1

Filed 12/18/14 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re the Marriage of MELINDA and

DAVID DAUGHERTY

.

MELINDA DAUGHERTY,

Appellant,

v.

DAVID DAUGHERTY,

Respondent.

N APA COUNTY DEPARTMENT OF

CHILD SUPPORT SERVICES,

Respondent. A13 8872

( Napa County

Super. Ct. No. 26

- 28036 )2

THE COURT:

The opinion filed herein on December 15 , 2014 is ordered modified as follows.

First, the caption is modified to add “ In re the Marriage of MELINDA and DAVID

DAUGHERTY. ”

Second, the attorney page is modified to add the name and title, “Catherine Ongiri,

Deputy Attorney General” to the final listing. The full paragraph should now read:

Kamala D. Ha rris, Attorney General of California, Julie Weng

- Gutierrez,

Senior Assistant Attorney General, Linda M. Gonzalez, Supervising Deputy

Attorney General, Catherine Ongiri, Deputy Attorney General, and Sharon

Quinn, Deputy Attorney General, for Respondent.

Dated: ___________________ Signed: _______________________1

Filed 12/15/14 (unmodified version) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

MELINDA DAUGHERTY,

Appellant,

v.

DAVID DAUGHERTY,

Respondent;

NAPA COUNTY DEPARTMENT OF
CHILD SUPPORT SERVICES,

Re spondent

. A138872

(Napa County Super. Ct. No. 26

- 28036)

Melinda Daugherty appeals an order of the trial court modifying the child support

paid by David Daugherty. 1 She contends the court miscalculated David’s support

obli gation by failing to include in his income derivative S ocia l S ecurity disability benefits

Melinda receives on behalf of their children

— benefits they are entitled to because of

David ’s disability. We shall affirm the order

.

I. BACKGROUND

David and Melinda’ s two children lived with Melinda, and David paid child

support. T he Napa County Department of Child Support Services filed a motion to

modify David’s child support obligation . (Fam. Code, 2 § 17400 et seq.)

1 Because Melinda Daugherty and David Daugherty share a last name, we shall refer to them by their first names. We intend no disrespect by this designation.

2 All undesignated statutory references are to the Family Code.2

After a hearing, the court found that David’ s income

, for purposes of calculating

child support

, was the monthly Social S ecurity disability payment he received

. The court

then ordered him to pay a portion of that to Melinda as child support

. The court also

found Melinda received $796 per month in derivative Social Security disability benefits

as the representative payee of the children b as ed on David’s disability. (42 U.S.C.

§ 402 (d).) Melinda argued these benefits should be treated as part of David’s income

when calculating his monthly income fo r purpose s of his support obligation. The court

disagreed with Melinda’s position and concluded the derivative benefits were the income

of the children, not of David. Under the court’s order, the $796 in derivative disability

benefits would partially sat isfy David’s support obligation ; the monthly benefits would

be credited first toward his current child support, and any excess would be credited to pay

off arrears.

II. DISCUSSION

Melinda contends the trial court committed an error of law when it failed to treat

the $796 in derivative disability payments as David’s income for purposes of calculating

his child support obligation. 3 For this argument, she relies on section 4058, subdivision

(a), which provides in pertinent part that “[t]he annual gross income of each parent means

income from whatever source derived ,” and that it includes Social S ecurity benefits. 4

The payments in dispute are paid to Melinda on behalf of the children as a result

of David’s disability pursuant to the federal Social Security Act, under which every child

3 We review questions of law de novo. ( Elsenheimer v. Elsenheimer (2004) 124 Cal.App.4th 1532, 1536

– 1537.)

4 Section 4058, subdivision (a) provides in pertinent part: “The annual gross income of each parent means income from whatever source derived .

. . and includes, but is not limited to, the following: [¶] (1) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article.”3

of an individual entitled to disability insurance benefits who meets certain requirements

“shall be entitled to a child’s insurance benefit.” (42 U.S.C. § 402(d).) 5

Melind a does not appear to contend that David should not have received credit for

the amount of the derivative payments made on his behalf to the children, and indeed,

such a contention would necessarily fail. Section 4504, subdivision (b) , provides in

pertinent part: “ If the court has ordered a noncustodial parent to pay for the support of a

child, payments for the support of the child made by the federal government pursuant to

the Social Security Act . . . because of the retirement or disability of the noncustodial

parent and received by the custodial parent or ot her child support obligee shall be

credited toward the amount ordered by the court to be paid by the noncustodial parent for

support of the child unless the payments made by the federal government were taken into

consideration by the court in determining t he amount of support to be paid.” (See In re

Marriage of Denny (1981) 115 Cal.App.3d 543 , 553

– 554.)

T hus, t he trial court did precisely what section 4504, subdivision (b) contemplates:

it credited the amount of the derivative disability benefits towar d David’s child support

payments without taking the payments into account in determining the amount of support

he should pay

.

Melinda offers no authority for her contention that the derivative benefits

constitute David’s income for purposes of section 4 058, subdivision (a), and we are

aware of none. As stated in In re Marriage of Henry (2005) 126 Cal.App.4th 111, 119,

“ [a ] lthough the language of section 4058 is expansive, it is not limitless. Every type of

income specified by section 4058, subdivision[ ] (a) . . . is money actually received by the

support

- paying parent

. . . . ” The payments at issue, however, were received not by

David but by Melinda as the children’s representative payee

. Moreover, a s we have

noted, 42 U.S.C. section 402(d) provides t hat qualifying children of a disabled person

“shall be entitled” to derivative benefits. That is, David was not entitled to the payments,

5 When a beneficiary is under the age of 18, disability payments are generally made to a representative payee. (20 C.F.R. 404.2010(b).)4

his children were. Social Security regulations confirm that the child, not the disabled

parent, is entitled to the c hild’s benefits. (20 C.F.R. 404.350 et seq.) As explained in In

re Unisys Corp. Long

- Term Disability Plan ERISA Litig. (3d Cir. 1996) 97 F.3d 710, 716,

Social Security disability benefits awarded to a disabled person’s dependents “are

deemed to be the pr operty of the wife or child.”

W e conclude the trial court correctly omitted the children’s derivative Social

Security disability benefits in its calculation of David’s income.

III. DISPOSITION

The order appealed from is affirmed.5 __________ _______________ Rivera, J.

We concur:

_________________________ Ruvolo, P. J.

_________________________ Reardon, J.

A1388726

Daugherty v. Daugherty (A138872)

Trial court: Napa County

Trial judge: Hon. Philip A. Champl in

Attorneys:

Melinda Daugherty for Appellant

David Daugherty for Respondent

Kamala D. Harris, Attorney General of California, Julie Weng

- Gutierrez, Senior

Assistant Attorney General, Linda M. Gonzalez, Supervising Deputy Attorney General,

and Sharon Q uinn, Deputy Attorney General, for Re spondent