COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Lemons and Senior Judge Cole 

Argued at Richmond, Virginia 

GARY S. MOSLEY 

 OPINION BY 

v. Record No. 2851-98-2 JUDGE LARRY G. ELDER 

 NOVEMBER 2, 1999 

DONNA S. MOSLEY 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Denis C. Englisby (Englisby & Englisby, on 

brief), for appellant. 

 No brief or argument for appellee. 

 Gary S. Mosley (husband) appeals from an order of the 

circuit court refusing his request for certain credits against 

accrued arrearages of spousal support and retirement benefits 

due to Donna S. Mosley (wife) pursuant to the parties' final 

decree of divorce. Husband contends that social security 

disability payments made to wife on behalf of the parties' child 

as a result of husband's disability, to the extent those 

payments exceeded amounts husband owed for child support, should 

have been credited against finite arrearages of spousal support 

and retirement benefits he owed wife. We hold that wife held 

those excess sums for the benefit of the child and, therefore, 

that husband is not entitled to credit as against obligations 

owed to wife in her capacity as a former spouse rather than as a 
custodial parent. Accordingly, we affirm the trial court's 

ruling. 

I. 

FACTS 

 Pursuant to a final decree of divorce, as part of the 

equitable distribution award, the court ordered husband to pay 

wife a portion of his military retirement benefits. The court 

also ordered husband to pay spousal and child support. Husband 

failed to pay wife the ordered share of his military retirement 

pay. Husband also failed to pay the ordered spousal support 

that was payable until wife remarried. The court found that the 

amount of the accrued spousal support arrearage for the period 

of approximately twelve months was $7,843.32 and that the 

accrued retirement benefit arrearage was $16,320 at the time of 

the hearing. 

 Husband made all child support payments, in the ordered 

amount of $276 per month, through July 1996. By that time, 

husband had become disabled and had begun receiving social 

security disability payments. Beginning in August 1996, wife 

received $515 per month which was paid to her directly from 

husband's disability benefits for the benefit of the parties' 

child. 

 By motion filed May 19, 1997, husband moved the court to 

reduce the amount of his child support obligation based on 

husband's disability and resulting reduction in income. The 

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trial court granted the motion, reduced the amount to $201 per 

month and made the reduction effective retroactive to the filing 

of husband's May 1997 reduction motion. 

 Husband thereafter sought a credit, against his arrearages 

of retirement benefits and spousal and child support, for the 

$515 monthly social security disability payments made to wife 

for the benefit of their child. The trial court found that 

husband was in arrears, as set out above, in his payments of 

retirement benefits and spousal and child support. It 

calculated an arrearage of child support but ruled, as wife had 

agreed, that husband was entitled to credit for the disability 

payments made to wife on behalf of the child and that these 

payments extinguished the accumulated child support arrearage. 

It did not allow husband credit for the overpayment against the 

spousal support or retirement benefit arrearages.1

II. 

ANALYSIS 

 We previously have held that when a portion of a 

non-custodial parent's social security disability benefits are 

paid to a custodial parent on behalf of the parties' child, 

those monies constitute an indirect payment from the 

 

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1

 The trial court entered judgment against husband for the 

accrued spousal support and retirement pay arrearages. It also 

directed, pursuant to federal statute, that the Department of 

Defense divert a specified portion of husband's military 

retirement and pay it directly to wife until the judgment for 

the spousal support arrearage is satisfied. 
non-custodial parent for which that parent should receive 

prospective credit against an ongoing child support award. See

Whitaker v. Colbert, 18 Va. App. 202, 205-06, 442 S.E.2d 429, 

431-32 (1994) (also holding that amount of social security 

payment should be imputed as income to non-custodial parent 

under Code § 20-108.2(C) for purposes of calculating amount of 

child support owed). This is so because 

[t]he social security benefits received by 

the children are not gratuities, but are 

entitlements earned by [the non-custodial 

parent] through his earlier employment. 

They are a substitute for his lost ability 

to provide for the children through the 

fruits of future employment. They are much 

the same as benefits under a disability 

insurance policy. 

Id. at 205-06, 442 S.E.2d at 431. "The sole and express purpose 

of social security dependent benefits is to support dependent 

children." In re Marriage of Henry, 622 N.E.2d 803, 809 (Ill. 

1993) (citing Jimenez v. Weinberger, 417 U.S. 628, 634, 94 

S. Ct. 2496, 2500, 41 L. Ed. 2d 363, 369 (1974)). "Thus, the 

source and the purpose of social security dependent benefits are 

identical to the source and purpose of child support-both come 

from a non-custodial parent's wages or assets and both provide 

for the needs of the dependent child." Id.

 We also have held that a court may, in its discretion, 

award a non-custodial parent credit for such payments against an 

accumulated arrearage of child support. See Department of Soc. 

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Servs. v. Skeens, 18 Va. App. 154, 159-60, 442 S.E.2d 432, 

435-36 (1994). 

Whether a trial court elects to credit all 

or a portion of Social Security payments 

against [an accumulated arrearage of] a 

court-ordered support obligation should 

depend upon a number of factors, including 

but not limited to the extent to which the 

original support award was sufficient or 

deficient in meeting the child's needs, 

whether any modification of the support 

award has been made based upon the parent's 

disability, or a change in the child's 

needs, or the parents' abilities to provide 

support independent of the Social Security 

payments, and whether both parents have 

acted in good faith. 

Id. at 160, 442 S.E.2d at 436. In Skeens, we noted that, 

although the father should not be rewarded for allowing his 

child support payments to fall into arrears, the record 

contained no indication that he had any source of income or 

assets other than his social security disability benefits from 

which his support obligation or arrearage could be paid. See

id. As a result, we held the trial court did not abuse its 

discretion in ruling that "equity required" such a credit. See

id.

 In the case of a credit for an accumulated arrearage of 

child support, we have rejected the argument that such a credit 

constitutes a retroactive modification of the child support 

award. See id. at 158-59, 442 S.E.2d at 435. In granting such 

a credit, "the court does not alter the amount of child support 

that the parent has been ordered or is required to pay. The 

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court simply allows a source of funds, indirectly attributable 

to a parent, to be used to satisfy the parent's court-ordered 

[child] support obligation. Id. at 159, 442 S.E.2d at 435. 

Such an approach is in keeping with the more general principle 

that "[a] court may, when equitable and under limited 

circumstances, allow a party credit for non-conforming support 

payments, provided that the non-conforming payment substantially 

satisfies the purpose and function of the support award." Id. 

at 158, 442 S.E.2d at 435. 

 We have not heretofore considered whether any excess social 

security disability payments, above and beyond the amounts 

necessary to satisfy current or past-due child support 

obligations, may be credited against a spousal support award or 

retirement benefits due under an equitable distribution award. 

In this appeal, appellant asks us to apply both past and future 

excess disability payments made to his former wife for the 

benefit of their child to satisfy a finite arrearage of spousal 

support and a finite sum of unpaid retirement benefits due 

pursuant to the equitable distribution award. We hold that the 

credits he seeks are not available under Virginia law, and we 

affirm the trial court's ruling. 

 The social security disability benefits received by wife 

are for the benefit of the parties' child. See Whitaker, 18 Va. 

App. at 205-06, 442 S.E.2d at 431-32; see also Henry, 622 N.E.2d 

at 809. Although our case law permits these sums, to the extent 

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they exceed husband's ongoing monthly child support obligation, 

to be applied to child support arrearages in the discretion of 

the court, see Skeens, 18 Va. App. at 159-60, 442 S.E.2d at 

435-36, we hold that any additional excess sums nevertheless are 

for the benefit of the child and may not be credited against 

obligations owed to wife in her capacity as a former spouse 

rather than as a custodial parent. 

 The principles governing credit for non-conforming support 

payments make this clear. "As a general rule, the obligor 

spouse may not receive credit for non-conforming . . . support 

payments. The rule is intended to avoid 'continuous trouble and 

turmoil.'" Wilderman v. Wilderman, 25 Va. App. 500, 505-06, 489 

S.E.2d 701, 704 (1997) (quoting Henderlite v. Henderlite, 3 Va. 

App. 539, 542, 351 S.E.2d 913, 914 (1987)) (citation omitted). 

Ordinarily, "two conditions must exist before credits will be 

given for non-conforming payments: (1) an agreement by the 

parties which modifies the terms or method of payment; and (2) 

no adverse affect on the support award." Id. at 506, 489 S.E.2d 

at 705; see Buxbaum v. Buxbaum, 20 Va. App. 181, 184-86, 455 

S.E.2d 752, 754-55 (1995) (refusing to allow husband credit 

against future spousal support obligation for additional 

payments made under terms of child support agreement because no 

agreement between parties to that effect). However, "an 

'unequivocal agreement' may not be necessary where 

non-conforming support payments 'substantially satisf[y] the 

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purpose and function of the support award . . . and [do] not 

vary the support award.'" Wilderman, 25 Va. App. at 508, 489 

S.E.2d at 706 (quoting Skeens, 18 Va. App. at 158, 442 S.E.2d at 

435). 

 We hold that a non-custodial parent's social security 

disability benefits paid to the custodial parent, beyond those 

amounts needed to satisfy current and past-due child support, do 

not, as a matter of law, "substantially satisf[y] the purpose 

and function of [a spousal] support award." See id. (emphasis 

added). Spousal support is awarded based on the circumstances 

that existed during the parties' prior marriage. See, e.g., 

Brown v. Brown, 5 Va. App. 238, 246, 361 S.E.2d 364, 368 (1987). 

Social security disability payments do not depend on the 

circumstances during the parties' prior marriage; those payments 

are solely for the benefit of the child and are based on the 

child's status as a dependent of the disabled parent. See, 

e.g., Henry, 622 N.E.2d at 808-09. Further, the custodial 

parent, in effect, receives the social security disability "in a 

kind of fiduciary capacity, with the obligation to expend it for 

the support of the [parties'] child[]." Poland v. Poland, 895 

S.W.2d 670, 672 (Mo. Ct. App. 1995) (holding husband was not 

entitled to offset monies he owed wife for child support against 

monies wife allegedly owed him pursuant to property settlement 

agreement because wife received child support monies in trust 

for benefit of children). Therefore, we hold that a disabled, 

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non-custodial parent may not receive credit for social security 

disability payments in excess of that due for child support as 

against past-due spousal support.2 For the same reasons, we hold 

that the non-custodial parent also may not receive credit 

against monies due his former spouse pursuant to an equitable 

distribution award. See, e.g., Lightburn v. Lightburn, 22 Va. 

App. 612, 619, 472 S.E.2d 281, 284 (1996) (noting that purpose 

of equitable distribution award is to divide marital wealth and 

that "'[t]he clear legislative intent embodied in [statutes] is 

to maintain an appropriate separation between considerations of 

child or spousal support and considerations of an equitable 

distribution of marital wealth'" (citation omitted)). 

 For these reasons, we affirm the trial court's ruling. 

Affirmed. 

 2

 We do not decide whether payment of monthly disability 

benefits in excess of the amount of court-ordered child support 

may serve as a material change in circumstances justifying 

modification of an ongoing spousal support award. Here, 

husband's spousal support arrearages accumulated before husband 

became disabled and, therefore, were fixed and not subject to 

modification. 

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