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Rathbone v. Corse

Supreme Court of Vermont

May 22, 2015

Lori Rathbone
v.
Curtis Corse

On Appeal from Superior Court, Washington Unit, Family Division Thomas J. Devine, J.

Laura C. Bierley and Thomas F. Garrett, Legal Services Law Line of Vermont, Inc., Burlington, for Plaintiff-Appellant.

Curtis Corse, Pro Se, St. Albans, Defendant-Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

REIBER, C.J.

¶ 1. This case comes to us as an appeal from a family court judge’s review of a magistrate’s order that required mother to reimburse father for an overpayment of his child-support obligations. In a September 2013 order that disposed of father’s motion to modify his child-support obligation, the magistrate found that father paid child support while mother also received a social security disability insurance (SSDI) derivative benefit on behalf of the parties’ child through father’s own SSDI benefit. The magistrate cited our decision in Louko v. McDonald for the proposition that father could credit the derivative benefit against his child-support obligation. 2011 VT 33, ¶ 16, 189 Vt. 426, 22 A.3d 433. The family court judge affirmed the magistrate’s order, also citing Louko. Because we conclude that the underlying principle in Louko should extend to the facts of this case, we affirm the decision of the family court judge.

¶ 2. The parties were never married and have one daughter together, who was born on December 22, 2002. The Superior Court, Washington Unit, Family Division assigned sole parental rights and responsibilities to mother in 2006. At the same time, the court held a hearing on child support, at which mother appeared but father failed to appear. The magistrate who presided over that hearing issued a temporary child-support order requiring father to pay mother $10 per week starting in March 2006.

¶ 3. On January 2, 2007, the family court magistrate presided over another hearing to review child support, which mother attended but father again did not. The magistrate issued a default child-support order requiring father to pay $271.00 per month, retroactively effective as of November 1, 2006. The magistrate also determined that father owed an arrearage of $578.64 to the Office of Child Support (OCS) and ordered him to make payments of $25.00 per month. The magistrate ordered that the child-support and arrearage payments be made through wage withholding, with $296.00 being withheld each month.

¶ 4. On December 31, 2009, OCS moved to enforce the 2007 default order, alleging that father had failed to make child-support payments since January 29, 2009. The magistrate held another hearing on February 2, 2010. Father once more did not appear, but mother did. The same day, the magistrate issued an enforcement order that required father to continue paying $271.00 per month in child support and $25.00 per month towards the arrearages he owed to both mother and OCS. Under that order, total payments from father in the amount of $296.00 per month would be made through wage withholding.

¶ 5. Three years later, on March 21, 2013, father filed a motion to modify the February 2010 order on the ground that he was disabled and the parties’ daughter had been receiving a derivative benefit from his own SSDI benefits. The family court held a hearing on July 9, 2013, at which mother appeared in person and father appeared by phone.

¶ 6. On September 3, 2013, the magistrate issued her findings, conclusions, and orders. The magistrate’s undisputed findings follow. The daughter’s derivative benefits through father’s SSDI benefits began in May 2009. After he became disabled, father continued to pay child support. At the time of the July 2013 hearing, father’s child-support obligation was $271.00 per month, but after the new child-support-guideline calculations father’s obligation would be $109.00 per month. In 2009, the amount of the derivative benefit that the parties’ daughter was receiving through father’s SSDI benefit was $272.00 per month. As of September 2013, the amount of the derivative benefit had increased to $287.00 per month. The parties agreed that beginning April 1, 2013, the derivative benefit would take the place of any cash payment of child support from father to mother.

¶ 7. With respect to the past child-support payments made by father, the magistrate concluded that father was entitled to a credit of $271.00 per month for each month that the parties’ daughter received the derivative benefit prior to father’s March 2013 motion to modify. [1] Father agreed that he would seek repayment of only half the credit that was owed to him. The magistrate calculated the total credit to be $14, 183.93. After dividing that amount in half, the magistrate concluded that father should be credited for a $7, 091.97 overpayment. The magistrate ordered mother to repay father $100.00 per month upon becoming employed.

¶ 8. Mother appealed the magistrate’s September 2013 order to a family court judge on the issue of whether the magistrate erred in ordering her to reimburse father for the child-support payments he made while she was receiving the SSDI derivative benefit on behalf of the parties’ daughter. The judge affirmed the order, reasoning that mother would receive a double payment if she were allowed to keep both the SSDI derivative-benefit payment and the payments from father through the wage-withholding order. This appeal followed.

¶ 9. Whether mother must reimburse father for payments during the period when she received the SSDI derivative benefit on behalf of the parties’ daughter is a question of law, our review of which is non-deferential and plenary. N.A.S. ...


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