On Appeal from Superior Court, Chittenden Unit, Family Division Linda Levitt, J.
Priscilla B. Dubé and Franklin L. Paulino of Bergeron, Paradis & Fitzpatrick, LLP, Burlington, for Plaintiff-Appellee.
Christopher L. LeBlanc, Pro Se, Williston, Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. In a second appeal to this Court, father argues that the magistrate and the family division of the superior court erred on remand by not awarding him a credit for the entire lump-sum derivative Social Security Disability Insurance (SSDI) benefit given to mother as representative payee for the parties’ son, by not imputing income to mother, and by granting mother a deviation from the child-support guidelines calculations. We affirm.
¶ 2. The facts of this case are set forth in detail in our first decision, LaMothe v. LeBlanc (LaMothe I), 2013 VT 21, 193 Vt. 399, 70 A.3d 977. This is a parentage action in which the family court, in a 2006 order based on the parties’ stipulation, assigned physical rights and responsibilities to mother and ordered father to pay mother $175 per month in child support. Because the new order contemplated that the minor child would spend well over thirty percent of nights with father, the parties stipulated to a new child-support order pursuant to the shared custody guidelines. In November 2008, after father was disabled in a motor vehicle accident, the family court issued a modified child-support order, again based on the parties’ stipulation, that did not require either party to pay child support. In November 2010, mother, as representative payee, received from the Social Security Administration a $4370 lump-sum derivative disability benefit for the parties’ son representing a twenty-three-month period between when father applied for and was granted the derivative benefit. The ongoing derivative benefit was initially $190 per month and has increased modestly since then.
¶ 3. In December 2010, father filed a motion asking the family court to require mother to pay him monthly child support from the monthly derivative benefit she was receiving and to apply the lump-sum derivative benefit that she received toward his share of uninsured dental bills for the minor child’s braces. He also asked the court to impute income to mother. Both the magistrate and the family court on appeal denied father’s motion in all respects, and he appealed to this Court. In LaMothe I, we held that “in the absence of a deviation from the guidelines calculation, father is entitled to an award of child support in the amount of the credit to him for the derivative benefit payment to mother less his child support obligation pursuant to the guidelines.” 2013 VT 21, ¶ 36. Accordingly, we remanded the matter for the magistrate to “complete its consideration of mother’s deviation request before issuing a new child support order.” Id. ¶ 36 n.11. As for the lump sum, we directed the magistrate on remand to “ensure that mother applies the lump sum toward father’s share of the [$5780] dental bill.” Id. ¶ 41. Finally, we upheld the magistrate’s decision not to impute income to mother, concluding that the record supported the magistrate’s finding that mother was not voluntarily underemployed. Id. ¶ 43.
¶ 4. On remand, the magistrate again found mother not to be voluntarily underemployed and made several guidelines calculations for various periods between 2010 and 2013. After crediting father for the monthly derivative benefit that mother received during those periods, the magistrate arrived at monthly amounts between $100 and $150 that mother owed father under the guidelines. After examining the factors contained in 15 V.S.A. § 659(a), the magistrate deviated from the guidelines and ordered that neither party be required to pay child support to the other from December 2010 on. The magistrate also ruled, pursuant to this Court’s remand order, that father was entitled to a credit out of the $4370 lump-sum derivative benefit for his payment of one-half of the minor child’s dental bills. Accordingly, the court ordered mother to pay father $50 per month, beginning in March 2014, until the $2890 credit was satisfied.
¶ 5. Father appealed to the family court, which upheld the magistrate’s decision in all respects. On appeal to this Court, father principally argues that the magistrate erred by not awarding him the entire $4370 lump-sum derivative benefit, by not finding mother voluntarily underemployed, and by deviating from the guidelines. Our review is based on the record before the magistrate. See 4 V.S.A. § 465 (allowing appeal from magistrate decision “on the record” to family division); V.R.F.P. 8(g)(4) (stating that appeals to family division are “on the record”). We give deference to the magistrate’s factual findings, and will affirm “if the conclusions of law are supported by the findings.” Tetreault v. Coon, 167 Vt. 396, 399-400, 708 A.2d 571, 574 (1998). We review de novo the family court’s conclusions of law. Coyle v. Coyle, 2007 VT 21, ¶ 5, 181 Vt. 583, 925 A.2d 996 (mem.).
¶ 6. We first address father’s arguments regarding the lump-sum derivative benefit. According to father, the magistrate erred by not crediting him for the entire $4370 and thus not requiring mother to pay him $4370 rather than the $2980 representing half of the child’s dental bills. Father reasons as follows. He and mother have nearly equal time with the minor child, and both have an obligation to support the child in their respective households. The zero child-support order in effect during the period in which the lump sum accrued reinforced the fact that neither parent was entitled to child support from the other parent. By ordering mother to pay him back only $2980 of the $4370 lump sum, father contends, the magistrate effectively retroactively modified the zero child-support order in effect during the period covered by the lump-sum award by requiring him to pay mother $1390 in child support for that period.
¶ 7. We disagree. In LaMothe I, we held that the lump-sum derivative benefit must be “credited toward father’s child support obligations, including those relating to health expenses, ” 2013 VT 21, ¶ 40, and, accordingly, ordered the magistrate on remand to “ensure that mother applies the lump sum toward father’s share of the dental bill, ” id. ¶ 41. In so holding, we relied on our previous decision in Louko v. McDonald, 2011 VT 33, ¶ 1, 189 Vt. 426, 22 A.3d 433, where we held that “a retroactive Social Security disability lump-sum benefit payment, paid directly to the children of a worker, may offset a child support arrearage.” In Louko, we rejected the Office of Child Support’s argument that applying a lump-sum derivative benefit as a credit against child support arrearages would be an unlawful retroactive modification of a preexisting child-support order. Id. ¶¶ 7, 12, 16; see 15 V.S.A. § 660(e) (“An order may be modified only as to future support installments and installments which accrued subsequent to the date of notice of the motion to the other party or parties.”). We reasoned that retroactively crediting a lump-sum derivative benefit against child-support arrearages stemming from a previous order is not the same as retroactively modifying the order. Louko, 2011 VT 33, ¶ 15.
¶ 8. Here, on remand, the magistrate applied the lump sum to father’s $2890 share of the minor child’s dental bill, as required by our remand order. Apart from sharing medical expenses, there was no child-support obligation in place during the period covered by the lump-sum payment. Thus, this case is fundamentally distinct from Louko, where the arrearages stemmed from a preexisting child-support obligation. Notwithstanding the parties’ shared-custody situation, father is not entitled to a credit against an obligation that did not exist during the relevant period. See Rathbone v. Corse, 2015 VT 73, ¶¶ 16-17, ___ Vt. ___, ___ A.3d ___ (holding that father is “entitled to credit the SSDI derivative benefit mother received on behalf of the parties’ child against his prior child-support obligation, ” but recognizing “that where an SSDI derivative benefit exceeds the amount of a child-support obligation, the difference between the two should be considered as a gratuity for the child”); LaMothe I, 2013 VT 21, ¶ 22 (acknowledging that “the Vermont courts do not have the authority to order the SSA to divert a portion of the derivative benefit” to parent receiving SSDI benefit where derivative benefit exceeds that parent’s obligation).
¶ 9. In this case, the magistrate credited the $4370 lump-sum benefit against father’s total court-ordered obligation during the period covered by the lump sum, which was $2890. In short, father was credited to the full extent of his existing obligation under the then-applicable order. If we were to require mother to reimburse father for the full lump-sum derivative benefit beyond his support obligation for the period covered by the lump-sum benefit, we would, in effect, be retroactively modifying the child-support award, in violation of § 660(e). Accordingly, father is not entitled to the amount by which the lump sum ...