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California Family Law Report


Case of the Month Archive

June 2016

Current Fam C §4504 permits that application . . .


In partial reversal, Fourth District holds that trial court erred by determining that excess Social Security derivative benefits paid for child could not be applied to child support arrearages that accrued before those payments began


In re Marriage of Hall and Frencher

(April 29, 2016)

California Court of Appeal 4 Civil E063915 (Div 2) per Miller, J (McKinster, Acting PJ and Slough, J, concurring). San Bernardino County: Daniel, Temp J, affirmed in part, reversed in part, and remanded. For appellant: pro per. For respondent: no appearance. CFLP §E.34.7.


In 2003, a trial court ordered Bruce Frencher, Sr. to pay $507 per month in child support for his daughter, Kayla. In November 2006, a trial court increased his child support obligation to $562 a month. In February 2011, however, a trial court reduced Bruce’s child support payments to $276 per month, retroactive to November 2010. It further reduced them to $82 per month in March 2011. Then, at a hearing on August 11, 2011, the trial court ordered Bruce to pay child support of $8.50 a month and found that he owed child support arrearages of $16,421 for the period from January 1, 2007, through July 31, 2011. It ordered Bruce to pay $150 a month toward those arrearages and warned him that interest would accrue.


Meanwhile, Bruce had begun receiving Social Security disability benefits, which meant that Kayla was receiving Social Security derivative benefits of $960 a month, starting June 2014. Social Security also made a lump sum payment of $20,824 in derivative benefits for the period from July 2012 to April 2014. Bruce’s ex-wife, Winifred Hall, gave him half of those benefits.


At a hearing on January 13, 2015, Winifred and Bruce stipulated that he had made payments of various amounts toward the child support arrearages from September 2011 through June 2014, and that those payments totaled $5,151. The trial court subtracted that amount from the total arrearages as of August 2011 ($16,421) and concluded that Bruce still owed $11,270 in arrearages. The court then calculated that Social Security had paid $8.50 per month for Bruce’s child support obligation for 22 months, or a total of $187, and subtracted that from the arrearages, leaving $11,083 still unpaid. The court also found that since August 2014, Social Security derivative benefits had fully paid Bruce’s child support obligation because they were higher than any amount that it could order at his income level.


The trial court then asked Bruce to provide legal authority for its applying the excess derivative benefit payments (over and above $8.50 per month) toward the arrearages. When he failed to provide any authority, the trial court determined that the excess derivative payments could not be applied to arrearages that Bruce owed before Social Security began making derivative payments and concluded that he still owed $11,083 in child support arrearages. The trial court ordered Bruce to continue making $150 a month payments toward the arrearages.


Bruce appealed, and the Fourth District affirmed in part, reversed in part, and remanded.


Go with the current . . .
Bruce contended that the lower court should have applied all of the excess derivative benefits toward his child support arrearages, not just those that accrued after the payments began. The justices agreed. They noted that current Fam C §4504(b) provides that Social Security derivative payments “ ‘shall be credited toward the amount ordered by the court to be paid by the noncustodial parent for support of the child . . . .’ ” And, CCP §695.221 requires the money to be credited first against the current month’s support, then against the remaining principal amount of unsatisfied judgment, and then toward accrued interest. Therefore, the panel concluded, the trial court erred by failing to apply the Social Security derivative payments to the principal on the arrearages and then to the interest, after it first applied the payments to Bruce’s current monthly support obligation. The justices recognized that in In re Marriage of Robinson (1998) 65 Cal.App.4 th 93, 76 Cal.Rptr.2d 134, 1998 CFLR 7955, 1998 FA 860, the appellate court held that Social Security derivative benefits do not apply to child support arrearages. However, the justices not only did not agree with that case, they found that it was distinguishable because it was based on a different version of Fam C §4504 than the one currently in effect. Summing up, the justices reversed the portion of the trial court’s judgment that concerned the amount of arrearages Bruce owed, and remanded for that court to recalculate the amount in line with current Fam C §4505(b). The panel affirmed the judgment in all other respects.





This is a nice straightforward case dealing with a specific issue. There is little case law on this issue and this is the first case to address the effect of the current version of Fam C §4504(b) and CCP §695.221. Family law attorneys should keep this in their files for reference the next time a client with this problem walks through the door.



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