correct that courts are disinclined to allow a single incident to serve as the basis for changing a primary residential parent designation. For example, in Beckham v. Beckham, the Court stated:

[A]n apparently isolated episode of poor judgment . . . is insufficient to establish a material change of circumstance. If that were the case, no parent ever would be able to maintain custody of his or her children as parents are inherently human and fallible. A parent is not required to be perfect or error free in his/her parenting in order to avoid there being a material change of circumstances.

After reviewing the record, the Court concluded:

[W]e find Mother’s argument unavailing because the lack of notice of her move to Texas is not the sole basis for finding a material change in circumstance. The change in circumstance can best be described as a lack of stability in the life of Mother since she was designated primary residential parent. As the record reflects, Mother’s move to Texas was not her only move, and Mother’s moves have directly impacted [Child] by necessitating changes in schools. As Mother conceded, [Child’s] support system has been “rocky.” At the same time, while his life may have lacked stability at the time of the divorce due to his military career and deployments, Father’s life has become more stable.

After a thorough review of the record, we find that Father did show a material change in circumstance. Mother’s move to Texas, by itself, may not rise to the level of a material change in circumstance, but the Texas move coupled with the prior eleven years of moves does.

Accordingly, the trial court’s change of custody was affirmed.

Skowronski v. Wade (Tennessee Court of Appeals, Middle Section, October 27, 2015).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.

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Herston on Tennessee Family Law

Facts: Father and Mother, the parents of Child, divorced in 2003. Mother was named the primary residential parent. Father received minimal parenting time because, at the time of divorce, he was active duty military and subject to multiple deployments.

texas moveIn 2013, Father petitioned for a change of custody. He alleged Mother relocated to Texas without providing notice. He further alleged her home provided an unstable environment.

The proof showed Mother moved 11 times since the divorce, thereby forcing Child to change school seven times. Many of Mother’s moves were caused by her unstable employment history. Conversely, Father had exhibited much more stability.

Child testified that her preference was to stay with Mother, with whom she had lived the majority of her life.

The trial court modified the parenting plan to designate Father as the primary residential parent.

Mother appealed.

On Appeal: The Court of Appeals

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